United Nations Convention on the Rights of the Child: Article-by-Article Commentary 9781509954469, 9781509941803

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PREFACE This Commentary covers the UN Convention on the Rights of the Child (CRC) as well as its three Optional Protocols and provides a detailed analysis of each Article of the Convention. The work updates and expands my German-language Kinderrechtskonvention mit Zusatzprotokollen. Handkommentar (i.e. Commentary on the Convention on the Rights of the Child with Optional Protocols), published by Nomos as first edition in 2013 and as second edition in 2017. The present English-language version almost entirely omits references to domestic German law, as contained in the Kinderrechtskonvention mit Zusatzprotokollen, while references to international human rights law were extended. Like almost any scholarly text, also this Commentary has unavoidable gaps and omissions. The Commentary does not deal with the First Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the Second Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography in form of a detailed and in-depth article-by-article analysis. Rather, their main stipulations and objectives are elucidated as part of the respective explanations of the relevant provisions of the CRC. However, the Third Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure is analysed independently in an overview at the end of this book. Furthermore, the Commentary does not cover all topics, nor could it. It mainly focuses on the work and recommendations of the UN Committee on the Rights of the Child (CRC Committee). Over the last three decades, the CRC Committee, the Convention’s monitoring body, has taken a very active role in the understanding and interpretation of the CRC. It has passed, among others, 24 General Comments in roughly 20 years and nearly 900 Concluding Observations since the early 1990 s. The Commentary considers all General Comments and a significant number of the Concluding Observations, as well as various versions of the CRC Committee’s Reporting Guidelines. All these documents, albeit being legally non-binding, provide important interpretive guidance on the aims and for the implementation of the Convention. The Commentary builds on the understanding that children’s rights form part of the legal discipline of international human rights law. Irrespective of the considerable value of interdisciplinary studies on children’s rights, the CRC is a legal treaty, which mainly has to be understood in legal terms. With all their specificities, international children’s rights remain an area of international human rights law, which imposes obligations and responsibilities for those States that have ratified the relevant international instruments. Therefore, insights and findings from other disciplines are included on a limited basis and just to the extent that they have a bearing on the legal interpretation of a provision or its implementation. The Commentary takes into account perspectives of other, universal and regional, human rights instruments. Such perspectives are not only examined as part of the introduction at the beginning of this book, but also in the context of each Article as well as in the final chapter of each Article where the provision is put in a wider human rights context. This legal comparison places special emphasis on the “International Bill of Rights”, i.e. the International Covenants on Civil and Political Rights as well as on Economic, Social and Cultural Rights. Furthermore, a particular focus is laid on the rights and fundamental freedoms enshrined in the European Convention on Human Rights. Finally, to further contextualise the provisions of the CRC within the general human rights setting, the Commentary also takes into consideration reports and resolutions of UN Special Rapporteurs and the UN General Assembly, the case-law of

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Preface international courts and recommendations of other international monitoring bodies as well as on scholarly works in the field of international law. The preparation of a Commentary, especially in a foreign language, takes time and requires support. In essence, this work has been last updated in summer 2020. Only partially, it was possible to incorporate more recent decisions and scholarly articles. I received linguistic assistance from Thomas Hardaker in the translation of an early draft, and from native speakers and copyeditors at Nomos, Beck and Hart, who cleaned up the last version of my Commentary from remaining grammar and expression errors. I am deeply grateful for this help. In particular, I would like to thank the research assistants at my chair for their diligent and meticulous verification of the footnotes and their proofreading. Without their tireless commitment, this book would not have been completed. My warmest thanks thus go to Matthias Grundei, Antonia Kuhn, Rico Neidinger, Dorina Schmidt and Henri Weber. The publishers Nomos, Beck and Hart have given the present Commentary benevolent and extremely reliable support. I would like to express my special gratitude to Dr. Matthias Knopik from Nomos.

Würzburg, January 2021

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Stefanie Schmahl

A. ABBREVIATIONS ACERWC ACHPR ACHR AComHPR ACRWC ACtHPR CAT CED CEDAW Committee CEDAW CERD Committee CESCR Committee CETS cf. CIA CJEU CMW Committee CMW CoE CPT CRC Committee CRC Doc. DVD e.g. ECHR EComHR ECOSOC ECPT ECRI ECSR ECtHR ed(s). edn. ESC et al. et seq. ETS EU FCNM FRA GDPR i.e. IAComHR IACtHR ibid. ICC Statute ICC ICCPR ICERD ICESCR ICJ ICRC

African Committee of Experts on the Rights and Welfare of the Child African Charter on Human and Peoples’ Rights American Convention on Human Rights African Commission on Human and Peoples’ Rights African Charter on the Rights and Welfare of the Child African Court on Human and Peoples' Rights Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Protection of All Persons from Enforced Disappearance Committee on the Elimination of Discrimination against Women Convention on the Elimination of All Forms of Discrimination against Women Committee on the Elimination of Racial Discrimination Committee on Economic, Social and Cultural Rights Council of Europe Treaty Series confer Central Intelligence Agency Court of Justice of the European Union Committee on Migrant Workers Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Council of Europe European Committee for the Prevention of Torture Committee on the Rights of the Child Convention on the Rights of the Child Document Digital Versatile Disc exempli gratia European Convention on Human Rights European Commission on Human Rights Economic and Social Council European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment European Commission against Racism and Intolerance European Committee of Social Rights European Court of Human Rights editor(s) edition European Social Charter et alii et sequens/et sequentia European Treaty Series European Union Framework Convention for the Protection of National Minorities Fundamental Rights Agency of the European Union EU General Data Protection Regulation id est Inter-American Commission on Human Rights Inter-American Court of Human Rights ibidem Rome Statute of the International Criminal Court International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Court of Justice International Committee of the Red Cross

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A. Abbreviations ICRMW ICRPD ICTY id. ILM ILO lit. LNOJ LNTS mn(s). NGO No(s). OAU OAU Refugee Convention OHCHR OJ EU OPAC OPIC OPSC p. PACE para./paras SCSL Suppl. TEU TFEU UDHR UK UN UNESCO UNHCR UNICEF UNRIC UNTS USA USSR v. VCLT Vol. WHO

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International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Convention on the Rights of Persons with Disabilities International Criminal Tribunal for the former Yugoslavia idem International Legal Materials International Labour Organization litera League of Nations Official Journal League of Nations Treaty Series marginal note(s) Non-Governmental Organisation number(s) Organization of African Unity Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa Office of the United Nations High Commissioner for Human Rights Official Journal of the European Union Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography page(s) Parliamentary Assembly of the Council of Europe paragraph(s) Special Court for Sierra Leone Supplement Treaty on European Union Treaty on the Functioning of the European Union Universal Declaration of Human Rights United Kingdom United Nations United Nations Educational, Scientific and Cultural Organization United Nations High Commissioner for Refugees United Nations International Children's Emergency Fund United Nations Regional Information Centre United Nations Treaty Series United States of America Union of Soviet Socialist Republics versus Vienna Convention on the Law of the Treaties Volume World Health Organization

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B. Bibliography Taefi, Nura, The Synthesis of Age and Gender: Intersectionality, International Human Rights Law and Marginalisation of the Girl-Child, International Journal of Children’s Rights 17 (2009), p. 345-376. Tanenhaus, David S., The Elusive Juvenile Court: Its Origins, Practices, and Re-inventions, in: Feld, Barry/Bishop, Donna (eds.), The Oxford Handbook of Juvenile Crime and Juvenile Justice, 2013, p. 899. Teitz, Louise Ellen, Malta Process and Cross-cultural Aspects in Family Disputes, in: Jänterä-Jareborg, Maarit (ed.), The Child’s Interests in Conflict, 2016, p. 163-183. Tettinger, Peter/Stern, Klaus (eds.), Kölner Gemeinschaftskommentar zur Europäischen GrundrechteCharta, 2006. Theurer, Karina, Durch Referendum bestätigte Amnestiegesetze in Fällen gewaltsamen Verschwindenlassens unvereinbar mit der Amerikanischen Menschenrechtskonvention, Europäische Grundrechte Zeitschrift 2012, p. 682-693. Thorgeirsdóttir, Herdís, Article 13: The right to freedom of expression, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 13, 2006. Thornberry, Patrick, Indigenous Peoples and Human Rights, 2002. Thornberry, Patrick, The International Convention on the Elimination of all Forms of Racial Discrimination. A Commentary, 2016. Thronson, David B., Citizenship and Rights of Children, in: Todres, Jonathan/King, Shani M. (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 223-236. Thukral, Enakshi Ganguly, Budget for children, in: Nolan, Aoife/O’Connell, Rory/Harvey, Coling (eds.), Human Rights and Public Finance, 2013, p. 139-162. Tobin, John (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019. Tobin, John, Children’s Right to Health, in: Kilkelly, Ursula/Liefaard, Ton (eds.), International Human Rights of Children, 2019, p. 277-298. Tobin, John, Fixed Concepts but Changing Conceptions: Understanding the Relationship Between Children and Parents under the CRC, in: Ruck, Martin/Peterson-Badali, Michele/Freeman, Michael (eds.), Handbook of Children’s Rights: Global and Multidisciplinary Perspectives, 2016, p. 53-68. Tobin, John, Justifying Children’s Rights, International Journal of Children’s Rights 21 (2013), p. 395-441. Tobin, John, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, Harvard Human Rights Journal 23 (2010), p. 13-50. Tobin, John, The Right to Health in International Law, 2011. Tobin, John, Time to Remove the Shackles: The Legality of Restraints on Children Deprived of their Liberty under International Law, International Journal of Children’s Rights 9 (2001), p. 213-239. Tobin, John, Understanding Children’s Rights: A Vision beyond Vulnerability, Nordic Journal of International Law 84 (2015), p. 155-182. Todres, Jonathan, Analyzing the opposition to US ratification of the UN Convention on the Rights of the Child, in: Todres, Jonathan/Wojick, Mark/Revaz, Cris (eds.), The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification, 2006, p. 19-32. Todres, Jonathan, Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and its Early Case Law, Columbia Human Rights Law Review 30 (1998), p. 159-200. Todres, Jonathan, Violence, Exploitation, and the Rights of the Child, in: Kilkelly, Ursula/Liefaard, Ton (eds.), International Human Rights of Children, 2019, p. 215-237. Tomaševski, Katarina, Human Rights Obligation in Education. The 4-A scheme, 2006. Tomaševski, Katarina, Right to Education Primer 3: Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, 2001. Tomuschat, Christian, Adaptation of Human Rights to Cultural Specificities, Die Friedens-Warte 93 (2020), p. 12-32. Tomuschat, Christian, Human Rights: Between Idealism and Realism, 3rd edn. 2014. Tomuschat, Christian, Mehr Schutz für die Schutzlosen: Die beiden Fakultativprotokolle zu dem Übereinkommen über die Rechte des Kindes, Vereinte Nationen 2002, p. 89-93.

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B. Bibliography Tomuschat, Christian, Menschenrechte und kulturelle Traditionen, Europäische Grundrechte Zeitschrift 2016, p. 6-17. Tomuschat, Christian, The Right to Life – Legal and Political Foundations, in: Tomuschat, Christian/LaGrange, Evelyne/Oeter, Stefan (eds.), The Right to Life, 2010, p. 3-18. Tomuschat, Christian, Verwirrung über die Kinderrechte-Konvention der Vereinten Nationen, in: Ruland, Franz/von Maydell, Bernd/Papier, Hans-Jürgen (eds.), Verfassung, Theorie und Praxis des Sozialstaats, Festschrift für Hans F. Zacher, 1998, p. 1143-1161. Tretter, Hannes, Entwicklung und gegenwärtige Bedeutung der Internationalen Sklavereiverbote im Bewusstsein der Menschenrechte, in: Steurer, Dorothea/Tretter, Hannes/Nowak, Manfred (eds.), Festschrift für Felix Ermacora, 1988, p. 527-574. Triffterer, Otto/Ambos, Kai (eds.), The Rome Statute of the International Criminal Court. A Commentary, 3rd edn. 2016. Trimmings, Katarina/Beaumont Paul (eds.), International surrogacy arrangements. Legal regulation at the international level, 2013. Uerpmann-Wittzack, Robert, Höchstpersönliche Rechte und Diskriminierungsverbot, in: Ehlers, Dirk (ed.), Europäische Grundrechte und Grundfreiheiten, 4th edn. 2015, § 3, p. 81-112. Uerpmann-Wittzack, Robert, Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zum Familienrecht seit 2014, Zeitschrift für das gesamte Familienrecht 2016, p. 1897-1902. Uerpmann-Wittzack, Robert/Jankowska-Gilbert, Magdalena, Die Europäische Menschenrechtskonvention als Ordnungsrahmen für das Internet, MultiMedia und Recht 2008, p. 83-89. Uerpmann-Wittzack, Robert/Prechtl, Alina, Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zum Familienrecht seit Ende 2016, Zeitschrift für das gesamte Familienrecht 2020, p. 469-476. Ukrow, Jörg, Internationaler und europäischer Jugendmedienschutz. Bestandsaufnahme, Entwicklungstendenzen und Herausforderungen, in: Recht der Jugend und des Bildungswesens 2017, p. 278-296. Ulfstein, Geir, Individual Complaints, in: Keller, Helen/Ulfstein, Geir (eds.), UN Human Rights Treaty Bodies, 2012, p. 73-115. von Ungern-Sternberg, Antje, United Nations Children’s Fund (UNICEF), in: Wolfrum, Rüdiger (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com. Urlen, Marc, Medienkompetenzen in der digitalen Welt. Ein Überblick zu Mediennutzung und Medienkompetenz bei Kindern und Jugendlichen aus sozialwissenschaftlicher Sicht, Recht der Jugend und des Bildungswesens 2017, p. 297-313. Van Alebeek, Rosanne/Nollkaemper, André, The Legal Status of Decisions by Human Rights Treaty Bodies in National Law, in: Keller, Helen/Ulfstein, Geir (eds.), Human Rights Treaty Bodies, 2011, p. 356-413. Van Bueren, Geraldine, Article 40: Child Criminal Justice, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 40, 2005. Van Bueren, Geraldine, Child Sexual Abuse and Exploitation: A Suggested Human Rights Approach, International Journal of Children’s Rights 2 (1994), p. 45-59. Van Bueren, Geraldine, Child-oriented Justice. An International Challenge for Europe, International Journal of Law and Family 6 (1992), p. 381-399. Van Bueren, Geraldine, The International Law on the Rights of the Child, 1995. Van Bueren, Geraldine, The International Legal Protection of Children in Armed Conflicts, International and Comparative Law Quarterly 43 (1994), p. 809-826. Van Loon, Hans, Protecting Children Across Borders: The Interaction between the CRC and The Hague Children’s Convention, in: Liefaard, Ton/Sloth-Nielsen, Julia (eds.), The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead, 2017, p. 31-46. Vandenhole, Wouter, Article 26: The Right to Benefit from Social Security, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 26, 2007. Vandenhole, Wouter, Economic, Social and Cultural Rights in the CRC: Is there a Legal Obligation to Cooperate Internationally for Development? International Journal of Children’s Rights 17 (2009), p. 23-63.

XXXVI

B. Bibliography Vandenhole, Wouter, Non-discrimination and Equality in the View of the UN Human Rights Treaty Bodies, 2005. Vandenhole, Wouter, The Procedures Before the UN Human Rights Treaty Bodies: Divergence or Convergence?, 2005. Vandenhole, Wouter/Türkelli, Gamze Erdem, The Best Interests of the Child, in: Todres, Jonathan/King, Shani M. (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 205-221. Vandenhole, Wouter/Türkelli, Gamze Erdem/Lembrechts, Sara, Children’s Rights. A Commentary on the Convention on the Rights of the Child and Its Protocols, 2019. Vandewiele, Tiny, Optional Protocol: The Involvement of Children in Armed Conflicts, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2006. Veerman, Philip E., Examining the UN Committee on the Rights of the Child through the Lens of Casteand Decent-Based Discrimination, in: Todres, Jonathan/King, Shani M. (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 513-540. Veerman, Philip E., The Rights of the Child and the Changing Image of Childhood, 1992. Verhellen, Eugeen, Children’s Rights and Education: A Three-track Legally Binding Imperative, School Psychology International 14 (1993), p. 199-208. Verhellen, Eugeen, Convention on the Rights of the Child, 1994. Verheyde, Mieke, Article 28: The Right to Education, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 28, 2005. Verheyde, Mieke/Goedertier, Geert, Articles 43-45: The UN Committee on the Rights of the Child, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006. Verschraegen, Bea, Die Kinderrechtskonvention, 1996. Viljoen, Frans, International Human Rights Law in Africa, 2nd edn., 2012. Villiger, Mark, Commentary on the 1969 Vienna Convention on the Law of Treaties, 2009. Vité, Sylvain/Boéchat, Hervé, Article 21: Adoption, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008. Vogt, Florian, Das Fakultativprotokoll betreffend den Verkauf von Kindern, Kinderprostitution und Kinderpornographie, in: von Schorlemer, Sabine (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 145-158. Völker, Mallory/Steinfatt, Gabriele, Die Kindesanhörung als Fallstrick bei der Anwendung der Brüssel IIa-Verordnung, Familie-Partnerschaft-Recht 2005, p. 415-419. Vomberg, Wolfgang/Nehls, Kyra, Rechtsfragen der internationalen Kindesentführung, 2002. Vuckovic Sahovic, Nevena/Doek, Jaap/Zermatten, Jean, The Rights of the Child in International Law, 2012. Walsh, Bernadette, The United Nations Convention on the Rights of the Child: A British View, International Journal of Family Law 5 (1991), p. 170-194. Walter, Tonio, Der Gesetzentwurf zur Beschneidung – Kritik und strafrechtliche Alternative, JuristenZeitung 2012, p. 1110-1117. Wapler, Friederike, Familie und Familienschutz im Wandel – zur Entwicklung des Familienbegriffs im öffentlichen Recht, Rechtswissenschaft 2014, p. 57-87. Wapler, Friederike, Kinderrechte und Kindeswohl, 2015. Wapler, Friederike, Religiöse Kindererziehung: Grenzen des Rechts, Recht der Jugend und des Bildungswesens 2015, p. 420-447. Wapler, Friederike, Sozialrechtliche Leistungen der Bildungsförderung für junge Flüchtlinge, Recht der Jugend und des Bildungswesens 2016, p. 345-363. Wascherfort, Guy, International Law and Child Soldiers, 2015. Wayne, Raymie, The Best Interests of the Child: A Silent Standard – Will You Know it When You Hear it?, Journal of Public Child Welfare 2 (2008), p. 33-49.

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B. Bibliography Weilert, A. Katarina, Das Kindeswohl und die Knochenmarkspende Minderjähriger aus verfassungsrechtlicher Perspektive, Rechtswissenschaft 2012, p. 292-329. Weiß, Irmgard, Der völkerrechtliche Schutz von Kindern in bewaffneten Konflikten, 1991. Weiß, Norman, Überblick über die Erfahrungen mit Individualbeschwerden unter verschiedenen Menschenrechtsabkommen, Archiv des Völkerrechts 42 (2004), p. 142-156. Weiß, Norman, UN-Konvention über die Rechte von Menschen mit Behinderung, MenschenRechtsMagazin 2006, p. 293-300. Weiß, Norman, Wäre ein Individualbeschwerdeverfahren auch im Rahmen der Kinderrechtskonvention sinnvoll? MenschenRechtsMagazin 2001, p. 85-97. Weitzel, Wolfgang, Das Haager Adoptionsübereinkommen vom 29.5.1993: Zur Interaktion der zentralen Behörden, Neue Juristische Wochenschrift 2008, p. 186-190. Welti, Felix, Barrierefreiheit als Rechtsbegriff, Die Öffentliche Verwaltung 2013, p. 795-801. Wenke, Daja, Age Assessment. Council of Europe member states’ policies, procedures and practices respectful of children’s rights in the context of migration, 2017. Wiater, Patricia, Rechtspluralismus und Grundrechtsschutz: Das Kölner Beschneidungsurteil, Neue Zeitschrift für Verwaltungsrecht 2012, p. 1379-1382. Wicks, Elizabeth, The Meaning of “Life”: Dignity and the Right to Life in International Human Rights Treaties, Human Rights Law Review 12 (2012), p. 199-219. Willow, Carolyne, Children’s Right to Be Heard and Effective Child Protection, 2010. Wolf, Anne-Katrin, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018. Wolf, Joachim, Ratifizierung unter Vorbehalt: Einstieg oder Ausstieg der Bundesrepublik Deutschland aus der UN-Konvention über die Rechte des Kindes? Zeitschrift für Rechtspolitik 1991, p. 374-378. Wolfrum, Rüdiger, The Progressive Development of Human Rights, in: Jekewitz, Jürgen/Klein Karl Heinz/ Kühne, Jörg Detlef/Petersmann, Hans/Wolfrum, Rüdiger (eds.), Des Menschen Recht zwischen Freiheit und Verantwortung – Festschrift für Karl Josef Partsch, 1989, p. 67-95. Woodhouse, Barbara B., The Child’s Right to Family, in: Todres, Jonathan/King, Shani M. (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 237-256. Wyttenbach, Judith, Übereinkommen über die Rechte des Kindes (CRC), in: Pollmann, Arnd/Lohmann, Georg (eds.), Menschenrechte. Ein interdisziplinäres Handbuch, 2012, p. 317-319. Yadlapalli, Vishnupriya, Implementation of the United Nations Convention on the Rights of the Child in Indian Legal System, in: Cvejić Jančić, Olga (ed.), The Rights of the Child in a Changing World, 2016, p. 167-189. Yee, Sienho, The Right to Take Part in Cultural Life under Article 15 of ICESCR, International Comparative Law Quarterly 47 (1998), p. 905-923. Zampas, Christina/Gher, Jaime, Abortion as a Human Rights-International and Regional Standards, Human Rights Law Reveiw 8 (2008), p. 249-294. Ziemann, Sascha/Ziethen, Jörg, Die neue EU-Richtlinie zur Bekämpfung von Kindesmissbrauch und Kinderpornografie, Zeitschrift für Rechtspolitik 2012, p. 168-171. Ziemele, Ineta, Article 7: The right to birth registration, name and nationality, and the right to know and be cared for by parents, in: Alen, André/Vande Lanotte, Johan/Verhellen, Eugène/Ang, Fiona/ Berghmans, Eva/Verheyde, Mieke (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007. Zimmermann, Andreas (ed.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol, A Commentary, 2011. Zito, Dima, Zwischen Angst und Hoffnung. Kindersoldaten als Flüchtlinge in Deutschland, 2009. Zürcher, Raphaela, Kindesentführung und Kindesrechte, 2005.

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C. GENERAL COMMENTS (Joint) General Comment

Number Year Full title of the Comment

Submitted date

UN document number

General Comment

No. 1

2001 General comment No. 1 (2001): Article 29 (1), the aims of education

17 April 2001

CRC/GC/ 2001/1

General Comment

No. 2

15 Nov. 2002 2002 General comment No. 2 (2002): The role of independent national human rights institutions in the promotion and protection of the rights of the child

CRC/GC/ 2002/2

General Comment

No. 3

2003 General comment No. 3 (2003): HIV/AIDS and the rights of the child

General Comment

No. 4

2003 General comment No. 4 (2003): 21 July 2003 Adolescent health and development in the context of the Convention on the Rights of the Child

CRC/GC/ 2003/4

General Comment

No. 5

2003 General comment No. 4 (2003): General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6)

27 Nov. 2003

CRC/GC/ 2003/5

General Comment

No. 6

2005 General comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin

01 Sept. 2005

CRC/GC/ 2005/6

General Comment

No. 7

2005 General comment No. 7 (2005): Implementing child rights in early childhood

20 Sept. 2006

CRC/C/GC/7/ Rev.1

General Comment

No. 8

02 March 2007 CRC/C/GC/8 2006 General comment No. 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia)

General Comment

No. 9

2006 General comment No. 9 (2006): The rights of children with disabilities

27 Feb. 2007

CRC/C/GC/9

General Comment

No. 9 Corr.1

2006 General comment No. 9 (2006): The rights of children with disabilities – Corrigendum

13 Nov. 2007

CRC/C/GC/9/ Corr.1

General Comment

No. 10

2007 General comment No. 10 (2007): Children’s rights in juvenile justice

25 April 2007

CRC/C/GC/10

General Comment

No. 11

2009 General comment No. 11 (2009): Indigenous children and their rights under the Convention

12 Feb. 2009

CRC/C/GC/11

General Comment

No. 12

2009 General comment No. 12 (2009): The right of the child to be heard

20 July 2009

CRC/C/GC/12

General Comment

No. 13

2011 General comment No. 13 (2011): The right of the child to freedom from all forms of violence

18 April 2011

CRC/C/GC/13

General Comment

No. 14

2013 General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)

29 May 2013

CRC/C/GC/14

General Comment

No. 15

2013 General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24)

17 April 2013

CRC/C/GC/15

17 March 2003 CRC/GC/ 2003/3

XXXIX

C. General Comments (Joint) General Comment

Number Year Full title of the Comment

Submitted date

UN document number

General Comment

No. 16

2013 General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights

17 April 2013

CRC/C/GC/16

General Comment

No. 17

2013 General comment No. 17 (2013) 17 April 2013 on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts (art. 31)

CRC/C/GC/17

No. 18 Joint General Recommendation/General Comment

2014 Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child on harmful practices

14 Nov. 2014

CEDAW/C/GC/ 31-CRC/C/GC/ 18

General Comment

No. 19

2016 General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4)

20 July 2016

CRC/C/GC/19

General Comment

No. 20

2016 General comment No. 20 (2016) on the implementation of the rights of the child during adolescence

06 Dec. 2016

CRC/C/GC/20

General Comment

No. 21

2017 General comment No. 21 (2017) on children in street situations

21 June 2017

CRC/C/GC/21

Joint General Comment

No. 22

16 Nov. 2017 2017 Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration

CMW/C/GC/3CRC/C/GC/22

Joint General Comment

No. 23

16 Nov. 2017 2017 Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return

CMW/C/GC/4CRC/C/GC/23

General Comment

No. 24

2019 General comment No. 24 (2019) on children’s rights in the child justice system

CRC/C/GC/24

XL

18 Sept. 2019

D. INTRODUCTION INTO THE CONVENTION ON THE RIGHTS OF THE CHILD I. Historical Background, Motives, and Object and Purpose of the CRC in a Nutshell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Origin, Drafting and Historical Development of the CRC . . . . . . . . . . . . . . . . . . . III. Embedding of the CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Review and Comparison of the Past and Current Situation of Children’s Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Advantages and Shortcomings of the CRC Compared to Other Universal Human Rights Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Significance of the CRC for the National Legal Systems . . . . . . . . . . . . . . . . . . . . . . V. Basic Design and Structure of the CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Core Standards and Main Objective of the CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 8 11 11 24 31 34 39

I. Historical Background, Motives, and Object and Purpose of the CRC in a Nutshell The necessities to specifically protect children and, even more, to consider children 1 as individual rights-holders have only recently been acknowledged. The reason for this is that the term “childhood” only generally entered into the awareness of societies at the beginning of the modern era.1 Roman law clearly saw the child as the property of parents with the right of the father to decide on the life and death of the child. Children below the age of seven years were deemed not to be able to speak.2 During the Middle Ages, children were regularly considered as “small adults”,3 even though recent childhood research assumes that age-specific skills were also important in the distribution of tasks in the Middle Ages and that a distinction of some kind and to some degree was made between the child and the adult at that time, too.4 However, the perception of the child as a person at the discretion of parents persisted throughout the Middle Ages and most of the following centuries. The development of today’s social and cultural understanding of childhood was 2 initiated by individual moralists during the 16th and 17th centuries. In the course of the 20th century, their philosophical approach became increasingly pursued and intensified.5 Particularly noteworthy are the philosophical initiatives of the Swedish reform teacher Ellen Key (1848-1926)6 and the Polish paediatrician Henryk Goldszmit, better known un-

1 As to the historical development see A Holzscheiter, Children’s Rights in International Politics, 2010, p. 100 et seq.; M Freeman, A Magna Carta for Children? Rethinking Children's Rights, 2020, p. 20 et seq. 2 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 4. 3 F Humbert, The Challenge of Child Labour in International Law, 2009, p. 15. 4 See H Cunningham, Die Geschichte des Kindes in der Neuzeit, 2006, p. 50 et seq.; D Archard, Children, Rights, and Childhood, 3rd edn. 2014, Part I. 5 For more detail see C Steindorff-Classen, in: S Elsen/K Weber (eds.), Aktiv für Kinderrechte, 2010, p. 11, at 12; J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 46 et seq.; G Lenzer, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 11 et seq., with particular reference to P Ariès, L’Enfant et la vie familiale sous l’Ancien Regime, 1960. 6 E Key, The Century of the Child, 1909. For an overall appreciation of Key’s influence on the rights of the child in the 20th century, see also J Dekker, The Century of the Child Revisited, International Journal of Children’s Rights 8 (2000), p. 133 et seq.

1

D. Introduction into the Convention on the Rights of the Child

der his pen name Janusz Korczak (1878-1942),7 who were both particularly committed to treat children with respect and to recognise them as persons with own rights. 8 These children’s rights pioneers insisted that children are not people of tomorrow but human beings of today, with human rights and dignity that should be respected.9 Ellen Key, for instance, advocated early against contemporary societal mainstreaming and in favour of abolishing the social stigma and legal label of “illegitimate” children, arguing that the legal status of a child based on the nature of his or her parent’s relationship harms the child because the child has, in fact, done nothing wrong.10 She further advocated for compulsory education for all children, starting at the primary school level.11 Janusz Korczak can be considered as the greatest pioneer in the field of children’s rights; his perceptions of children as human beings of today was revolutionary at the time he presented and practiced them as head of a Jewish orphanage in Warsaw.12 In particular, he did not see education as a mere means of transferring knowledge but rather as a process that respects the child’s dignity in a participatory manner.13 In a similar way, Eglantyne Jebb (1876-1928), an English teacher, made an important practical contribution to the creation of international children’s rights law. She did not only draft and advocate the 1924 League of Nations Declaration of the Rights of the Child14 but also established the “Save the Children Foundation” (today known as the “International Save the Children Alliance”) in Great Britain shortly after World War I for the purpose of providing the victims of war, particularly children, with all necessary relief for their suffering. 15 At present, it is generally acknowledged that childhood represents a special period in the life of persons, in which the foundations for their future lives are laid down through development and education.16 This sensitisation is accompanied by the recognition that legally binding rules are necessary to protect and ensure children’s participatory abilities and rights. 3 The beginning of the development of children’s rights in international law is marked by the enactment of the Geneva Declaration of the Rights of the Child on 26 September 1924.17 Article 23 of the Charter of the League of Nations entrusted this organisation with the general supervision over the execution and enforcement of agreements with regard to the traffic in women and children and bound Member States to endeavour to secure and maintain fair and humane conditions of labour for men, women and children. Against this background, several NGOs began actively contributing to the impleJ Korczak, The Right of the Child to Respect, 1928. See F Wapler, Kinderrechte und Kindeswohl, 2015, p. 74 et seq.; M Liebel, Kinderrechte – aus Kindersicht, 2009, p. 20 et seq.; id., Janusz Korczak – Pionier der Kinderrechte, 2013. 9 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 6; see also M Freeman, A Magna Carta for Children? Rethinking Children's Rights, 2020, p. 27 et seq. 10 E Key, The Century of the Child, 1909, p. 44-45. 11 E Key, The Century of the Child, 1909, at 203 et seq. 12 For a fuller account, see W Kerber-Ganse, Die Menschenrechte des Kindes. Die UN-Kinderrechtskonvention und die Pädagogik von Janusz Korczak, 2009; G Eichsteller, Janusz Korczak – His Legacy and its Relevance of Children’s Rights Today, International Journal of Children’s Rights 17 (2009), p. 337-391. 13 J Korczak, The Child’s Right to Respect (1928): Janusz Korczak’s Lectures on Today’s Challenges for Children, 2009, p. 18-19. See also N Peleg, The Child’s Right to Development, 2019, p. 27-30, and G Lenzer, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 11, at 25-27. 14 For more detail see → Introduction mns. 3, 12. 15 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 5; Y Beigbeder, Children, in: T Weiss/S Daws (eds.), The Oxford Handbook on the United Nations, 2008, p. 511, at 512. 16 See F Humbert, The Challenge of Child Labour in International Law, 2009, p. 16; N Peleg, The Child’s Right to Development, 2019, p. 186 et seq. See also N Dethloff/A Maschwitz, Kinderrechte in Europa – wo stehen wir?, Familie-Partnerschaft-Recht 2012, p. 190. 17 LNOJ 1924, Special Suppl. No. 21, p. 43. 7 8

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I. Historical Background, Motives, and Object and Purpose of the CRC in a Nutshell

mentation of child welfare. Lobbying from the non-governmental organisation “Union internationale de secours aux enfants”, a coalition of national children’s funds led by “Safe the Children UK”-founder Eglantyne Jebb, prompted the League of Nations to adopt the 1924 Geneva Declaration, the text of which was drafted by Jebb.18 By adopting this juridical, but non-binding declaration of five basic principles, the protection of the natural, intellectual and material development of children was provided.19 A further important step towards the realisation of children’s rights was witnessed in the adoption of the Declaration of the Rights of the Child by the UN General Assembly on 20 September 1959. 20 This Declaration, like the text adopted in 1924, mirrored the contemporary perception of children in society, but was also legally non-binding. Up until the mid-20th century, the child was perceived primarily as an object of protection and care, as a recipient of treatment and beneficiary. Most importantly, the child was always considered from the perspective of adults. 21 The "Moscow Declaration of the Rights of the Child" of February 1918, written after the Russian Revolution and marked by remarkably emancipatory and anarchist ideas,22 found no approval at the international level at that time. The 1989 Convention on the Rights of the Child (CRC) was the first multilateral instrument ever to establish children’s rights in a binding, comprehensive and child-related form. This Convention has brought about a general change in direction of international politics and awareness in societies. The role of the child as a holder of own rights is evidenced by numerous provisions of the Convention that define the child’s true participation rights, which is particularly clear in the fundamental rule of Article 12 CRC.23 Since then, the child is no longer considered as a simple object of protection.24 The CRC was adopted by the UN General Assembly on 20 November 1989 and 4 opened for signature on 26 January 1990.25 From a formal perspective, the Convention is a prime example of international cooperation and a paradigm shift in international relations. Adopted in 1989, the Convention came into force on 2 September 1990 upon deposit of the 20th instrument of ratification pursuant to Article 49 para. 1 CRC.26 With its current 196 States Parties the CRC is – together with the four 1949 Geneva Conventions on international humanitarian law which have the same amount of States Parties – the world’s most widely ratified Convention and therefore stands out amongst

18 See A Plevin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 93, at 115; Y Beigbeder, Children, in: T Weiss/S Daws (eds.), The Oxford Handbook on the United Nations, 2008, p. 511, at 512. 19 A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91 (1992), p. 56, at 61; A Holzscheiter, Children’s Rights in International Politics, 2010, p. 124. 20 UN General Assembly Resolution 1386 (XIV), A/RES/1386 (XIV), 1959. For more detail see → Introduction mn. 14. 21 S von Schorlemer, Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 36. See also J Korczak, The Child’s Right to Respect (1928): Janusz Korczak’s Lectures on Today’s Challenges for Children, 2009, p. 24. 22 See M Liebel, Die Moskauer Deklaration der Rechte des Kindes von 1918, Sozialwissenschaftliche Literatur-Rundschau 38 (2015), p. 73-90; M Freeman, A Magna Carta for Children? Rethinking Children's Rights, 2020, p. 30. 23 C Steindorff-Classen, in: S Elsen/K Weber (eds.), Aktiv für Kinderrechte, 2010, p. 11, at 14 et seq.; eadem, Europäischer Kinderrechtsschutz nach dem Reformvertrag von Lissabon, Europarecht 2011, p. 19, at 20 and 23 et seq. 24 See U Kilkelly, The Best of Both Worlds for Children’s Rights?, Human Rights Quarterly 23 (2001), p. 308-326; K Scheiwe, Vom Objekt zum Subjekt? Kinderrechte zwischen Rechtsrhetorik und Realisierbarkeit, Kindschaftsrecht und Jugendhilfe 2009, p. 7-12. 25 UN General Assembly Resolution 44/25, A/RES/44/25, 20 November 1989. 26 See → Articles 46-54 mn. 3.

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D. Introduction into the Convention on the Rights of the Child

all other international human rights instruments.27 In the years 2013 to 2015, newly recognised States such as Montenegro, Timor-Leste and South Sudan acceded the Convention. Finally, and after a long struggle, also Somalia ratified the CRC in 2014.28 Only the United States of America, although having signed the Convention relatively early, is yet to ratify it.29 Nevertheless, the USA is a party to both substantial Optional Protocols to the CRC, i.e. the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (OPAC) and the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (OPSC).30 In view of the fact that all States worldwide except the USA have ratified the CRC, the central provisions of the Convention, in particular their general principles set forth in Articles 2, 3, 6 and 12 CRC, are now likely to have become international customary law.31 5 In recent years, two substantial Optional Protocols have served to supplement and concretise the Convention and to partially widen its material and personal scope. Importantly, the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict increased the minimum age for compulsory recruitment into the national armed forces from 15 years, under Article 38 para. 3 CRC, to 18 years of age in Article 1 OPAC. The Protocol was, after lengthy debates during drafting,32 adopted by the UN General Assembly on 25 May 2000.33 It entered into force on 12 February 2002 and is currently (as of May 2020) ratified by 170 States. OPAC was the direct result of a “Day of General Discussion” organised in 1992 by the CRC Committee34 and the ensuing UN Study on Children and Armed Conflict led by Graça Machel,35 which both underlined their full disagreement with the weak standards enshrined in Article 38 CRC. 6 The Second Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography was also adopted by the UN General Assembly on 25 May 2000.36 It entered into force on 18 January 2002 and counts, as of today, 176 States Parties. Unlike its sibling instrument OPAC, the motivation for OPSC did not arise from any dissatisfaction with the terms of those provisions under the CRC dealing with the sexual exploitation of children.37 Instead, the impetus for OPSC came largely from the (former) Commission on Human Rights38 in response to institutional pressures to address the persistence of the commercial sexual exploitation, due to the alarming magni-

27 Similarly, C Revaz, in: J Todres/M Wojcik/C Revaz (eds.), The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification, 2006, p. 9-18; W Heintschel von Heinegg, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, vol. VI/2, 2009, § 175 mn. 47. 28 See S Lux, Rechte des Kindes: 68. bis 70. Tagung 2015, Vereinte Nationen 2016, p. 82, at 82. 29 L LeBlanc, Reservations to the Convention on the Rights of the Child, International Journal of Children’s Right 4 (1996), p. 357-381. 30 On the role of children's rights in the USA, see in detail: N Demleitner, in: O Cvejić Jančić (ed.), The Rights of the Child in a Changing World, 2016, p. 349 et seq. 31 See S Lux, Rechte des Kindes: 68. bis 70. Tagung 2015, Vereinte Nationen 2016, p. 82, at 82. 32 See MA Drumbl/J Tobin, The Optional Protocol on Children and Armed Conflict, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1666, at 1672-1673. See also → Article 38 mn. 6. 33 UN General Assembly Resolution 54/263, A/RES/54/263, 25 May 2000. 34 CRC Committee, CRC/C/10, 1992, paras 61 et seq. See also → Article 38 mn. 6. 35 See UN General Assembly Resolution 48/157, A/RES/48/157, 1993, requesting the UN SecretaryGeneral to conduct the study on the one hand, and the Machel Report presented in 1996, A/51/306, 26 August 1996, p. 3 et seq., on the other hand. 36 UN General Assembly Resolution 54/263, A/RES/54/263, 25 May 2000. 37 See J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1713-1714. 38 The UN Commission on Human Rights was substituted in 2006 by the UN Human Rights Council.

4

I. Historical Background, Motives, and Object and Purpose of the CRC in a Nutshell

tude of the practices since the early 1990 s.39 OPSC is to a great degree the outcome of the three World Congresses on commercial sexual exploitation of children held in Stockholm (1996), in Yokohama (2001) and in Rio de Janeiro (2008).40 However, already during the drafting and upon its enactment, OPSC received harsh criticism. The Protocol was deemed unnecessary due to the fact that it failed, in relation to the Articles 34-35 CRC, to introduce new standards or to establish an effective enforcement mechanism. 41 In fact, OPSC does fail to bring substantial innovation to the law; child trafficking, child prostitution and child pornography are already prohibited by the operative text of the Convention itself.42 On the other hand, it has been demonstrated over recent decades that many human rights require numerous (even repetitive) treaties to ensure appropriate and effective implementation in the national legal orders. The repetition of certain principles can indeed serve to strengthen the rights of the children.43 Furthermore, OPSC establishes more concrete definitions of the terms “sale of children”, “child prostitution”, and “child pornography” and demands criminalisation of various acts of sexual exploitation as well as the establishment of extraterritorial jurisdiction and special rules for extradition.44 Therefore, the Protocol can be seen as an elaboration and concretisation of Articles 34 and 35 CRC, by substantially strengthening the levels of protection ensured by the Convention and by reinforcing the monitoring role played by the CRC Committee.45 As of today (May 2020), the Protocol enjoys a fairly high number of Contracting States. With the accession of the Marshall Islands, 176 countries have ratified the OPSC. The CRC experienced an additional boost with the entry into force of the Third 7 Optional Protocol to the CRC on a Communications Procedure (OPIC) which introduced not only an inter-State communications46 and an inquiry procedure in cases of serious and systematic violations of children’s rights,47 but also provides for an individual communications procedure before the UN Committee on the Rights of the Child (CRC Committee).48 After many years of political efforts,49 mainly supported and driven forward by the international NGO “Child Rights Connect”,50 the UN General Assembly See Commission on Human Rights, E/CN.4/RES/1994/90, 1994, para. 17. J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 17. Further see → Article 34 mn. 16. 41 See Commission on Human Rights, Report of the Working Group, E/CN.4/1995/95, 1995, paras 16 et seq.; E/CN.4/1996/101, 1996, paras 22 et seq. See also C Tomuschat, Mehr Schutz für die Schutzlosen: Die beiden Fakultativprotokolle zu dem Übereinkommen über die Rechte des Kindes, Vereinte Nationen 2002, p. 89, at 91. 42 See → Article 34 mn. 2; → Article 35 mn. 3. 43 F Vogt, in: S von Schorlemer (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 145, at 150 et seq. 44 For more detail, see the articles in: CB Hessick (ed.), Redefining child pornography law: crime, language, and social consequences, 2016. 45 See Commission on Human Rights, E/CN.4/2000/WG.14/12, 2000, p. 11. See also J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 17; UNICEF, Handbook on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, 2009, p. 2 et seq. 46 See Article 12 OPIC. 47 See Articles 13 and 14 OPIC. 48 See Articles 5 to 11 OPIC. See also → Individual Communications Procedure mn. 1. 49 For more detail see N. Weiß, Wäre ein Individualbeschwerdeverfahren auch im Rahmen der Kinderrechtskonvention sinnvoll?, MenschenRechtsMagazin 2001, p. 85-97; E Rossa, Kinderrechte: Das Übereinkommen über die Rechte des Kindes im internationalen und nationalen Kontext, 2013, p. 138 et seq., G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 370 et seq. 50 J Becker, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 33, at 37. 39 40

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D. Introduction into the Convention on the Rights of the Child

was finally able to agree on a finalised text of the Third Optional Protocol in December 2011,51 after the draft had been previously endorsed by the UN Human Rights Council.52 Since 28 February 2012, the Protocol is open for signature at the UN headquarters in New York. On 14 April 2014, three months after the deposit of the tenth instrument of ratification by Costa Rica, the Protocol came into force pursuant to Article 19 OPIC and has today (as of May 2020) a total number of 46 States Parties. Even though only a few dozens of individual communications have been brought before the CRC Committee so far, it is to be expected that OPIC will lead to a further strengthening of children’s rights in the long term, due to the subjective approach associated with the individual communications procedure. Similarly, the inquiry procedure under Article 13 OPIC must not be underestimated in terms of effectiveness. On its basis, the CRC Committee has the competence to act on its own initiative if it receives reliable indications of serious or systematic violations of the rights laid down in the Convention or in one of its substantive Optional Protocols.53 Inquiries may only be undertaken with respect to States Parties which have recognised the competence of the CRC Committee in this regard. However, at present, 23 countries have already submitted to this instrument. Only the inter-State communications procedure under Article 12 OPIC will presumably not be of major importance for the enforcement of the Convention’s rights.54 The possibility of a State complaint, which is also available under other universal human rights conventions, has only been used very rarely in practice.55

II. Origin, Drafting and Historical Development of the CRC 8

Compared to the elaboration of other UN human rights conventions, the historical development of the CRC and its process of elaboration are not particularly spectacular. 56 It was Poland that took the opportunity to submit a first draft of the CRC to the then UN Commission on Human Rights one year before the “International Year of the Child” in 1979, which included an impressive array of activities at the national and international levels.57 By proposing a children’s rights convention, Poland also sought to honour Janusz Korzac and popularise his views of children’s rights.58 The Polish draft included 28 articles and was based mainly upon the UN General Assembly’s Declaration of 1959 and supplemented merely by the inclusion of an optional implementation mechanism.59 It did not include a provision relating to children’s rights to participate in decision-making in matters affecting them.60 Moreover, the draft contained almost UN General Assembly Resolution 66/138, A/RES/66/138, 19 December 2001. OHCHR, Press Release of 17 June 2011. 53 For more detail see G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 379. See also → Individual Communications Procedure mn. 3. 54 See H Cremer, Neue Beschwerdemöglichkeit für Kinder, Vereinte Nationen 2014, p. 22, at 23. 55 See → Individual Communications Procedure mn. 2. 56 Different opinion (“tough negotiations”) by J Wyttenbach, in: A Pollmann/G Lohmann (eds.), Menschenrechte. Ein interdisziplinäres Handbuch, 2012, p. 317, at p. 317. 57 See the 1976 proclamation of the “International Year of the Child” for 1979 by the UN General Assembly, A/RES/31/169, 21 December 1976. Further see A Holzscheiter, Children’s Rights in International Politics, 2010, p. 144 et seq.; M Black, Children First: The Story of UNICEF Past and Present, 1996, Chapter 15. 58 J Becker, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 33, at 35. 59 See Commission on Human Rights, E/CN.4/L.1366, 1978. 60 A Parkes, Children and International Human Rights Law, 2014, p. 50; H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 57. 51

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II. Origin, Drafting and Historical Development of the CRC

exclusively economic, social and cultural rights which were prominently on the agenda of the Communist bloc to which Poland belonged at that time.61 Subsequently, a large majority of Western States, but also the UN Educational, Scientific and Cultural Organization (UNESCO) and the World Health Organization (WHO) rejected the draft on the basis of its limited scope in substance.62 In response, Poland submitted a revised version of the draft in late 1980.63 This subsequent draft became the working document for the informal open-ended working group to consider the question of a Convention on the Rights of the Child which had been established by the UN Commission on Human Rights at its 35th session.64 It laid the foundation for the development of the final text of the CRC which, in the end, was radically different from the original Polish draft, since it recognised, and still recognises, the child’s right to development and participation.65 In addition to the 43 Member States of the (former) UN Commission on Human Rights and the other UN Member States as observers, numerous specialised agencies (such as ILO, UNESCO and WHO) and further bodies such as UNICEF were involved in the drafting of the Convention, as well as many human-rights-oriented NGOs such as “Amnesty International” and “Save the Children Fund Alliance”.66 In particular, the role of UNICEF in children’s rights and policies should not be underestimated. Following the widespread horrors and suffering of World War II, the UN General Assembly created the first intergovernmental agency concerned exclusively with children: The “International Children’s Emergency Fund”.67 It was later renamed into the “UN Children’s Fund” and is far more widely known now by its acronym, UNICEF.68 At the beginning, UNICEF was conspicuously absent from the phase of drafting the CRC, since the organisation was rather reluctant to view its work from a human rights perspective.69 It was not until 1987 that UNICEF, under new leadership, took interest in the project. It then became a leading architect of the rights-based approach set forth in the Convention. The drafting process was slow at the beginning, due to the tensions in the East- 9 West relationship that hampered human rights treaty negotiations,70 but after Mikhail Gorbachev took power in the USSR, the political climate changed significantly, and from 1985 onwards fast progress in the deliberations was made.71 The resolutions were formed by means of a consensus procedure, meaning that all members of the working

W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. I.07. See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 16; M Haslinger, in: M Rauch-Kallat/J Pichler (eds.), Entwicklungen in den Rechten der Kinder im Hinblick auf das UN-Übereinkommen über die Rechte des Kindes, 1994, p. 49, at 56. 63 Commission on Human Rights, Note verbale of the Polish People's Republic, E/CN.4/1349, 1980. 64 See J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 8 et seq. 65 N Peleg, The Child’s Right to Development, 2019, p. 55. 66 For more detail see N Cantwell, Non-governmental organizations and the United Nations Convention on the Rights of the Child, Bulletin of Human Rights 91 (1992), p. 16, at 18 et seq.; J Doek, in: A Ben-Arieh/F Casas/I Frones/J Korbin (eds.), Handbook of Child Well-being, 2014, p. 187-217. 67 A/RES/57 (I), 11 December 1946. 68 Y Beigbeder, Children, in: T Weiss/S Daws (eds.), The Oxford Handbook on the United Nations, 2008, p. 511, at 512. 69 See A von Ungern-Sternberg, United Nations Children’s Fund (UNICEF), in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, mn. 4. 70 A Plevin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 93, at 118. 71 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 9. As to the drafting process and discussions regarding the child’s right to development see N Peleg, The Child’s Right to Development, 2019, p. 56-91. 61

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group needed to agree on the proposed texts.72 Although for most articles consensus was reached relatively easily, there were four controversial issues to be solved. Firstly, the question of whether the child was entitled to the protection of the CRC from birth or from conception. The working group finally decided not to re-open the tense debate on the moment at which life begins and whether the Convention should be applicable to the unborn child.73 This means that the CRC can neither be used to support nor prohibit abortion.74 Secondly, the reference to adopt a religion of choice in draft Article 14 CRC was dropped, since some Islamic States pointed out that under Islam a child – like any other person, including adults – does not have the right to choose another religion.75 Thirdly, the fact that the adoption of a child does not exist under Islamic law led finally to a text in Article 21 CRC that avoids any obligation to introduce adoption.76 The fourth controversial issue was the protection of children in armed conflict, which could only be resolved by accepting that consensus could not be reached on raising the age of 15 years in Article 38 CRC. A reopening of the debate on the recruitment of minors to the armed forces was therefore dropped.77 Delegations quickly realised that this discussion could open the door for demands to reconsider other draft articles, jeopardising or even hampering the final adoption of the CRC.78 After the positive reaction of the Economic and Social Council (ECOSOC),79 the UN General Assembly agreed on the final draft version of the CRC on 20 November 1989 without a formal vote.80 10 On 26 January 1990, the Convention was opened for signature by all States at the headquarters of the United Nations. In accordance with Article 49 para. 1 CRC, the Convention entered into force on 2 September 1990, one month after the 20 th deposit of the instrument of ratification.81 Thus, the entering into force of the Convention took place in a record time, nine months after adoption.82 Interestingly, despite criticism that the CRC was drafted with limited participation of developing countries, out of the first 20 States to ratify the Convention, only one was a developed country from the West, namely Sweden.83 One year later, by 5 September 1991, 33 African States, 16 Asian States, 27 Latin American States and 20 countries in Europe and the global North

72 For more detail see C Kirchhof, Die UN-Konvention über die Rechte des Kindes, insbesondere deren Umsetzung im russischen Recht, 2001, p. 28; A Holzscheiter, Children’s Rights in International Politics, 2010, p. 155 et seq.; N Cantwell, in: S Detrick (ed.), The United Nations Convention on the Rights of the Child. A Guide to the “Travaux Préparatoires”, 1992, p. 19-30. 73 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 10. 74 For a fuller account see P Alston, The Unborn Child and Abortion under the Draft Convention on the Rights of the Child, Human Rights Quarterly 12 (1990), p. 156-178. See also → Preamble mn. 5; → Article 1 mn. 7; → Article 6 mn. 5. 75 See J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 10. 76 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 21. For more detail see J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 337 et seq. See also → Article 21 mn. 2. 77 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 502 et seq. 78 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 10. 79 ECOSOC/RES/1989/79, adopted on 24 May 1989. 80 UN General Assembly Resolution 44/25, A/RES/44/25, 20 November 1989. 81 See → Introduction mn. 4. 82 R Smith, International Human Rights Law, 9th edn. 2020, p. 227. 83 See J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 11. See also CP Cohen/S Hart/S Kosloske, Monitoring the United Nations Convention on the Rights of the Child: The Challenge of Information Management, Human Rights Quarterly 18 (1996), p. 439-471.

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III. Embedding of the CRC into the System of International Human Rights Protection

had ratified the CRC.84 The ratification continued thereafter at an unprecedented rate. Of all UN human rights treaties, the CRC boasts the largest number of ratifications within an especially short period of time, with 196 States Parties today.85 Moreover, two entities that have only an observer status within the United Nations, the Holy See and Palestine, have ratified the CRC. Further two non-members of the UN (without observer status), namely Niue and the Cook Islands, have also ratified the CRC.86 Even Taiwan which cannot ratify the CRC because it is not regarded as an independent State by the (majority of the) international community, has adopted the text of the CRC as a binding domestic instrument.87 The USA is the only country that has not ratified the Convention yet, but only its First and Second Optional Protocols.

III. Embedding of the CRC into the System of International Human Rights Protection 1. Review and Comparison of the Past and Current Situation of Children’s Rights At the beginning of the 20th century, numerous treaties had, to varying extents, the 11 protection of children as a central theme. The following are to be mentioned here: the 1902 Hague Convention relating to the Settlement of Guardianship of Minors,88 the 1904 International Agreement for the Suppression of the “White Slave Traffic”, 89 and the 1910 International Convention for the Suppression of the “White Slave Traffic”, amended by the 1949 New York Protocol.90 In addition, the International Convention for the Suppression of the Traffic in Women and Children was concluded and opened for signature in 1921.91 All these agreements remained rather isolated, were mostly bilateral or plurilateral in character, and focused on specific constellations without considering the comprehensive legal status of children.92 The main and most comprehensive foundation of child protection in international 12 law was the Geneva Declaration of the Rights of the Child which was adopted unanimously by the General Assembly of the (former) League of Nations on 26 September 1924.93 The Geneva Declaration is the first document of any international organisation which addresses children’s rights.94 In contrast to the above-mentioned plurilateral agreements with only minor references to children, the Declaration included five fundamental provisions for the protection as well as the spiritual and material development of the child.95 The ideas of the Declaration went back to the “Save the Children Founda84 J Doek, in: S Detrick (ed.), The United Nations Convention on the Rights of the Child. A Guide to the "Travaux Préparatoires", 1992, p. 633 et seq. 85 See → Introduction mn. 4. 86 See C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 519. 87 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 11. 88 LNTS 1902, LoN-99. 89 LNTS 1904, Vol. 1, p. 83. 90 89 UNTS 101. 91 LNTS 1921, Vol. 9, p. 415. 92 S Schmahl, in: I Richter/F Wapler/L Krappmann (eds.), Kinderrechte, Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 55, at 56. 93 See → Introduction mn. 3. 94 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 6; A Holzscheiter, Children’s Rights in International Politics, 2010, p. 123. 95 G Mower jr., The Convention on the Rights of the Child, 1997, p. 12; A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91 (1992), p. 56, at 61.

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D. Introduction into the Convention on the Rights of the Child

tion”, which had already adopted in May 1923 a very similar five-point declaration.96 However, the Geneva Declaration remained legally non-binding and failed to endow children with subjective rights. 97 On the contrary, the Declaration placed emphasis upon the obligations of adults to care for their children. The role of the child was to a large extent a passive one, as the child was simply considered as a subject of protection.98 Moreover, the Geneva Declaration, in direct reaction to World War I, concentrated upon hunger, sickness, exploitation and the neglect of children and was therefore limited in its substantial scope.99 13 With the dissolution of the League of Nations in 1946, the Geneva Declaration lost its basis. Nevertheless, the continuing importance of the Declaration is not to be underestimated. The Declaration remained the first document in which the humanitarian interests and the protection of children, namely in times of distress, were generally acknowledged as concerns of the international community. Furthermore, the Declaration was the first document which aimed at putting the child in a position to earn a livelihood and to be given the means requisite for his or her normal development, both materially and spiritually.100 Therefore, the Declaration served as a model and inspiration for subsequent legal instruments ensuring children’s rights.101 The important moral claim for the children’s rights movement “mankind owes to the child the best it has to give”, was first articulated in the preamble of the Geneva Declaration of 1924. 102 Shortly after the founding of the United Nations, the claim was included in a slightly expanded form in the (non-binding) 1948 “Declaration of the Rights of the Child” of the International Union for Child Welfare.103 14 The United Nations, founded on 26 June 1945, deepened and further promoted this development. A first legal practical step was taken with the establishment of UNICEF in December 1946 as a partially autonomous special body of the UN General Assembly. 104 In addition, the United Nations developed various activities to anchor human rights normatively. Although the UN Charter does not represent a human rights instrument in a strictly legal sense by itself, the protection of human rights has been an important field of activity for the United Nations since its inception. This pivotal rationale of the organisation is expressed through Article 1 para. 3, Article 55 lit. c and Article 62 para. 2 of the UN Charter. After the adoption of the (legally non-binding) Universal Declaration of Human Rights (UDHR) on 10 December 1948,105 which makes reference to the rights of children in only a limited number of provisions and mostly perceives them in an indirect

96

at 5.

See also J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3,

97 J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 52. 98 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 7 et seq.; S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 13. 99 E Verhellen, Convention on the Rights of the Child, 1994, p. 59; S Schmahl, in: I Richter/F Wapler/L Krappmann (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 55, at 57. 100 W Kerber-Ganse, Eglantyne Jebb. A Pioneer of the Convention on the Rights of the Child, International Journal Child Rights 23 (2015), p. 272-282. 101 J Rehman, International Human Rights Law, 2002, p. 377; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 12. 102 A Holzscheiter, Children’s Rights in International Politics, 2010, p. 125 et seq. 103 See F Wapler, Kinderrechte und Kindeswohl, 2015, p. 80. 104 See UN General Assembly Resolution 57 (I), of 11 December 1946. Further see S Schmahl, in: W Graf Vitzthum/A Proelß (eds.), Völkerrecht, 8th edn. 2019, Section 4, mns. 131, 227. 105 UN General Assembly Resolution 217A (III), of 10 December 1948.

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manner through their parents’ perspective and not as genuine rights-holders,106 the UN General Assembly adopted the Declaration of the Rights of the Child on 20 November 1959.107 This Declaration was modelled upon the 1924 Geneva Declaration of the League of Nations, in particular with regard to the moral standard that “mankind owes the child the best it has to offer”,108 and is also a non-binding instrument.109 Nevertheless, the Declaration of 1959 was significantly more substantive and had a much larger material scope than the 1924 Geneva Declaration.110 In particular, the Declaration of 1959 included the following ten guarantees: – – – – – – – – – –

The principle of non-discrimination (Article 1); the right to develop in a healthy and normal manner (Article 2); the right to a name and a nationality (Article 3); the right to social security, nutrition, housing and medical care (Article 4); the right to special treatment for children with disabilities (Article 5); the right to the care of adults (Article 6); the right to education and the realisation of the objectives of education (Article 7); the right to priority protection and relief (Article 8); the right to protection from neglect, cruelty, and exploitation (Article 9); and the right to protection from practices fostering discrimination (Article 10).

Furthermore, the Declaration’s importance can be seen in the (careful) change of perspective it presented. While the 1924 Geneva Declaration still largely considered the child as the object of legal provisions and as a passive receiver of assistance, the Declaration of 1959, to some extent, contained for the first time ever some approaches to genuine children’s rights.111 However, the main motivation behind the 1959 Declaration remained the protection of children; the true power of children to exercise their own rights was not included in the Declaration.112 Similarly to its predecessor, the Declaration of 1959 addressed primarily parents, guardians and welfare authorities, while States Parties were addressed only in a subordinate manner. In this regard, the Declaration had also horizontal effects.113 Despite this paternalistic point of view and its formal legal irrelevance, the 1959 Declaration, which was adopted unanimously, was of great socio-political and trend-setting importance in that it imposed an increased moral obligation on the responsible actors for the first time, and extensively illuminated the bundle of rights which are relevant to children.114 106 See Article 16 para. 3, Article 25 para. 2, Article 26 para. 1 and para. 2, and Article 26 para. 3 UDHR. For more detail see N Peleg, The Child’s Right to Development, 2019, p. 34-36. 107 UN General Assembly Resolution 1386 (XIV), of 20 November 1959. For the background on the drafting process see PE Veerman, The Rights of the Child and the Changing Image of Childhood, 1992, p. 161-166. 108 See J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 5. Further see → Introduction mn. 13. 109 S von Schorlemer, Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 2; W Heintschel von Heinegg, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, vol. VI/2, 2009, § 175 mn. 46. 110 A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91 (1992), p. 56, at 61. 111 A Holzscheiter, Children’s Rights in International Politics, 2010, p. 126 et seq. 112 E Verhellen, Convention on the Rights of the Child, 1994, p. 61; W Heintschel von Heinegg, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, vol. VI/2, 2009, § 175 mn. 52. 113 E Verhellen, Convention on the Rights of the Child, 1994, p. 64; C Kirchhof, Die UN-Konvention über die Rechte des Kindes, insbesondere deren Umsetzung im russischen Recht, 2001, p. 24. 114 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 12; J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 64 et seq.

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D. Introduction into the Convention on the Rights of the Child

In a similar way to the UDHR, also the two UN Covenants on human rights, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), establish rights for all human beings, including children. Together with the UDHR, both Covenants are often called the “International Bill of Rights”, since they cover together the most important civil, political, economic, social and cultural rights for all human beings.115 States Parties shall respect and ensure that all individuals enjoy the rights enshrined in the two Covenants without distinction of any kind.116 In addition, numerous provisions of the Covenants directly or indirectly mention children.117 In particular, Article 24 para. 1 ICCPR operates in close connection with the CRC. According to that provision, every child shall have, without any discrimination, the right to such measures of protection as are required by his or her status as a minor, on the part of his or her family, society and the State. However, Article 24 para. 1 ICCPR considers the child primarily as a constituent part of the family and not as an individual holder of own rights.118 16 A similar perspective can be found in regional human rights treaties which are general in nature and do not focus specifically on children. For instance, the African Charter on Human and Peoples’ Rights (ACHPR) expressly mentions children in Article 18 para. 3 ACHPR. According to this provision, States Parties shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. Article 19 of the American Convention on Human Rights (ACHR) provides that every minor child has the right to measures of protection required by his or her condition as a minor on the part of his or her family, society and the State. The 1988 Protocol of San Salvador to the ACHR contains a general children’s rights clause in Article 16 on the right to grow up under the protection and responsibility of parents, and the right to free and compulsory education. In the European Convention on Human Rights (ECHR), two articles explicitly reference children. According to Article 5 para. 1 lit. d ECHR, no minor shall be deprived of his or her liberty save in the case that the detention of the minor is for the purpose of educational supervision or for the purpose of bringing him or her before the competent legal authority. Article 6 para. 1, sentence 2 ECHR places limits to the right to a public hearing where the interests of juveniles so require. In addition, the right to education under Article 2 of the First Additional Protocol to the ECHR cannot be understood correctly without taking children’s rights into consideration.119 Moreover, the European Court of Human Rights (ECtHR) repeatedly makes reference to the CRC in its case-law in order to strengthen the best interests of the child.120 The European Social Charter (ESC) contains two provisions relating specifically to children. Article 7 ESC protects children against economic exploitation, and Article 17 ESC deals with children’s right to care, assistance, education and protection from violence. Further provisions of the European Social Charter, such as Articles 8, 16 and 19 ESC, also focus on children. 17 In addition to the human rights instruments that create universal rights for all human beings, there exist numerous international instruments for protecting certain, 15

See T Buergenthal/D Thürer, Menschenrechte. Ideale, Instrumente, Institutionen, 2010, p. 29 et seq. J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 12. 117 See, e.g., Article 6 para. 5, Article 10 para. 2 lit. b, Article 14 para. 1, sentence 3, Article 18 para. 4, Article 23 para. 4, sentence 2, Article 24 ICCPR; Article 10 para. 1, Article 12 para. 2 lit. a, and Article 13 ICESCR. 118 M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mn. 4. 119 See → Article 28 mn. 30. 120 See A-M Böhringer, Schutz des Kindes und Jugendlicher, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 45 mn. 7, with reference to selective jurisprudence of the ECtHR. 115 116

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III. Embedding of the CRC into the System of International Human Rights Protection

particularly vulnerable persons, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Convention on the Rights of Persons with Disabilities (ICRPD). Even though all individuals are fundamentally vulnerable, there are groups of individuals who are more vulnerable than others because of certain preconditions of life or societal behaviour. As a rule, these are individuals who, from the outset, are affected by a systematic or structural disadvantage of a limited group.121 These include women, people of other skin colour, and people with intellectual, mental and physical disabilities. Also contained within these conventions are specific, isolated children’s rights. Children are generally in a special relationship of dependence on their parents and guardians and also to the State.122 Besides, they have genuine weaknesses that make them particularly vulnerable: physical inferiority, lack of life experience, limited capacities of reflections as well as mental and financial dependence on adults.123 For instance, the 1979 Convention on the Elimination of All Forms of Discrimination 18 against Women expressly emphasises the well-being of children in multiple provisions, such as Article 5 lit. b, Article 16 para. 1 lit. d and lit. f CEDAW. Article 10 CEDAW guarantees female and male children a right of equal access to educational opportunities from pre-school onwards. According to Article 11 para. 2 and Article 12 para. 2 CEDAW, unborn children receive indirect protection through the prohibition of discrimination on the grounds of pregnancy, maternity leave and the marital status of their mothers. Also, beyond these forms of protection, the link between the CRC and CEDAW is particularly close. Women’s rights enrich children’s rights with the emancipatory approach. Children’s rights promote and reinforce the realisation of women’s rights as they lay down the foundation for the development and awareness of women’s rights in childhood, especially through education and training of girls.124 In a certain parallel to these special UN human rights instruments, children are also 19 protected by international humanitarian law. Numerous provisions of the 1949 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War stipulate that children as part of the civilian population must not only be given special protection, but also priority treatment within the civilian population.125 Also, the two 1977 Additional Protocols to the Geneva Conventions offer special protection to children in times of international and non-international armed conflicts.126 The International Labour Organisation (ILO), whose main objective is to establish international labour and social norms, has adopted multiple treaties which serve to regulate the acceptable working age, working times and general employment conditions, as well as issues of vocational training, in particular with regard to children and young people.127 For instance, ILO

121 See L Peroni/A Timmer, Vulnerable Groups, International Journal of Constitutional Law, 2013, p. 1956, at 1958; A Chapman/B Carbonetti, Human Rights Protections for Vulnerable and Disadvantaged Groups, Human Rights Quarterly 33 (2011), p. 682, at 683. 122 A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 281. 123 H-G Dederer, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 287, at 296. 124 J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 87, 528 et seq. 125 See, for instance, Article 38 para. 5, Article 89 para. 4, and Article 94 para. 3 of Geneva Convention IV. 126 See, Article 77 and Article 78 of the First Additional Protocol and Article 4 para. 3 of the Second Protocol to the Geneva Conventions. For more detail see → Article 38 mn. 45. 127 T Buck, International Child Law, 2014, p. 34.

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D. Introduction into the Convention on the Rights of the Child

Convention No. 138, which sets a minimum age for work and employment, has had, and continues to have, a significant influence on the interpretation of Article 32 CRC. 128 20 Shortly after the adoption of the CRC in 1989, specific children’s rights were introduced into further human rights instruments. This is the case, for instance, with the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW),129 although this Convention has not been ratified by any major industrial country. Children’s rights are also mentioned in the International Convention on the Rights of Persons with Disabilities (ICRPD) which came into force in 2008. Article 7 para. 2 ICRPD expressly stipulates that in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. 21 In addition to these universal human rights treaties elaborated by the United Nations, since the end of World War II numerous international treaties regarding children’s rights have been concluded on the regional level. The 1990 African Charter on the Rights and Welfare of the Child (ACRWC),130 which entered into force on 29 November 1999 and currently (as of May 2020) has 55 States Parties, clearly takes its lead from the CRC.131 For instance, Article 4 ACRWC, similar to Articles 3 and 12 CRC, requires that children’s best interests are determined by their views and that children must be heard in all judicial or administrative proceedings which concern them. In this way, the African Children’s Rights Charter complements the CRC. However, it also addresses a number of issues that are missing from the CRC and which are particularly relevant to Africa.132 For instance, the situation of children living under apartheid is dealt with in Article 26 ACRWC, and the protection against harmful social and cultural practices is laid down in Article 21 ACRWC.133 The African Children’s Rights Charter sets up a monitoring body, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC). The Committee has the power to examine State reports, as well as to receive individual communications and to launch investigations.134 However, the Committee has been confronted with resource constraints since its inception. Therefore, it took a substantial amount of time for the ACERWC to begin assessing complaints, and the number of individual communications that have been adopted is still significantly low.135 22 Many child-specific conventions have been concluded during the last decades in Europe, predominantly within the framework of the activity of the Council of Europe. To mention here are the 1975 European Convention on the Legal Status of Children Born out of Wedlock;136 the European Convention on the Adoption of Children137 as revised in 2008;138 the 1996 European Convention on the Exercise of Children’s Rights;139 the See → Article 32 mn. 12. See Article 29, Article 30 ICMW. 130 OAU, CAB/LEG/24.9/49, 11 July 1990. 131 See J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 58 et seq.; UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 391. 132 G Bekker, in: M Ssenyonjo (ed.), The African Regional Human Rights System: 30 Years after the African Charter on Human and Peoples’ Rights, 2012, p. 249-263. 133 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 18. For more detail see F Viljoen, International Human Rights Law in Africa, 2nd edn., 2012. 134 O De Schutter, International Human Rights Law, 3rd edn. 2019, p. 32. 135 See A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 83. See also → Individual Communications Procedure mn. 32. 136 ETS No. 085. 137 ETS No. 058. 138 CETS No. 202. 139 ETS No.160. 128 129

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III. Embedding of the CRC into the System of International Human Rights Protection

2003 Convention on Contact concerning Children; 140 the 1980 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children;141 and the 2007 Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.142 Prior to these conventions, the European Convention on Human Rights (ECHR) and the First Additional Protocol to the ECHR already contained provisions relating to children such as Article 5 para. 1 lit. d ECHR and Article 2 of the First Additional Protocol.143 Furthermore, the (revised) European Social Charter also contains various children’s rights.144 The EU Charter of Fundamental Rights,145 which became legally binding with the 2009 Treaty of Lisbon and is, since then, part of EU primary law according to Article 6 para. 1 TEU, comprises a special provision in Article 24 which is specifically dedicated to children’s rights. It is striking that all three paragraphs of Article 24 of the EU Charter of Fundamental Rights are modelled on the provisions of the CRC146 and provide for the child’s independent rights of participation.147 Therefore, it is not surprising that the Court of Justice of the European Union (CJEU) has clarified with regard to Article 24 of the EU Charter of Fundamental Rights that the best interests of the child shall be a primary consideration in all actions concerning children to a similar extent as laid down in Article 3 CRC.148 Finally, it is noteworthy that the American Convention on Human Rights and its 23 1988 Protocol of San Salvador, although they contain only rather restrictive provisions on the rights of the child (Article 19 ACHR; Article 16 of the Protocol), 149 do in fact matter in the overall improvement of children’s rights. In particular, the Inter-American Commission and the Inter-American Court on Human Rights have played, and continue to play, an important role in promoting and enforcing the rights of the child. In their decisions, they recognise the CRC as an important leading document and regularly make reference to the statements, including the General Comments, issued by the CRC Committee.150

CETS No. 192. ETS No.105. 142 CETS No. 201. 143 See → Introduction mn. 16. 144 Article 7, Article 8, Article 16, Article 17 and Article 19 ESC. See also → Introduction mn. 16. 145 OJ EU 2007, No. C 303, p. 1. 146 See T Marauhn, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mn. 12; S Hölscheidt, in: J Meyer (ed.), Charta der Grundrechte der EU, Kommentar, 5 th edn. 2019, Article 24 mns. 2 et seq.; A-M Böhringer, Schutz des Kindes und Jugendlicher, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 45 mn. 12. 147 T Kingreen, in: C Calliess/M Ruffert, (eds.), EUV/AEUV, Kommentar, 5 th edn. 2016, Article 24 mn. 2; C Steindorff-Classen, Europäischer Kinderrechtsschutz nach dem Reformvertrag von Lissabon, Europarecht 2011, p. 19, at 29 et seq. 148 See CJEU, Judgment of 6 June 2013, Case C-648/11, ECLI:EU:C:2013:367, paras 57 seq. – MA, BT, DA v. Secretary of State for the Home Department; Judgment of 6 December 2012, Cases C-356/11 and C-357/11, ECLI:EU:C:2012:776, paras 79 seq. – Maahanmuuttovirasto; Judgment of 22 December 2010, Case C-491/10 PPU, ECLI:EU:C:2010:828, paras 62 seq. – Zarraga v. Pelz; Judgment of 8 May 2018, Case C-82/16, ECLI:EU:C:2018:308, paras 65 et seq. – K.A. et al. 149 See → Introduction mn. 18. 150 For a fuller account, see J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 20; M Feria-Tinta, in: T Liefaard/J Doek (eds.), Litigating the Rights of the Child, 2015, p. 231-248. 140 141

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D. Introduction into the Convention on the Rights of the Child

2. Advantages and Shortcomings of the CRC Compared to Other Universal Human Rights Conventions As demonstrated, multitudinous rights and guarantees of the CRC are similarly or coextensively codified in other universal human rights conventions.151 As a consequence, the content of certain rights is often duplicated. Without claim of completeness, the rights which have been duplicated are as follows:152 The right to life, which is formulated almost identically in both Article 6 CRC and Article 6 ICCPR; the child’s right to freedom of association under Article 15 CRC is based on Article 22 ICCPR; the right to privacy in Article 16 CRC adopts almost identically the formulation of Article 17 ICCPR; the right to social security enshrined in Article 26 CRC is generally recognised in Article 9 ICESCR; and the right to education provided in Article 28 para. 1 CRC is also guaranteed by Article 13 ICESCR. Furthermore, the CRC repeats several human rights which are already established in international customary law. In this respect, the prohibition of slavery is modified as the prohibition of child trafficking in Article 35 CRC, and the prohibition of racial discrimination is stipulated in Article 2 para. 1 CRC. The prohibition of torture provided in Article 37 lit. a CRC has long been accepted as a constituent part of customary international law, too. The inclusion of all of these preexisting treaties and customary rights in the CRC leads to overlaps in human rights law. Since different interpretations can be associated with overlaps in human rights, the duplication of rights raises legal uncertainty.153 On the other hand, the incorporation of pre-existing rights into the Convention is motivated by the aim of creating an encompassing and comprehensive legal instrument for the rights of the child. A separate, specified and at the same time comprehensive treaty obliges the States to take children’s rights more seriously by particularly recognising their inherent dignity and worth, in short: to respect them as true rights-holders.154 Of course, the comprehensive protection of the child sought by the CRC can only be meaningfully achieved if the views of the various UN human rights expert committees on the content and impact of child-related legal guarantees are consistent, plausible and compatible with each other. The CRC Committee’s positions, which sometimes differ substantially from those of other UN expert committees, have little chance in practice of being incorporated into the domestic legal order.155 25 On the other hand, the CRC lacks certain human rights that are contained in other universal conventions. For instance, the right to recognition as a person before the law under Article 16 ICCPR has not been incorporated into the CRC. The object and purpose of Article 16 ICCPR certainly do not suggest that the article does not apply to children. However, the non-inclusion of this standard in the CRC leads to the conclusion that the right to recognition as a person before the law was not seen as a specific children’s right.156 This is all the more true since Article 12 ICRPD and Article 15 CEDAW expressly reaffirm the States’ obligations to ensure that both persons with disabilities and women have the right to be recognised everywhere as persons before 24

See → Introduction mns. 15 et seq. Similarly, J Rehman, International Human Rights Law, 2002, p. 387. 153 See H Stender, Überschneidungen im internationalen Menschenrechtsschutz, 2004. 154 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 12. 155 Similar assessment by S Lux, Die UN-Menschenrechtsausschüsse, Vereinte Nationen 2014, p. 208, at 212. 156 D Balton, The Convention on the Rights of the Child: Prospects for International Enforcement, Human Rights Quarterly 12 (1990), p. 120, at 123. 151 152

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the law.157 Furthermore, the right to work and the right to just and favourable working conditions set out in Articles 6 and 7 ICESCR have not been included in the CRC. Nor does the CRC contain the right to form and join unions guaranteed in Article 22 para. 1 ICCPR. The reason for this non-inclusion may be that these specific economic rights are rarely exercised by children. However, Article 32 CRC protects children from economic exploitation. The CRC Committee also requires States Parties to set a minimum age for work and carefully regulated working conditions for juveniles.158 Although the failure to include the above-mentioned rights in the Convention does not preclude children from exercising those rights based on other human rights instruments,159 it is regrettable that the CRC does not specifically codify these rights for children. This is all the more so, since the CRC was concluded with the aim of creating a comprehensive legal instrument for children. It is also disadvantageous that the CRC establishes certain human rights in a way 26 that their standard of protection clearly lags behind previous international instruments. In view of the provisions formulated in the ICESCR, the CRC represents a normative regression. Article 28 CRC does not oblige the States Parties to enact action plans or time frames for the implementation of free primary school education and thus differs from the standard of Article 14 ICESCR to the detriment of children.160 Whereas Article 9 ICESCR guarantees the right of every person to social security, Article 26 CRC limits the child’s right to benefit from social security insofar as it must be in accordance with States Parties’ domestic law. The reservation in favour of national law gives the States Parties a wide discretion.161 The protection of children in armed conflict under Article 38 CRC is even a significant setback compared to the standards of international humanitarian law.162 This deficit was only partly remedied through the adoption of the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict.163 However, one positive aspect is that the CRC is the first and so far only human rights instrument that focuses on human rights even in times of armed conflict.164 In order to avoid any unwanted regression in the protection of children’s rights, 27 Article 41 CRC stipulates that the Convention shall not affect any provisions of the law of a State Party and of international law in force for that State, which are more conducive to the realisation of the rights of the child. This means that the CRC expressly states that it takes no precedence over other human rights and fundamental freedoms offering a higher standard of protection. Article 41 CRC establishes the principle of the most favourable condition,165 and therewith prevents the risk of dilution of established standards in favour of the child.166 157 For more detail see S Schmahl, in: D Coester-Waltjen et al. (eds.), Perspektiven und Reform des Erwachsenenschutzes, 2013, p. 11, at 17-20. 158 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, paras 84 et seq. Further see A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 242. 159 M Haslinger, in: M Rauch-Kallat/J Pichler (eds.), Entwicklungen in den Rechten der Kinder im Hinblick auf das UN-Übereinkommen über die Rechte des Kindes, 1994, p. 49, at 51. 160 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 720. See also → Article 28 mn. 9. 161 See → Article 26 mn. 6. 162 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, insbesondere deren Umsetzung im russischen Recht, 2001, p. 444. 163 See → Article 38 mn. 2. 164 J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 82. 165 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, insbesondere deren Umsetzung im russischen Recht, 2001, p. 63. 166 See → Article 41 mns. 1 et seq.

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D. Introduction into the Convention on the Rights of the Child

Yet, the CRC is innovative to the extent that it contains new rights which were not provided previously in any other international human rights instruments. A statistical evaluation by a working group of various NGOs demonstrates that the CRC provides around 30 special children’s rights.167 The category of new rights covers, for instance, the child’s right to an identity under Articles 7 and 8 CRC.168 In view of the harmful practice of female genital mutilation, Article 24 para. 3 CRC was introduced to prohibit cultural traditions prejudicial to the health of children.169 New children’s rights also arise from the guarantees contained in Article 25 CRC (periodic review of the placement), Article 31 (leisure and recreational activities) and Article 39 CRC (rehabilitation measures). Finally, the child’s right to express views under Article 12 CRC is of utmost importance, since it clarifies that children are genuine rights-holders. The CRC is the first international instrument which guarantees children a subjective right to participate in all matters affecting them; these rights are no longer to be exclusively exercised by well-wishing adults.170 Thus, the CRC takes a specific child-rights perspective and pursues a subject-oriented approach. The participation rights as introduced by Article 12 CRC and which can be called the raison d’être of the Convention, have, since their adoption, initiated a type of normative triumphal march, witnessed most notably in Article 24 para. 1 of the EU Charter of Fundamental Rights which was clearly modelled on Article 12 CRC.171 29 Furthermore, some provisions contained in the CRC were merely non-binding standards prior to the adoption of the Convention. For instance, Article 40 CRC includes numerous elements of the Rules on the Minimum Standards for the Administration of Juvenile Justice as adopted by the UN General Assembly in 1985.172 The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally which was enacted by the UN General Assembly in 1986 as a mere soft law standard 173 is now reflected in Article 20 CRC as a real children’s right. Prior to the entry into force of the ICRPD, the rights of children with disabilities were included only in non-binding declarations of the UN General Assembly and first became mandatory through Article 23 CRC.174 30 Finally, the CRC was used as an opportunity to expand existing human rights and to specifically design them for the needs of children. For instance, minority protection for ethnic, religious and linguistic minorities is already guaranteed under Article 27 ICCPR. Article 30 CRC extends this standard by including the right of indigenous children to 28

See L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 18. J Wyttenbach, in: A Pollmann/G Lohmann (eds.), Menschenrechte. Ein interdisziplinäres Handbuch, 2012, p. 317, at 317. 169 J Tobin, The Right to Health in International Law, 2011, p. 307 et seq. For more detail see → Article 24 mns. 26 et seq. 170 See L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 19; Y Beigbeder, Children, in: T Weiss/S Daws (eds.), The Oxford Handbook on the United Nations, 2008, p. 511, at 513. 171 See C Steindorff-Classen, Europäischer Kinderrechtsschutz nach dem Reformvertrag von Lissabon, Europarecht 2011, p. 19, at 31; S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, vol. 2, 2 nd edn. 2021, § 20 mn. 104. 172 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Principles”), UN General Assembly Resolution 40/33, A/RES/40/33, 19 November 1985. For more detail see → Article 40 mn. 35. 173 UN General Assembly Resolution 41/85, 3 December 1986: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, Annex. 174 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 16. See also → Article 23 mn. 23. 167

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exercise their culture. Article 37 CRC, which concerns the rights of children within the criminal justice system, is formulated in much greater detail than Article 10 ICCPR. The same can be said of Article 24 CRC concerning health care, which, unlike Article 12 ICCPR, additionally addresses undernourishment and malnutrition.175

IV. Significance of the CRC for the National Legal Systems The essential merit of the CRC is to raise children’s rights awareness in societies and 31 States. It is an undeniable legal-political success of the Convention that some States, such as Brazil, Egypt, Spain, Finland and Poland, have introduced provisions in their constitutions, which emphasise and strengthen children’s rights in the light of the CRC.176 Also in Austria, the Federal Law on the Rights of Children, which came into force in February 2011, endows the fundamental rights of children represented in the CRC with constitutional rank.177 In the Federal Republic of Germany, too, there is a broad debate as to whether a standard specifically tailored to children’s rights should be included in the German Constitution, the Basic Law.178 Such a concept promises to normatively consolidate the legal status of the child, in particular the child’s subject quality as a genuine rights-holder, which cannot be explicitly inferred from the Basic Law against the background of the applicable constitutional law.179 Although the Convention itself does not require a constitutional implementation of its essential rules,180 the CRC Committee stresses that it would welcome the inclusion of the core principles of the CRC in national constitutions.181 It has emphasised this demand several times, especially with regard to the German legal system.182 For the CRC Committee, it is crucial that the child be seized in the national legal system as an independent rights-holder and not merely as an appendage of the parents or a barrier to parental rights. However, it remains still questionable whether the inclusion of a child-rights-clause in the Basic Law would actually bring about a qualitative improvement in the rights of children at the national level.183 Not only the jurisprudence of the Federal Constitutional Court, but

J Rehman, International Human Rights Law, 2002, p. 394. See also → Article 24 mn. 18. See S von Schorlemer, Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 39. See also T Marauhn, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mn. 4; S Hölscheidt, in: J Meyer (ed.), Charta der Grundrechte der EU, Kommentar, 5 th edn. 2019, Article 24 mns. 6 seq. 177 See M Nowak/H Sax/B Weichselbaum, Kinderhandel in Österreich – aktuelle öffentlich-rechtliche Fragestellung zu Kooperation und Opferschutz, ACTnow 2014, p. 3, at 4 et seq. See also CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, para. 10. 178 See S Schmahl, Verpflichtet das Völkerrecht zur Einführung von Kinderrechten ins Grundgesetz? Ein Statement in 18 Thesen, Recht der Jugend und des Bildungswesens 2020, p. 5-13. 179 See H Cremer, Aufnahme von Kinderrechten ins Grundgesetz als Maßnahme zur Umsetzung der UN-Kinderrechtskonvention?, 2011, p. 1 et seq.; G Benassi, Kinderrechte ins Grundgesetz – alternativlos, Zeitschrift für Rechtspolitik 2015, p. 24. 180 See E Rossa, Kinderrechte: Das Übereinkommen über die Rechte des Kindes im internationalen und nationalen Kontext, 2013, p. 102; H-G Dederer, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 287, at 306; S Schmahl, in: I Richter/F Wapler/L Krappmann (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 55, at 63-64. 181 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 21. 182 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.43, 1995, para. 43; CRC/C/15/Add.226, 2004, paras 9 et seq.; CRC/C/DEU/CO/3-4, 2014, paras 9 et seq. 183 See, e.g., F Wapler, Kinderrechte und Kindeswohl, 2015, p. 498 et seq.; S Schmahl, Verpflichtet das Völkerrecht zur Einführung von Kinderrechten ins Grundgesetz? Ein Statement in 18 Thesen, Recht der Jugend und des Bildungswesens 2020, p. 5, at 12-13. 175

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also several federal statutes are strongly oriented on the subjective rights of the child. 184 In addition, some constitutions of the Federal States (Länder) already explicitly codify children’s rights.185 32 Despite the legal binding nature of a treaty under international law and the obligation to implement the treaty into domestic law, the provisions of a treaty are not necessarily directly applicable.186 For the immediate applicability it is crucial that the treaty provision is to be understood as self-executing, i.e. it can generate rights and obligations without further intermediary steps (for instance, the enactment of a statute law by parliaments). This is the case if, and to the extent that, a treaty standard is formulated with sufficient accuracy as regards its wording, object and purpose.187 There is no doubt about the direct applicability of numerous provisions of the CRC, which affect the child’s best interests or rights of participation. Various provisions of the Convention, especially as far as civil rights of the child are concerned, even establish subjective rights of the child and are therefore directly effective.188 This is the case, for instance, with Article 2 para. 1, Article 3 para. 1, Article 6 para. 1, Article 7, Article 12 and Article 40 CRC, since they are – with regard to their wording and object and purpose – sufficiently precise and clearly formulated.189 The Venice Commission of the Council of Europe also emphasises the direct applicability of Article 3 para. 1 CRC.190 Rights belonging to the second dimension of human rights, i.e. economic, social and cultural rights of the child, are generally not directly applicable, but oblige the Contracting States of the Convention to take appropriate legislative or administrative measures.191 Very few provisions of the CRC concern the purely intergovernmental level or are merely programmatic in nature such as Article 23 para. 4, Article 24 para. 4 and Article 28 para. 3 CRC. 33 The fact that Article 4, sentence 1 CRC establishes a general duty of implementation does not preclude the importance of the Convention for the national legal order.192 Even non-self-executing provisions that only oblige the States Parties to enact laws or other measures to implement children’s rights justify the objective obligation for the States to observe their content and, if necessary, to concretise their law statutes by further standardisation or by enacting new laws.193 In this context, the CRC Committee rightly For more detail see → Article 4 mns. 3 et seq. See, e.g., Article 125 para. 1 of the Bavarian Constitution. 186 See E Klein, in: P Koeppel (ed.), Kindschaftsrecht und Völkerrecht, 1996, p. 31, 39; RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 7. 187 H Sauer, Staatsrecht III, 5th edn. 2018, mn. 16; S Schmahl, Die völkerrechtsdogmatische Einordnung internationaler Menschenrechtsverträge, Juristische Schulung 2018, p. 737, at 739. 188 A particular expansive interpretation is made by H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2011, p. 17. More restrively: G Benassi, Deutsche Rechtsprechung vs. UN-Kinderrechtskonvention?, Deutsches Verwaltungsblatt 2016, p. 617at 619 et seq. 189 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, insbesondere deren Umsetzung im russischen Recht, 2001, p. 43 et seq.; A Alen/W Pas, in: E Verhellen (ed.), Monitoring Children’s Rights, 1996, p. 165, at 180 et seq.; J Wolf, Ratifizierung unter Vorbehalt: Einstieg oder Ausstieg der Bundesrepublik Deutschland aus der UN-Konvention über die Rechte des Kindes?, Zeitschrift für Rechtspolitik 1991, p. 374, at 376. Different opinion by B Verschraegen, Die Kinderrechtskonvention, 1996, p. 59. 190 See European Commission for Democracy through Law (Venice Commission), 24 March 2014, Opinion No. 713/2013, CDL-AD (2014) 005, paras 37-39. 191 See H-G Dederer, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 287, at 310-311. 192 Rightly so, G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 309, C Tomuschat, in: F Ruland/B von Maydell/H-J Papier (eds.), Verfassung, Theorie und Praxis des Sozialstaats, 1998, p. 1143, at 1153 et seq. See also → Article 4 mns. 2 et seq. 193 E Klein, in: P Koeppel (ed.), Kindschaftsrecht und Völkerrecht, 1996, p. 31, at 47 et seq.; S Schmahl, Die völkerrechtsdogmatische Einordnung internationaler Menschenrechtsverträge, Juristische Schulung 2018, p. 737, at 739. 184

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draws attention to the interdependence and indivisibility of all guarantees laid down in the Convention.194 The enjoyment of economic, social and cultural rights is inextricably linked to civil and political rights, especially since the survival and development of the child essentially depend on economic and social rights.195 Therefore, it is consistent and plausible that the CRC Committee considers all rights enshrined in the Convention to be justiciable and subject to juridical control.196 Article 4, sentence 2 CRC reflects the realistic view that the lack of financial and other resources can hinder full enforcement of economic, social and cultural rights.197 However, in this respect, the Convention introduces a concept of “progressive implementation”. In the opinion of the CRC Committee, the States Parties have to demonstrate that they use their available resources in the best possible way to promote and strengthen the best interests of the child. 198 In this way, the discretion of the Contracting States is restricted, even with regard to the economic, social and cultural rights enshrined in the Convention. Finally, the CRC Committee considers that the obligation of the Contracting States lies not only in the implementation of the Convention rights into the national legal order, but also in helping them to achieve universal enforcement through international cooperation.199 This international cooperation must not only be bilateral, but first and foremost multilateral in character.200

V. Basic Design and Structure of the CRC The primary objective of the CRC, as evidenced in its Preamble, is to provide 34 children with the necessary protection and assistance to enable them to fully assume their responsibilities within the community. Children should be given the opportunity to grow up in an atmosphere of happiness, love and understanding in order to fully develop their personality and to become prepared to live an individual life in society. The Convention pays particular attention to children growing up in difficult living conditions or with other barriers or social disadvantages for their personal development.201 Overall, the CRC and its Optional Protocols aim to provide a legally integrated, holistic system to ensure the best possible living conditions for all children, in particular in developing countries. In view of the vulnerability and defencelessness of children, States Parties are obligated to actively promote the welfare and best interests of children.202 Yet, claiming 194 See CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 6; General Comment No. 16, CRC/C/GC/16, 2013, paras 26 et seq.; General Comment No. 21, CRC/C/GC/21, 2017, para. 13. 195 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 6, 25; General Comment No. 13, CRC/C/GC/13, 2011, para. 65; General Comment No. 19, CRC/C/GC/19, 2016, para. 30. 196 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 6, 25. See also H Cremer, Menschenrechtsverträge als Quelle von individuellen Rechten, Anwaltsblatt 2011, p. 159, at 161; M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 16 et seq. 197 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 7; General Comment No. 13, CRC/C/GC/13, 2011, para. 65. 198 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 65, 73; General Comment No. 19, CRC/C/GC/19, 2016, paras 29 et seq. See also A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 68 et seq. 199 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 7, 60 seq. 200 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 63 et seq. 201 F-Z Ksentini, The Convention on the Rights of the Child: Norms for protection and an instrument of co-operation for the survival, development and well-being of the child, Bulletin of Human Rights 91 (1992), p. 43, at 45. See also → Preamble mn. 5. 202 M Haslinger, in: M Rauch-Kallat/J Pichler (eds.), Entwicklungen in den Rechten der Kinder im Hinblick auf das UN-Übereinkommen über die Rechte des Kindes, 1994, p. 49, at 59 et seq.

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D. Introduction into the Convention on the Rights of the Child

that only welfare approaches are in the best interests of the child does not make them rights-based. To apply the CRC, it is essential to use a particular child-rights approach. The States Parties shall be accountable to ensure the participatory rights of the child and to respect children as genuine rights-holders.203 There is now consensus at international level that the best interests of children can only be ensured if their views on matters affecting them are duly taken into account in the decision-making process.204 35 In order to meet these objectives, the Convention contains numerous substantive guarantees, which are complemented by a monitoring mechanism. The CRC comprises 54 articles and can be divided into three sections. The first section (Article 1 to Article 40 CRC) establishes numerous civil, economic, social and cultural rights of children. Civil rights and freedoms refer to basic rights or fundamental liberties that have to be guaranteed to every human being. Traditionally, they are known as first-generation (or first-dimension) human rights and largely concerned with ensuring the individual’s freedom from unlawful or arbitrary State interference. In contrast, economic, social and cultural rights belong to the second-generation (or second-dimension) human rights. They require the States Parties to take positive measures in order to promote the well-being of the people. The divide between the two generations (or dimensions) of human rights became established during the Cold War, and was only ended after the fall of the Iron Curtain. On 25 June 1993, representatives of 171 States adopted by consensus the Vienna Declaration and Programme of Action of the World Conference on Human Rights, which presented to the international community a common plan for the strengthening of human rights work around the world.205 One of the main outcomes of the Vienna World Conference was the recognition of the indivisibility and interdependence between all dimensions of human rights. Thus, the emergence of the CRC which enshrines in its first section both civil rights and freedoms and socioeconomic rights for children, is often hailed for reinforcing the universality, interdependence and indivisibility of all human rights.206 36 The second section of the Convention (Article 41 to Article 45 CRC) contains rules for the implementation and the monitoring of the rights set forth in the Convention. These rules are extended by the Third Optional Protocol to the CRC on a Communications Procedure which entered into force in 2014.207 Furthermore, the Convention does not intend to take precedence over other national rights or international guarantees which are more conducive to the realisation of the rights of the child.208 The third and last section of the Convention, i.e. Articles 46 to 54 CRC, covers the typical final clauses found in international treaties. Moreover, the Convention is substantively supplemented by the Optional Protocol on the Involvement of Children in Armed Conflict, and the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornogra203 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 1; General Comment No. 13, CRC/C/GC/13, 2011, para. 59; General Comment No. 21, CRC/C/GC/21, 2017, para. 5. See also J Wyttenbach, in: A Pollmann/G Lohmann (eds.), Menschenrechte. Ein interdisziplinäres Handbuch, 2012, p. 317, at 317. 204 See, e.g., CRC Committee, Concluding Observations: Switzerland, CRC/C/CHE/CO/2-4, 2015, para. 26. For more detail see → Article 3 mn. 12. 205 Vienna Declaration and Programme of Action of 25 June 1993, A/CONF.157/23, Part II, 1993, paras 33, 79. The Vienna Declaration was endorsed by the UN General Assembly in Resolution 48/121, A/RES/48/121, 20 December 1993. 206 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 390. See also S Goonesekere, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 71, at 74 et seq. 207 See → Introduction mn. 7. 208 B Verschraegen, Die Kinderrechtskonvention, 1996, p. 3. For more detail see → Article 41 mns. 1 et seq.

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V. Basic Design and Structure of the CRC

phy.209 Overall, the CRC and its Protocols represent complex and complicated treaties for the States Parties, as these multidimensional instruments address all areas of public, social and private life and cover numerous laws, budgets, behavioural habits as well as cultural and religious traditions.210 In addition, some of the Convention provisions do not have a simple structure. They do not always differentiate clearly between civil and political rights on the one hand and economic, social and cultural rights on the other. The order in which the substantive provisions appear is to a large degree inspired by the revised Polish proposal for a Convention on the Rights of the Child that became the working document in the drafting process.211 The overarching themes of the Convention and its Protocols are the welfare and the 37 best interests of the child; this is emphasised in the Preamble and in several individual provisions, most prominently in Article 3 para. 1 CRC. In determining the child’s best interests, the Convention gives special importance to the views of the child and its participation rights which are specifically concretised in Article 12 CRC. Simultaneously, the Convention accommodates the rights and obligations of parents or other legal guardians. The general parent’s right to education and upbringing of the child is mainly expressed in Article 3 para. 2, Article 5, Article 14 para. 2 and Article 18 para. 1 CRC. It is an important element that the CRC recognises the responsibilities, rights and duties of parents, since it thereby acknowledges that the child is not an isolated individual but forms part of the “port of a family” and that States Parties have the obligation to respect parental rights and to assist them in performing this responsibility, if necessary by providing material assistance.212 In other words, the Convention underscores the key role that parents play in the realisation of the rights of the child. Nevertheless, the exercise of parental rights and responsibilities is subject to limitations. The exercise of parental rights may not lead to physical or mental abuse of the child; and the child’s views shall always be given due consideration in all matters affecting him or her.213 The Convention thus takes up the area of tension between the interests of the child, the rights of his or her parents and other (including public) interests, which is frequently encountered in the phase of childhood. For example, the child's opinion should be consulted in all matters affecting him or her, without denying him or her social integration into the parental home and family and the necessary protection from dangers. Therefore, children must be involved in the decision-making process in matters affecting them ab initio, even if the decision is ultimately made by the parents or legal guardians.214 Thereby, the age, the level of maturity and the growing abilities of the child are of central importance.215 The will and views of the adolescent shall have a greater weight in determining the child’s best interests than the opinion and wishes of an infant. However, due to the growing capacity for self-determination, children must always have an age-appropriate minimum amount of options for the future, so that they

See → Introduction mns. 5 et seq. L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 23. Similar view by A Holzscheiter, Children’s Rights in International Politics, 2010, p. 92. 211 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 13. 212 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 48; J Doek, in: U Kilkelly/ T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 14. 213 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 14. 214 For a distinction between the consultative and decisive effect of the child's will, see F Wapler, Kinderrechte und Kindeswohl, 2015, p. 435 seq. Similarly, OA Khazova, in: U Kilkelly/T Liefaard (eds.) International Human Rights of Children, 2019, p. 161, at 167. 215 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 44. 209 210

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D. Introduction into the Convention on the Rights of the Child

can emancipate and detach themselves from their conditions of origin.216 Against this background, it is rather incomprehensible that the opponents of the ratification of the CRC by the USA continue to present the Convention text generally as “anti-parent” and as a treaty that will undermine the role of parents in raising their children.217 38 The CRC comprises basic and elementary human rights of children such as the right to life, survival and development (Article 6 CRC), the prohibition of discrimination (Article 2 CRC), freedom of expression and freedom of information (Article 13, Article 17 CRC), and freedom of religion (Article 14 CRC), all of which are also codified in other human rights conventions.218 Furthermore, the Convention contains particular child-specific provisions, such as the right to know and be cared for by his or her parents (Article 7, Article 8 CRC) or the right to maintain personal relations and direct contact with both parents (Articles 9 to 11 CRC). Additionally, several provisions have the aim of protecting the child against specific dangers such as physical and mental abuse, sexual abuse and economic exploitation (Article 19, Article 32, Article 34-36 CRC); these guarantees are further specified in the Second Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography.219 Other Convention rights address the support and promotion of the child, such as the right to education (Articles 28 and 29 CRC) and the right to leisure and recreational activities (Article 31 CRC). The needs of especially vulnerable groups of children are also taken into account by the Convention through the recognition of the rights of children belonging to indigenous or ethnic minorities (Article 30 CRC), the rights of refugee children (Article 22 CRC) and the rights of children with disabilities (Article 23 CRC). Article 38 CRC contains a provision that aims at protecting children in armed conflict and thus intertwines human rights law with international humanitarian law. Article 38 CRC is partially modified by the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict.220 Finally, of utmost importance is Article 12 CRC, according to which the views of children shall be duly taken into account in all matters affecting them.221 In sum, the CRC and its Optional Protocols aim to establish rules for children which might be described with “four Ps”: (1) participation of children in decisions affecting their own destiny; (2) protection of children against discrimination and all forms of neglect and exploitation; (3) prevention of harm to children; and (4) provision of assistance for their basic needs.222

216 F Wapler, Religiöse Kindererziehung: Grenzen des Rechts, Recht der Jugend und des Bildungswesens 2015, p. 420, at 424 and 447. See also M Freeman, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 49, at 59. 217 See, for instance, M Guggenheim, What’s wrong with children’s rights?, 2005; M Freeman, Why it remains important to take children’s rights seriously, International Journal of Children’s Rights 15 (2007), p. 5-23; J Todres, in: J Todres/M Wojick/C Revaz (eds.), The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification, 2006, p. 19-32. 218 See → Introduction mns. 24 et seq. 219 For a full account on the content of OPCS see J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1726 et seq. 220 See → Article 38 mn. 6. 221 S von Schorlemer, Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 12 et seq.; A Holzscheiter, Children’s Rights in International Politics, 2010, p. 184 et seq. 222 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 15; J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, Vol. 1-3, 2015, p. 54. More restrictively – “three Ps”: W Heintschel von Heinegg, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, vol.

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VI. Core Standards and Main Objective of the CRC

VI. Core Standards and Main Objective of the CRC The CRC and its two substantive Optional Protocols pursue a holistic, multidimen- 39 sional and cross-sectoral child-rights approach,223 which is also expressed in the different functional dimensions of the Convention rights. Many prohibitions and classical liberal rights against arbitrary or unlawful State interference are combined with obligations and duties on the States Parties to protect, to ensure and to fulfil human rights. By these means, for instance, the prohibition to exploit children economically or sexually are no longer be considered as legally isolated standards. Economic and sexual exploitation of children is no longer only tackled singly, but the horizon has broadened and the issues are dealt with comprehensively. This includes dealing with the socio-psychological effects on the child concerned as well as the obligation of the States Parties to eliminate the root causes for the exploitation of children. Recognised as root causes conducive to all types of child exploitation are: poverty, family problems, lack of education, harmful traditional practices and armed conflicts.224 These causes are therefore taken into account by various provisions of the Convention. Generally, the rights of the child should never be analysed in isolation, but rather in light of various rights and guarantees and, in particular, in light of the CRC’s four guiding principles in Articles 2, 3, 6, and 12 CRC.225 However, sensitive accounts should also be given to the fact that there are differences in the approach between economic, social and cultural rights under the CRC and the ICESCR, given the difference in position between children and adults in terms of access to and enjoyment of economic rights.226 Children are more vulnerable to violations of their economic, social and cultural rights than adults. This is mainly due to their relative bio-developmental disadvantage. It is also attributable to their limited ability to meet their economic needs themselves through work and working arrangements.227 Because of the duplication of existing standards provided in other international 40 conventions, the CRC is sometimes considered as not being a significant progress in human rights law.228 However, this understanding overlooks the fact that the CRC contains specific children’s rights and that the dilution of human rights is prevented by the principle of the most favourable condition as enshrined in Article 41 CRC. The CRC also covers a number of new (participatory) children’s rights that are not included in other conventions.229 Furthermore, the legal clarity of what children’s rights mean VI/2, 2009, § 175 mn. 51; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. I.10-I.12, with further references. 223 See F-Z Ksentini, The Convention on the Rights of the Child: Norms for protection and an instrument of co-operation for the survival, development and well-being of the child, Bulletin of Human Rights 91 (1992), p. 43, at 48 et seq. More recently, see also CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 13. 224 Y Beigbeder, Children, in: T Weiss/S Daws (eds.), The Oxford Handbook on the United Nations, 2008, p. 511, at 521 et seq. See also Stockholm Declaration and Agenda for Action, 1 st World Congress on Commercial Sexual Exploitation of Children, 1996, para. 6. 225 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 151. 226 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 242. 227 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 242-243. 228 See, e.g., R Wolfrum, in: J Jekewitz et al. (eds.), Des Menschen Recht zwischen Freiheit und Verantwortung, 1989, p. 67, at 86; D Balton, The Convention on the Rights of the Child: Prospects for International Enforcement, Human Rights Quarterly 12 (1990), p. 120, at 124. 229 See → Introduction mn. 28.

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D. Introduction into the Convention on the Rights of the Child

has been improved by a complete and uniform catalogue of children’s rights. Not only governments, but all those involved in children’s rights, including parents and children, benefit from a comprehensive overview of existing children’s rights.230 Finally, it is a positive development that children’s rights through the path of the CRC have become mainstreamed in various human rights mechanisms on both the universal and the national levels.231 41 Moreover, one of the most important decisions of the CRC Committee was to qualify four provisions of the Convention as general principles, namely Article 2 CRC on non-discrimination, Article 3 CRC on the best interests of the child, Article 6 CRC on the right to life, survival and development, and Article 12 CRC on the child’s right to express views. This decision was sometimes criticised for using the term “principles” rather than “rights” or “legal obligations”.232 However, over the course of time, it became clear that the CRC Committee considers that the general principles should be taken into account as guiding principles when implementing the other provisions of the Convention.233 In this way, the CRC Committee makes a significant contribution to the comprehensive understanding and multi-tiered approach of children’s rights as laid down in the Convention. 42 The vague formulation of some of the Convention’s provisions is disadvantageous due to the resulting possibility for diverse results of interpretation. In particular, Article 12 CRC is the object of criticism on account of its elusive terminology.234 Another example of such substantive ambiguities in the formulation of Convention rights is the frequent use of the indefinite term “appropriate”.235 On the other hand, by using the term “appropriate” the Convention concedes a leeway and room for interpretation to States Parties in cultural or diversity terms. By respecting the States Parties’ margin of appreciation, the CRC is probably more sensitive to different approaches and perspectives than most of the principal human rights treaties adopted earlier.236 The CRC Committee cannot prescribe in detail the measures which each State Party will find appropriate to ensure effective implementation of the CRC.237 The CRC Committee rather observes that States Parties come up with a contextual interpretation of the Convention rights in a culturally responsive manner.238 43 Nevertheless, issues that limit the legal authority of the CRC are the high number of reservations239 and the comparatively weak enforcement mechanisms. States Parties are merely obliged to submit, at regular intervals, reports on the internal realisation of their obligations to the CRC Committee.240 Acceptance and application of the individual G Van Bueren, The International Law on the Rights of the Child, 1995, p. 14. C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2nd edn. 2020, p. 519, at 545. 232 Critical assessment with regard to the definition of general principles by, e.g., W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. I.13-I.19. For more references see J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 14. 233 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 139. 234 See J Rehman, International Human Rights Law, 2002, p. 386; G Mower jr., The Convention on the Rights of the Child, 1997, p. 51 et seq. 235 See, for instance, Article 4, Article 17, sentence 2 lit. e, Article 19, and Article 22 CRC. 236 Rightly so, J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 16; P Alston, in: id. (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights, 1994, p. 1 et seq.; K Arts, Twenty-five Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges, Netherlands International Law Review 61 (2014), p. 267-303. 237 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 1. 238 CRC Committee, General Comment No. 11 CRC/C/GC/11, 2009, para. 26. 239 See → Articles 46-54 mn. 11. 240 See → Articles 44/45 mn. 3. 230 231

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VI. Core Standards and Main Objective of the CRC

communications procedure, which was introduced by the Third Optional Protocol to the CRC on a Communications Procedure of 2011 (in force since 2014)241 is even at the full discretion of the States. There is no international legal obligation to ratify the Protocol. In addition, the CRC Committee decides in the reporting and the individual communications procedures only by legally non-binding statements and recommendations (see Article 45 lit. d CRC; Art. 10 para. 5 OPIC). An international responsibility of the States Parties for deficits in the implementation of these CRC Committee’s opinions is therefore out of the question, provided that these go beyond the agreed text of the Convention.242 However, this does not change the importance and institutional authority of the views expressed by the CRC Committee because of the independent expertise of the CRC Committee members.243 Furthermore, it must also be taken into account that the States Parties have equipped the CRC Committee with the competence to identify violations of children's rights. Therefore, they may not simply ignore its statements. 244 Rather, it is a duty of the States Parties, based on the principle of good faith, to seriously consider the legal opinions formulated by the CRC Committee, to follow them as far as possible and to deviate from them only on the basis of convincing counter-arguments.245 Article 11 para. 1 OPIC expressly stipulates that the State Party shall give due consideration to the views of the CRC Committee, together with its recommendations. However, this moral legitimacy and political authority can only be preserved if the CRC Committee's comments and recommendations are legally precise and consistent, which is not always the case.246 For example, it is not plausible why the CRC Committee in its Concluding Observations on the legal situation in Germany (2014) only criticises the negative effects of coal emissions and does not consider other harmful emissions.247 It is reasonable to assume that the CRC Committee occasionally relies too much on the “shadow reports” of individual non-governmental organisations and that it does not carry out the necessary contextualisation in a precise manner. Conversely, the CRC has had and continues to have, a positive influence in other 44 areas. A fundamental achievement of the Convention is its success in raising awareness on children’s rights. In reaction to the obligations enshrined in the Convention, numerous countries have added provisions to their domestic constitutions and legal statutes that emphasise and strengthen children’s rights.248 Furthermore, the CRC provides fresh impetus for the continuous development of children’s rights at the regional level.249

See → Introduction mn. 7. H-G Dederer, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 287, at 306. 243 See S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung – Eine Analyse jüngster gesetzgeberischer und judikativer Entwicklungen, Recht der Jugend und des Bildungswesens 2014, p. 125, at 128 et seq. See also → Articles 44/45 mn. 47; → Individual Communications Procedure mn. 29. 244 See M Payandeh, Rechtsauffassungen von Menschenrechtsausschüssen der Vereinten Nationen in der deutschen Rechtsordnung, Neue Zeitschrift für Verwaltungsrecht 2020, p. 125, at 127-128; W Kälin/ J Künzli, Universeller Menschenrechtsschutz, 4th edn. 2019, p. 251. 245 C Tomuschat, Human Rights: Between Idealism and Realism, 3 rd edn. 2014, p. 266; R van Alebeek/ A Nollkaemper, in: H Keller/G Ulfstein (eds.), UN Human Rights Treaty Bodies, 2011, p. 385; E Klein, in: D. Merten/H.-J. Papier (eds.), Handbuch der Grundrechte, VI/2, 2009, § 177 mn. 27. 246 Critical view also by W Kälin, in: H Keller/G Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy, 2012, p. 16, at 72. 247 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 22. 248 See → Introduction mn. 31. 249 E Funch, in: S von Schorlemer (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 253-274. 241

242

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D. Introduction into the Convention on the Rights of the Child

Article 24 of the EU Charter of Fundamental Rights provides evidence in this regard. 250 The CRC has also exerted influence on the development of further ILO Conventions prohibiting child labour.251 The fact that the recruitment of child soldiers now qualifies as a war crime252 is to be recorded as an outstanding success of the CRC. 45 The CRC can be praised in particular for the change in perspective it promotes in favour of the legal status of children. The child is no longer perceived only as a legal object in need of protection, but also as an independent holder of unalienable rights, equal to those of an adult, although sometimes configured in a child-specific manner.253 Similar to CEDAW and the ICRPD, the CRC serves as an international anti-discrimination instrument for the emancipation of a particularly vulnerable group.254 However, it is to bear in mind that a person regularly grows out of childhood over time and does not have to free him- or herself fundamentally from the defensive role, as women or persons with disabilities usually have to do.255 Hence, the CRC does not have the same strength in emancipation as CEDAW and the ICRPD. The emancipatory orientation of children's rights in relation to the other two special human rights treaties is weaker. 256 Nevertheless, the subject-oriented character of the Convention is evident, particularly in the child’s right to express views under Article 12 CRC. A child is granted rights because he or she is a child and is not denied rights because he or she has not yet attained adulthood.257 In addition, the Convention rights are guaranteed for the child him- or herself; the child is no longer perceived simply as part of the family or a particular social group.258 Accordingly, a prevailing majority of the provisions of the CRC have the character of an individual human rights guarantee.259 The implementation duty contained in Article 4 CRC is also enshrined in other human rights treaties and serves only to stipulate that States Parties must adjust their national law to ensure compliance with the Convention.260 46 Finally, the CRC governs not only the classic vertical relationship between the State and the individual, but is also responsible for new developments, which no longer permit a sharp distinction between society and the State. In addition to the State, which is undoubtedly the main addressee of the obligations enshrined in the Convention, 250 See T Kingreen, in: C Calliess/M Ruffert, (eds.), EUV/AEUV, Kommentar, 5 th edn. 2016, Article 24 mn. 1; S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, vol. 2, 2nd edn. 2021, § 20 mns. 99 et seq. 251 S von Schorlemer, Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 3. 252 See, e.g., Special Court for Sierra Leone, Appeals Chamber, Prosecutor v Tamba Brima, Judgment of 22 February 2008, SCSL-2004-16-A; ICC Trial Chamber, Prosecutor v. Thomas Lubanga Dyilo, Judgment of 14 March 2012, ICC-01/04-01/06, para. 600 et seq. 253 See G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 298; L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 19; T Marauhn, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mn. 5. For a more restrictive approach see L LeBlanc, The Convention on the Rights of the Child. United Nations Law-making on Human Rights, 1995, p. 276; W Heintschel von Heinegg, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, vol. VI/2, 2009, § 175 mn. 51. 254 S Schmahl, in: D Coester-Waltjen et al. (eds.), Zwangsbehandlung bei Selbstgefährdung, 2016, p. 97; A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 281 et seq. 255 See F Wapler, Kinderrechte und Kindeswohl, 2015, p. 401. 256 S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte, Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 55, at 60. 257 B Verschraegen, Die Kinderrechtskonvention, 1996, p. 5. 258 G Mower jr., The Convention on the Rights of the Child, 1997, p. 4. 259 H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2011, p. 8 et seq. 260 See C Tomuschat, in: F Ruland/B von Maydell/H-J Papier (eds.), Verfassung, Theorie und Praxis des Sozialstaats, 1998, p. 1143, at 1148; R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. UNICEF, 2007, p. 51.

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the CRC also deals with the rights and duties of parents in relation to their children (see Article 5, Article 18 CRC). Other third parties – e.g., transnational companies and multinational enterprises – are also obligated on the basis of a (mostly indirect) third-party effect of the Convention guarantees.261 In addition, the CRC represents the first binding international human rights instrument to combine economic, social and cultural rights with civil and political rights.262 This combination allowed the division of human rights instruments, which had occurred during the Cold War, to be overcome on 20 November 1989, just a few days after the fall of the Berlin Wall on 9 November 1989.263 The Convention on the Rights of the Child is the first human rights treaty to overcome the traditional idea of human rights generations or dimensions264 that underlie the two UN human rights conventions, ICCPR and ICESCR. Also, due to this aspect, the CRC is to be considered as a crucial milestone in the history of human rights.

CRC Committee, General Comment No 16, CRC/C/GC/16, 2013, para. 28. S von Schorlemer, Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 10; R Smith, International Human Rights Law, 9th edn. 2020, p. 227. 263 See L LeBlanc, The Convention on the Rights of the Child, Leiden Journal of International Law 4 (1991), p. 281, at 287 et seq. 264 As to the concept of different human rights dimensions or generations see C Tomuschat, Human Rights: Between Idealism and Realism, 3rd edn. 2014, p. 136 et seq. 261

262

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E. ARTICLE-BY-ARTICLE COMMENTARY TO THE CONVENTION ON THE RIGHTS OF THE CHILD, INCLUDING ITS OPTIONAL PROTOCOLS Preamble The States Parties to the present Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom, Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance, Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth", Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed 31

Preamble Conflict, Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration, Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international cooperation for improving the living conditions of children in every country, in particular in the developing countries, Have agreed as follows:

Importance of the Preamble Like all preambles to international treaties, the Preamble to the Convention on the Rights of the Child is not legally binding and does not have a direct force. Nevertheless, it is an important additional interpretive tool for working out the meaning of individual guarantees of the CRC. This is done on the basis of Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT), which reflects and reproduces customary international law. According to Article 31 para. 2 VCLT, the context for the purpose of the interpretation of an international treaty comprises not only the operative articles of the treaty text but also its preamble and annexes. 2 This broad method of interpretation applies particularly to the contextualisation of the individual articles of the Convention. The Preamble suggests a close connection between the CRC and the International Bill of Human Rights, which encompasses the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).1 Although not mentioned explicitly, the Preamble also links the CRC with other international human rights instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the International Convention on the Rights of Persons with Disabilities (ICRPD), just to name a few. In doing so, the Preamble leverages such international human rights instruments in the interpretation of the relevant articles of the Convention. 2 These universal human rights treaties can sometimes be used as an interpretive tool in a systematic, teleological and supportive manner. However, in some cases, by comparison, they also show differences in the perception and interpretation of children's rights and can serve as a contrast film. 3 Furthermore, the Preamble highlights the historical dimension of the CRC, since it hails the efforts to bring children’s rights to global attention. The Convention did not emerge from nothing or “out of the blue”, but builds on the precursors, namely the 1924 Geneva Declaration of the Rights of the Child and the 1959 Geneva Declaration of the Rights of the Child.3 The Preamble thus portrays the CRC as an extension of the human rights efforts under the League of Nations and under the auspices of the United Nations. 4 During the drafting, the drafters placed great emphasis on the fact that the Convention was an instrument for children's rights that remained sensitive to the concerns of other constituents, such as the parents and the (extended) family. Accordingly, the Preamble sets the family as the fundamental group of society. This is also evident in the provisions of Articles 5, 9 and 18 CRC, which are largely based on the fact that the child should preferably grow up within the family. In other words, the Convention 1

See → Introduction mn. 15. W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. P.02. 3 See → Introduction mns. 2, 12, 14.

1

2

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[Definition]

underscores the key role that parents and the family play in the realisation of the rights of the child and is in no way “anti-parent”.4 The Preamble also served as a location for highly controversial issues that have 5 not been included in the text of the Convention. For example, the beginning of life is specified neither in Article 1 nor in Article 6 CRC.5 The protection of the embryo is also not mentioned in other provisions of the operational part of the Convention. Instead, Recital 9 of the Preamble calls for special safeguards and care for children before as well after birth. At the same time, it was noted that in adopting this preambular paragraph, the drafters did not intend to prejudice the interpretation of Article 1 CRC or any other provision of the Convention by the States Parties.6 Another issue that was debated during the drafting and eventually included in the Preamble was on refining the situation of children living in difficult situations, in particular in the developing world. Therefore, the Preamble recognises the importance of international cooperation for improving the living conditions of children in every country, in particular in the developing countries. This reference is also found in the operative part of the Convention, namely in Article 4 CRC. In sum, the Preamble not only provides guidance on the interpretation of the operational provisions of the CRC but it has also political significance because it refers to particular issues of contention, such as parental rights, the beginning of life and international cooperation.7

Article 1 [Definition] For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definition of Childhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. End of Childhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Beginning of Childhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Relevance and Process of Age-Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Embedding of Article 1 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 7 10 14

I. Generalities Article 1 CRC defines the term “child” for the purposes of the Convention. There- 1 upon, this provision limits the personal scope of the CRC, its application ratione personae. This means that Article 1 CRC delineates those to whom the remaining articles of the Convention apply and thus determines who is entitled to the rights enshrined in the Convention.1 During the drafting of the Convention, while the drafters were eager to See → Introduction mn. 37; → Article 5 mn. 10. See → Article 1 mn. 8; → Article 6 mn. 5. 6 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, p. 11; see also Detrick, The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’, p. 108, at 110. 7 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. P.08. 1 D Archard/J Tobin, Article 1, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 21, at 22. 4

5

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[Definition]

ensure that the CRC would apply to as wide an age group as possible, Article 1 CRC was a matter of controversy, in regards to the definition of both the beginning and the end of childhood. In the end, the drafters acknowledged the need for some degree of flexibility, particularly in relation to those countries in which the established legal age is other than 18 years.2

II. Definition of Childhood 2

The compromise on the flexibility on the upper age limit also shows that Article 1 CRC is only about the personal scope of application of the treaty, and not about establishing a universal social conception of childhood.3 Article 1 CRC contains no definition of childhood as such. A definition, or even a classification, of childhood in different stages was considered as artificial and arbitrary with respect for the multitude of cultures in the world.4 Conceptual graduations such as “infant”, “toddler”, “school child”, “adolescent” or “young person” are not given in the remaining provisions of the CRC, either.5 Therefore, the Convention rights apply to children of all ages. However, this does not mean that age grades would be completely alien to the Convention. Firstly, Article 12 para. 1 CRC refers to the age and maturity of a child.6 Secondly, the CRC Committee regularly emphasises that all provisions of the Convention must be interpreted in relation to the age and maturity of the child.7 Children should not be conceived as a homogeneous group. Juveniles and adolescents shall be given different standards compared to those of infants or younger children.8 States Parties are allowed and even urged, to implement the Convention in nuanced ways, in accordance with children’s different stages of development and their evolving capacities.9 Although the CRC Committee does not give a precise definition of adolescence, it sets as a rough guideline the age between 10 and 18 years.10

III. End of Childhood 3

Article 1 CRC defines the child as a person below the age of 18 years, unless majority in accordance with national laws of the States Parties is attained earlier. Given the understanding of the drafters to accept a strict and relatively high threshold for the upper age limit, Article 1 CRC contains a flexibility clause reflecting the compromise that was necessary to accommodate the fact that the age at which a child attains legal adulthood varies from one country to another.11 States Parties are given the discretion to set a legal age that is lower than 18 years. This reflects the fact that some national legal systems 2 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 50 et seq. See also → Article 1 mn. 3. 3 Rightly so, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 1.11-1.12. 4 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 32. 5 R Bethke, Das Übereinkommen der Vereinten Nationen über die Rechte des Kindes, 1996, p. 54. 6 See → Article 12 mn. 14. 7 See, e.g., CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 1. 8 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 6. 9 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 1. See also CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 2; General Comment No. 7, CRC/C/GC/7/Rev.1, 2006, paras 1, 4, 8. 10 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 5. 11 As to the controversial discussion during the drafting process see OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. I, 2007, p. 302 et seq.

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stipulate an earlier coming of majority.12 States where majority is reached before the age of 18 years include, for instance, Iran (16 years), Nepal (16 years), Kyrgyzstan (16 years), Tajikistan (17 years), Turkmenistan (16 years) and Uzbekistan (16 years). The attainment of majority on account of marriage before 18 years of age exists, e.g., in the domestic laws of Afghanistan, Iran, Mali, and Syria.13 The possibility given to States Parties under Article 1 CRC to adopt a legal definition of majority other than 18 years of age demonstrates not only a compromise but also a culturally sensitive approach to this issue. There are only two provisions in the Convention which nonetheless either use an unqualified age limit or establish a critical exception to the upper age limit in Article 1 CRC: Article 37 lit. a CRC prohibits the imposition of capital punishment and life imprisonment without possibility of release on any person below 18 years of age, and Article 38 paras 2 and 3 CRC refers to persons who have not attained the age of 15 years. 14 The CRC Committee is however increasingly turning against any legal responsibility 4 of persons under the age of 18 years. It presses States Parties to adopt 18 years as the endpoint for childhood and urges them to review their legislation to ensure that all children up to the age of 18 years receive the protection they need as provided for in the Convention.15 In particular, child marriage under the age of 18 years would not be in line with the best interests of the child as defined in Article 3 CRC. 16 In addition, the CRC Committee is seriously concerned that the minimum age for marriage in some States Parties is still set at a range between 12 and 16 years for girls and it urges the States Parties to ensure that the minimum age for marriage is established at 18 for both girls and boys alike and to take all necessary measures to eliminate child marriages.17 The view of the CRC Committee is supported by the African Court on Human and Peoples' Rights (ACtHPR), which has recently found that the Mali family law, according to which the minimum age for contracting marriage at 18 for boys and 16 for girls, violates the African Charter on the Rights and Welfare of the Child.18 It is questionable, though, whether the text of Article 1 CRC supports such an unequivocal and far-reaching position by the CRC Committee. At the same time, it is true that States Parties must, at least, justify any deviation of the standards set out in Article 1 CRC, in particular with regard to any definition of a child that does not extend to 18 years.19 Therefore, suggestions that increased dialogue with governments about the importance of conceptualising persons under 18 years as children with special rights are likely to 12 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 304. Critical view by D König, in: E Klein (ed.), Globaler demographischer Wandel und Schutz der Menschenrechte, 2005, p. 222, at 230. 13 See HA Baloutaki, in: O Cvejić Jančić (ed.), The Rights of the Child in a Changing World, 2016, p. 183, at 183; L-M Möller/N Yassari, Wenn Jugendliche heiraten, Kritische Justiz 50 (2017), p. 269, at 272. 14 For more detail see → Article 37 mn. 7; → Article 38 mns. 22 et seq. 15 See CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 25; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 27; Cuba, CRC/C/CUB/CO/2, 2011, paras 22-23.; Namibia, CRC/C/NAM/CO/2-3, 2012, paras 28-29; Pakistan, CRC/C/PAK/CO/3-4, 2009, paras 26 et seq.; Tonga, CRC/C/TON/CO/1, 2019, paras 19-20. 16 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 40. See also A Kron, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 114, at 119-120, 131. For more detail see → Article 10 mn. 3. 17 CRC Committee, Concluding Observations: Vanuatu, CRC/C/VUT/CO/2-4, 2017, paras 17-18; Sri Lanka, CRC/C/LKA/CO/5-6, 2018, para. 15; Bahrain, CRC/C/BHR/CO/4-6, 2019, para. 15; Cook Islands, CRC/C/COK/CO/2-5, 2020, para. 17. 18 ACtHPR, Judgment of 11 May 2018, No. 046/2016, paras 59, 78 – Association pour le progrès et la défense des droits des femmes maliennes and The Institute for Human Rights and Development in Africa v. Republic of Mali, reprinted in: Human Rights Law Journal 2018, p. 38 et seq. 19 D Archard/J Tobin, Article 1, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 21, at 28.

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[Definition]

be more conducive under the object and purpose of the Convention than the extensive interpretation of the upper age limit by the CRC Committee.20 5 On the other hand, Article 1 CRC sets a strict maximum with respect to the question when childhood ends. This occurs at the age of 18 years, and not a moment later. This limitation precludes, for instance, legal practices in Western Europe during the second half of the 20th century setting the legal age at 21 years.21 However, as regards the age of criminal responsibility, the CRC Committee is more lenient. It merely recommends that the minimum age shall not be set too low. A minimum age under 12 years is, from the perspective of the CRC Committee, no longer internationally recognised.22 In its most recent General Comment No. 24 (2019), the CRC Committee even encourages States Parties to increase the minimum age of criminal responsibility to at least 14 years of age.23 6 The compromise expressed in Article 1 CRC between a high age-limit and the flexibility given to States Parties is not entirely unproblematic. States Parties may restrict the personal scope of the Convention and thus limit the scope of application of children’s rights.24 In addition, the concept of majority varies in some countries, depending on whether the area of law to be applied qualifies as civil law or whether the issue concerns criminal responsibility. Such “partial adulthood” is, as a rule, not acceptable under the Convention unless it is proven not to be detrimental to the child. The concept of majority as defined in Article 1 CRC refers principally to the full legal capacity.25 Due to the flexibility clause, the States Parties remain however free to apply partial legal capacity for the benefit of the child under 18 years of age.26 Yet, Article 1 CRC shall in no way be interpreted to the effect that it authorises States Parties to fix age limits which are incompatible with the object and purposes of the Convention and the best interests of the child.27 This is especially the case when age limits negatively affect only a specific group of children, for instance, girls or migrant children. Such differences in age limits to the detriment only of a certain group of children clearly violate the prohibition of discrimination in Article 2 para. 1 CRC. If States deviate from the age of majority as established in Article 1 CRC, they must not only justify their particular threshold but also extend this regulation to all children of a certain age group. Any reduction of the age of maturity, even partially, destined only for a certain group of children is not allowed by the flexibility clause of Article 1 CRC, read in conjunction with Article 2 para. 1 CRC.28 In particular, the CRC Committee is concerned that 20 Similar criticism by D Archard/J Tobin, Article 1, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 21, at 40. See also L-M Möller/N Yassari, Wenn Jugendliche heiraten, Kritische Justiz 50 (2017), p. 269, at 283. 21 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 138. 22 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 32. 23 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 21-22. For more detail see → Article 40 mn. 26. 24 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 37; see also → Article 2 mns. 10, 14. 25 Clearly so, CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 9; further see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 59. 26 HA Stöcker, Die UNO-Kinderkonvention und das deutsche Familienrecht, Zeitschrift für das gesamte Familienrecht 1992, p. 245, at 248. 27 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 60. 28 Rightly so, H Heinhold, in: H Kauffmann/A Riedelsheimer (eds.), Kindeswohl oder Ausgrenzung? Flüchtlingskinder in Deutschland nach der Rücknahme der Vorbehalte, 2010, p. 60, at 65; H Krieger, Die UN Kinderrechtskonvention und die Handlungsfähigkeit unbegleiteter Minderjähriger im deutschen Asyl- und Ausländerrecht, Recht der Jugend und des Bildungswesens 2012, p. 206, at 213. See also → Article 2 mn. 24.

36

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children in the migration context between 15 and 18 years tend to be provided much lower levels of protection than nationals, and are sometimes considered as adults or left with ambiguous migration status. It urges States Parties to ensure that equal standards of protection are provided to every child, including those above the age of 15 years and regardless of their status.29

IV. Beginning of Childhood Even more controversial than the end of childhood is the beginning of childhood and 7 thus the starting point to activate the protections guaranteed in the Convention. During the drafting of the CRC, the Holy See, Malta and some other, mainly Catholic countries argued for the inclusion of the protection of unborn life in the operative part of the Convention.30 Article 1 CRC should define the moment of conception as the time when life begins. Other countries, in contrast, objected to this definition, not only because it lacks scientific grounding but also because it would mean that abortion would always and unconditionally have to be considered as a violation of the child’s right to life.31 Because the extension of the applicability ratione personae of the Convention not only raises questions relating to the lawfulness of abortion, but also to the admissibility of artificial fertilisation and medical experiments on embryonic stem cells,32 a consensus in regards to the scope of the Convention was reached neither at the time of drafting, nor will it certainly be reached in the near future.33 Consequently, efforts to establish protection of prenatal life were finally abandoned in the drafting process. It was decided that the operative part of the Convention remains silent on the issue, leaving the decision to the full discretion of States Parties.34 A few countries, such as Argentina and the United Kingdom, have therefore added unilateral declarations concerning the issue of abortion.35 The proponents of the protection of prenatal life attained, however, certain compen- 8 sation through the introduction of Recital 9 into the Preamble of the CRC, according to which "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth". This Recital derives from the 1959 Children Rights Declaration36 that also referred to the vulnerability of children before and after birth.37 In accordance with Article 31 para. 2 of the 1969 Vienna Convention on the Law of the Treaties, the Preamble is intended 29 See CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 3. 30 See Commission on Human Rights, Report of the Working Group, E/CN.4/L.1542, 1980, para. 29. 31 See P Alston, The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child, Human Rights Quarterly 12 (1990), p. 156, at 158 et seq. 32 For more detail see F Broughton, Overstepping the mark?, International Journal of Children’s Rights 24 (2016), p. 687 et seq. 33 See, e.g., S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 55 et seq.; R Joseph, Human Rights and the Unborn Child, 2009, p. 121 et seq.; N Peterson, The Legal Status of the Human Embryo in vitro: General Human Rights Instruments, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65 (2005), p. 447 et seq. 34 P Alston, The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child, Human Rights Quarterly 12 (1990), p. 156, at 157, 167. 35 See N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 137. As regards the admissibility of unilateral declarations see → Articles 46-54 mn. 6. 36 See → Introduction mn. 14. 37 See M Palm-Risse, Hilfe für die Wehrlosen: Die Konvention über die Rechte des Kindes, Vereinte Nationen 1990, p. 101 et seq.; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 33 et seq.

37

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to serve as an inspirational or teleological aid to interpretation of the whole Convention, in circumstances where the meaning of a term is ambiguous or obscure.38 Yet, the term “human being” in Article 1 CRC is clearly not meant to extend to an unborn child, as the drafting process shows.39 Furthermore, the content of the Preamble to the CRC is not legally binding. The preamble of a human rights treaty is not an operative part of the treaty and does not itself impose any obligations on States Parties.40 The definite explanation in the travaux préparatoires of the CRC clarifies that the adoption of the Preamble does not constitute an intention to allow any prejudged interpretation of Article 1 CRC or of any other provision of the Convention by the States Parties.41 Therefore, it cannot be assumed that the CRC establishes binding obligations for the protection of unborn life.42 This also becomes apparent when one considers that the substantial rights contained in the Convention only relate to an already born child.43 The CRC neither obliges the prohibition nor permits abortion nor does it offer a solution for the contentious issue on the legal protection before birth.44 9 The question of when childhood begins is directly linked to the right to life, survival and development as provided in Article 6 CRC.45 However, Article 6 CRC also contains no express reference to the unborn child, and given the drafting history of Article 1 CRC, it is not to be understood as protecting the child in utero.46 Some States Parties made declarations upon ratification that, according to their legal systems, the right to life already begins at the moment of conception.47 In view of the whole drafting process of the Convention, the States Parties remain, in fact, free to protect prenatal life in their national laws. Although the CRC Committee has refrained from entering this contentious issue, it has however expressed concerns about the practice of sex-selective abortion.48 These concerns are regularly located under the discussion of the right to non-discrimination on the grounds of sex and gender equality pursuant to Article 2 para. 1 CRC.49 Nevertheless, the CRC Committee’s statements indirectly relate to the treatment of the unborn child. It remains doubtful whether the CRC Committee’s mandate really extends to such comments in view of Article 1 or Article 6 CRC. 50 There is rather an argument to suggest that this is an ultra vires action by the CRC Committee. 38 P Alston, The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child, Human Rights Quarterly 12 (1990), p. 156, at 171. See also → Preamble mn. 1. 39 See C Zampas/J Gher, Abortion as a Human Right. International and Regional Standards, Human Rights Law Review 8 (2008), p. 249, at 262 et seq. 40 D Archard/J Tobin, Article 1, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 21, at 24. See also → Preamble mn. 1. 41 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, p. 11. 42 Rightly so, P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 3. Disagreeing MK Eriksson, The Legal Position of the Unborn Child in International Law, German Yearbook of International Law 36 (1993), p. 86, at 99 et seq. 43 A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 56, at 64. 44 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 1.02-1.04. 45 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 34. 46 See → Article 6 mn. 5. 47 See → Article 1 mn. 7. 48 CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/2, 2005, paras 28-29; India, CRC/C/IND/CO/3-4, 2014, paras 33-34. 49 See → Article 2 mn. 10. 50 Critical assessment also by D Archard/J Tobin, Article 1, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 21, at 26, and F Broughton, Overstepping the Mark? The UN Committee on the Rights of the Child’s Recommendations to Decriminalize Abortion in Ireland and the Meaning of “Child” within the Convention on the Rights of the Child, International Journal of Children’s Rights 24 (2016), p. 687-717.

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[Definition]

V. Relevance and Process of Age-Assessment In the regular course of events, the registration of a child’s birth consistent with 10 Article 7 CRC will provide evidence regarding the age of a person claiming to be a child. In practice, however, the birth of a child is not always (correctly) registered or the official record may not be available, for instance, in the context of migration and flight.51 In such circumstances, there is a need to determine whether a person is a child. The assessment of the age of a young person who claims to be a minor but is unable to prove his or her age via official documents is of fundamental importance, as the outcome determines whether that person will be entitled to or excluded from national protection as a child.52 Similarly, the enjoyment of the rights contained in the CRC and its Optional Protocols flows from that determination.53 In the opinion of the CRC Committee, it is imperative that there be due process to determine a person’s age in case of uncertainty, as well as the opportunity to challenge the outcome through an appeals process. Because the best interests of the child shall be a primary consideration throughout all the Convention guarantees (see Article 3 CRC), the person should be given the benefit of the doubt and treated as a child within the meaning of Article 1 CRC, while the process of age-assessment is underway.54 The presumption of minority in case of uncertainty shall also be established in domestic law.55 In the absence of identity documents or other appropriate evidence, to make an 11 informed estimate of age, States Parties should, according to the CRC Committee, undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or equivalent professionals. Such assessments should be carried out in a prompt, child-friendly, gender-sensitive and culturally appropriate manner, including interviews of children and, as appropriate, accompanying adults, in a language which the child understands.56 In particular with regard to unaccompanied young persons, due to their migration and flight experience, their mere physical appearance might be different from that of a person living a regular life and should not be a relevant factor in determining their age.57 Moreover, bone age and 51 See D Archard/J Tobin, Article 1, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 21, at 31. 52 See, for instance, K Neundorf, Die Altersbestimmung bei unbegleiteten Minderjährigen, Zeitschrift für Ausländerrecht und Ausländerpolitik 2018, p. 238, at 240 et seq.; J Gelhaar, Die Praxis der Alterseinschätzung von unbegleiteten minderjährigen Flüchtlingen, Kritische Justiz 52 (2018), p. 179, at 185 et seq. 53 See CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.3; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.3. 54 See CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.3; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.3; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.3; R.K. v. Spain, Views adopted on 18 September 2019, CRC/C/81/D/27/2017, para. 9.7. See also CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4CRC/C/GC/23, 2017, para. 4. 55 Clearly so, CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 25 and 31. The view of the CRC Committee is supported by A Klein, Alterseinschätzung bei unbegleiteten minderjährigen Flüchtlingen, Kritische Justiz 49 (2015), p. 405, at 412 et seq.; J Gelhaar, Die Praxis der Alterseinschätzung von unbegleiteten minderjährigen Flüchtlingen, Kritische Justiz 52 (2018), p. 179, at 190 et seq. 56 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.4; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, paras 12.4 and 12.7; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.6. See also CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 4. 57 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 31 (i).

39

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chronological age are not necessarily the same, as a child’s growth and development can be affected not only by genetic, pathological, nutritional, hygienic and health factors reflecting their social status but also by ethnic features.58 In particular, the x-ray evidence based on the Greulich and Pyle atlas, which is used in several countries, is considered by the CRC Committee as a method lacking precision and with a wide margin of error. This is all the more so as the test is originally based on a sample of healthy children of uppermiddle-class background from the United States of America and is thus not transferrable to persons from the African continent due to differences in skeletal development based on ethnic origin.59 Therefore, the Greulich and Pyle test is not suitable for use as the sole method for determining the chronological age of a young person who claims to be a minor.60 The CRC Committee insists that States Parties should refrain from solely using medical methods based on bone and dental exam analysis, which may be inaccurate, with wide margins of error, and can also be traumatic and lead to unnecessary legal processes.61 Instead, a multidisciplinary approach in the age-assessment process shall be taken.62 12 In sum, as regards age-assessment of a young person claiming to be a minor protected by the CRC, documents that are available should be considered genuine unless there is proof to the contrary. 63 The benefit of the doubt should always be given to the individual being assessed. In other words, the mere statement of the individual regarding his or her minority is to be preferred over the age provided by the flawed medical Greulich and Pyle test. At least, this is the opinion expressed by the majority of the members of the CRC Committee in the case of N.B.F. v. Spain (2018).64 However, some CRC Committee members, though concurring with the findings, have expressed criticism against the argument of the majority referring to the absence of reliable evidence regarding age. While they do not make a finding as to which party bears the onus to produce such evidence, it must be noted that in the case of N.B.F. v. Spain neither party did so, nor gave reasons for that failure.65 In the absence of reliable evidence and in the context of 58 See CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 3.2. Concurring opinion by L Gundelach, Die Rechtsprechung zur medizinischen Altersfeststellung, Neue Zeitschrift für Verwaltungsrecht 2018, p. 1849, at 1850. 59 See CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, paras 3.2 and 8.4. Concurring opinion by E Rudolf, Entschließung Deutscher Ärztetage über die forensische Altersdiagnostik, Rechtsmedizin 24 (2014), p. 459, at 460 et seq.; K Neundorf, Die Altersbestimmung bei unbegleiteten Minderjährigen, Zeitschrift für Ausländerrecht und Ausländerpolitik 2018, p. 238, at 245. 60 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.6; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.6. But, on the other hand, see also CRC Committee, M.E.B. v. Spain, Decision adopted on 2 June 2017, CRC/C/75/D/9/2017; Decision adopted on 25 January 2018, R.L. v. Spain, CRC/C/77/D/18/2017. 61 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 4. Further see CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, paras 8.4. and 12.4; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.4. 62 CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/3-6, 2019, paras 41-42. 63 CRC Committee, J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.4. 64 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, paras 12.3 et seq. Concurring opinion by J Gelhaar, Die Praxis der Alterseinschätzung von unbegleiteten minderjährigen Flüchtlingen, Kritische Justiz 52 (2018), p. 179, at 190; A Klein, Alterseinschätzung bei unbegleiteten minderjährigen Flüchtlingen, Kritische Justiz 49 (2015), p. 405, at 412 et seq. 65 Joint concurring opinion of Committee members BD Mezmur, OA Khazova, AM Skelton and V Todorova to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex I, paras 6 -7, 11. See also the individual dissenting opinion of Committee member M Otani to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex II, para. 4.

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an age-determination process that lacks the safeguards required by the Convention, the author of the communication has to be given the benefit of the doubt and be treated as a child.66 However, this situation should be avoided in future cases, and parties should make the effort to obtain and present all available evidence or explain the absence thereof.67 Significantly more restrictive is the view expressed by some dissenters. In their 13 dissenting individual opinions to the case N.B.F. v. Spain, CRC Committee members Mikiko Otani and Hatem Kotrane underline that the author of the communication, having not provided any evidence proving he was a child though his status as a minor was challenged by the authorities of the State Party, the rights of the child could not be deemed to be violated.68 The reasoning of the majority decision centres on reminding the State Party of the limitations of medical tests. Thus, if doubts persist between the results of a scientific test showing the individual to be an adult and documents that attest the contrary, the individual should be given the benefit of the doubt and deemed to be a child.69 The situation is however different when no doubt exists and the young person concerned presents no documents and simply claims to be a child, while the immigration authorities have had to conduct a scientific test, as a result of which they are satisfied that he or she is an adult. Therefore, the majority decision that the State Party has violated the Convention appears exaggerated in view of the fact that the rights set forth in the Convention apply solely to children.70 The opinion of the dissenters is to be agreed with. The majority decision rather confuses two different issues that should be evaluated separately: on the one hand, whether the age-determination process used by the State Party infringed its obligations under the Convention, and on the other hand, whether the author’s subjective rights under the CRC were violated.71

VI. Embedding of Article 1 CRC into the System of International Human Rights Protection Various universal and regional human rights conventions contain special provisions 14 on behalf of children, e.g., Article 14 para. 1 and Article 24 ICCPR, Article 10 para. 3 and Article 12 para. 2 ICESCR, Article 19 ACHR, Article 18 para. 3 ACHPR, Article 5 of the Additional Protocol No. 7 to the ECHR, and Articles 24 and 32 of the EU Charter of Fundamental Rights. None of these instruments, however, contains an explicit definition of a child or of childhood. Article 1 CRC is the first human rights treaty to offer a

66 Joint concurring opinion of Committee members BD Mezmur, OA Khazova, AM Skelton and V Todorova to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex I, para. 13. 67 Joint concurring opinion of Committee members BD Mezmur, OA Khazova, AM Skelton and V Todorova to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex I, para. 11. 68 See the individual dissenting opinion of Committee member M Otani to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex II, paras 3 et seq.; and of Committee member H Kotrane, ibid., Annex III, paras 7 et seq. 69 See the individual dissenting opinion of Committee member H Kotrane to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex III, para. 9. 70 Individual dissenting opinion of Committee member H Kotrane to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex III, para. 12. 71 See the individual dissenting opinion of Committee member M Otani to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex II, para. 5.

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definition of a child, and it served as a model provision for Article 2 ACRWC which contains the same definition as Article 1 CRC.72 15 Referring to Article 24 ICCPR, the Human Rights Committee gives the Contracting States considerable leeway regarding the definition of childhood: the age constituting majority should be determined by the States Parties in light of their social and cultural conditions.73 On the other hand, an autonomous definition of the child can be found at the European level. Both Article 1 para. 4 of the EU Framework Decision on Combating Trafficking in Human Beings74 and Article 1 lit. a of the EU Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography75 define the term “child” as a person under 18 years of age. Article 2 lit. a of the EU Directive on Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography,76 which replaces the Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography, also describes any person under 18 years of age as a child. The same applies to the EU Directive 2011/36/EU, adopted on 5 April 2011, in order to prevent and combat trafficking in human beings.77 The Council of Europe law also characterises children as persons under the age of 18 years, as is shown, for example, in Article 3 lit. a of the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse of 25 October 2007.78 The ECtHR endorses this definition explicitly while having recourse to Article 1 CRC in its case-law.79 Finally, Article 24 of the EU Charter of Fundamental Rights equally applies to all persons who have not yet reached the age of 18 years.80 Therein lies a substantial alteration between Article 24 and Article 32 of the Charter as the latter norm differentiates between children and adolescents,81 without putting into question the maximum age limit of 18 years. 16 In human rights law, in general, it is uncontroversial that human life begins at the latest with birth.82 However, there exists no human rights convention which expressly qualifies unborn life as human life or as a child. The same is true for Article 24 of the EU Charter of Fundamental Rights, and with some limitations, also for Article 2 and Article 3 of the Charter.83 Only Article 4 para. 1 ACHR goes so far as protecting, in principle, the prenatal life from the moment of conception.84 In Artavia Murillo et al. v. Costa Rica (2012), however, the Inter-American Court of Human Rights regarded Costa Rica’s general prohibition of in vitro fertilisation, due to the consideration by the State, as a risk of abuse of embryos in laboratories. The Court ruled that while a fertilised egg 72 D Archard/J Tobin, Article 1, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 21, at 22. 73 See Human Rights Committee, General Comment No. 17: Rights of the child, HRI/GEN/1/Rev.9 (Vol. I), 1989, p. 193, para. 4. Further see M Nowak/WA Schabas, CCPR, Commentary, 3 rd edn. 2019, Article 24 mn. 14. 74 Framework Decision No. 2002/629/JI, OJ EU 2002, No. L 203, p. 1. 75 Framework Decision No. 2004/68/JI, OJ EU 2004, No. L 13, p. 44. 76 Directive 2011/93/EU, OJ EU 2011, No. L 335, p. 1, modified by OJ EU 2012, No. L 18, p. 7. 77 Directive 2011/36/EU, OJ EU 2011, No. L 101, p. 1. 78 ETS No. 201. 79 ECtHR, Judgment of 20 January 2009, No. 70337/01, paras 58, 82 et seq. – Güveç v. Turkey; Judgment of 9 October 2012, No. 1413/07, para. 36 – Çoşelav v. Turkey. 80 See S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, 2 nd edn. 2021, § 19 mn. 101, with further references. 81 See B Hüpers/B Reese, in: J Meyer/S Hölscheidt (eds.), Charta der Grundrechte der EU, 5 th edn. 2019, Article 32 mns. 13 et seq. 82 JA Frowein, in: JA Frowein/W Peukert (eds.), EMRK-Kommentar, 3 rd edn. 2009, Article 2 mn. 3. 83 See J Ennuschat, in: PJ Tettinger/K Stern (eds.), Kölner Gemeinschaftskommentar zur Europäischen Grundrechte-Charta, 2006, Article 24 mn. 8. 84 Article 4 para. 1 ACHR states: “This right shall be protected by law and, in general, from the moment of conception”.

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[Definition]

Art. 1

has sufficient genetic information for potential development into a human being, it is not a child for the purposes of the CRC and subsequently does not hold the right to life according to the ACHR either.85 On the other hand, there exist some provisions in human rights conventions which provide indirect protection to unborn life, such as the prohibition of the death penalty for pregnant women in Article 6 para. 5 ICCPR. The protection of unborn life is also a controversial topic under the ECHR. While 17 the European Commission on Human Rights had initially left open the question as to whether the Convention protects human life before birth or not,86 the Commission had one year later accepted certain limitations to the protection of prenatal life in regards abortions in order to protect prospective (pregnant) mothers.87 The ECtHR recognises, in principle, a wide margin of appreciation of the Contracting States.88 However, the refusal of abortion in case of imminent danger or damage to the mother’s health is clearly contrary to Article 8 ECHR.89 Yet, apart from this protection, there is no European consensus on the exact point, from both scientific and legal perspectives, at which life begins and if the nasciturus itself is considered as a legal person and endowed with rights.90 In any case, an embryo does not have independent rights or interests and cannot claim – or have claimed on its behalf – a right to life under Article 2 ECHR.91 In parallel, the Human Rights Committee considers it inhuman treatment and interference with the right to privacy to deny a pregnant woman the opportunity to abort a foetus that is not viable or if the pregnancy results in health risks for the mother. If the pregnant woman is a minor, the State Party also fails to fulfil its obligation to provide children the appropriate protections under Article 24 ICCPR.92 As regards age-determination, the ECtHR holds medical age-determination tests, in 18 principle, to be in conformity with human rights. At least, in the case Ahmade v. Greece, the Court interprets the young person’s refusal to undergo a dental x-ray as a sign that he was afraid the test would reveal that he was not the age he claimed to be.93 On the other hand, according to a 2017 Council of Europe report, the procedural safeguards afforded under international treaties are not upheld consistently across Member States. It is therefore necessary that States should consider not only the physical appearance of the individual, but also his or her psychological maturity, thereby adopting a multidisciplinary approach.94 The x-ray method based on the Greulich and Pyle atlas is deemed unsuitable to the non-European population, which consists mostly of adolescents from 85 IACtHR, Judgment of 28 November 2012, Series C No. 257, paras 174 et seq., 223, 317 – Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica. For a critical view see RS Barker, Inverting Human Rights: The Inter-American Court versus Costa Rica, University of Miami Inter-American Law Review 47 (2016), p. 1, at 9. 86 See EComHR, Decision of 19 May 1976, No. 6959/75, p. 111, para. 3, p. 115, para. 5 – Brüggemann and Scheuten v. Germany. 87 EComHR, Decision of 13 May 1980, No. 8416/78, p. 9, paras 17 et seq. – Paton v. The United Kingdom. 88 ECtHR, Judgment of 16 December 2010, No. 25579/05, paras 212 et seq. – A., B. & C. v. Ireland; see also ECtHR, Judgment of 27 August 2015, No. 46470/11, paras 175 et seq. – Parrillo v. Italy. 89 ECtHR, Judgment of 20 March 2007, No. 5410/03, paras 114 et seq. – Tysiąc v. Poland. 90 See ECtHR, Judgment of 8 July 2004, No. 53924/00, paras 82 et seq. – Vo v. France; ECtHR, Judgment of 16 December 2010, No. 25579/05, para. 237 – A. B. & C v. Ireland. Similar assessment by CJEU, Judgment of 18 October 2011, Case C‑34/10, ECLI:EU:C:2011:669, paras 30 et seq. – Brüstle/Greenpeace, in relation to Article 6 para. 2 lit. c of Directive 98/44/EC. 91 See ECtHR, Judgment of 10 April 2007, No. 6339/05, para. 54 – Evans v. The United Kingdom. 92 Human Rights Committee, CCPR/C/85/D/1153/2003, 2003, para. 6.3 et seq. – Llantoy-Huamán v. Peru. 93 ECtHR, Judgment of 25 September 2012, No. 50520/09, paras 77 and 78 – Ahmade v. Greece. 94 See D Wenke, Age Assessment: Council of Europe member states’ policies, procedures and practices respectful of children’s rights in the context of migration, Council of Europe: Report, 2017, p. 6.

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[Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect]

Saharan Africa who are fleeing their countries of origin, often in precarious socioeconomic conditions. Several studies show that there are differences in skeletal development based on ethnic origin and socioeconomic status.95 Particularly in the 15-to-18-age group, the method shows significant margins of error.96 According to the CoE Commissioner for Human Rights, associations of paediatricians across Europe state clearly that dental and skeletal maturity cannot be used in assessing the exact age of a child.97 In its Resolution of 12 September 2013 on the situation of unaccompanied minors in the European Union, the European Parliament deplores the unsuitable and intrusive nature of the medical techniques used for age-assessment based on bone maturity, which may cause trauma, show wide margins of error, and are sometimes even performed without the child’s consent.98 Finally, also the Human Rights Committee has recently expressed concerns about inadequate procedures to determine the age of unaccompanied minors, and criticised States Parties whose legislation creates a presumption that migrants are of the age of majority.99

Article 2 [Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect] 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Prohibition of Discrimination (Article 2 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . 1. Necessity of a Ground-Specific Non-Discrimination Clause with Regard to Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Prohibition of Discrimination as a Non-Autonomous Provision . . . . . . . . . 3. Definition of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Right-Holders and Grounds of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) National Origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Religion and Ideological Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 7 12 13 20 21 22 23 28 29

95 M Mansourvar et al., The applicability of Greulich and Pyle atlas to assess skeletal age for four ethnic groups, Journal of Forensic and Legal Medicine 22 (2014), p. 26-29. 96 See T Smith/L Brownlees, Age assessment practices: a literature review & annotated bibliography, UNICEF: Discussion paper, 2011, p. 13-15. See also CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 8.4. 97 CoE Commissioner for Human Rights, Methods for assessing the age of migrant children must be improved, 2011, p. 1, at 2 et seq. 98 European Parliament, Resolution 2012/2263 (INI), 12 September 2013, para. 15. See also FRA, Migration to the EU: five persistent challenges, 2018, p. 16; D Rosani, in: M Klaassen/S Rap/P Rodrigues/ T Liefaard (eds.), Safeguarding Children’s Rights in Immigration Law, 2020, p. 41, at 56 et seq. 99 See Human Rights Committee, Concluding Observations: Slovakia, CCPR/C/SVK/CO/4, 2016, paras 32-33; Spain, CCPR/C/ESP/CO/6, 2015, para. 23.

44

Art. 2

[Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect] f) Ethnic Origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g) Other Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Duty-Bearers of the Prohibition of Discrimination . . . . . . . . . . . . . . . . . . . . . . . 6. Particular Positive Obligations Arising from Article 2 para. 1 CRC to Fight De Facto Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Obligations to Protect (Article 2 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 2 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31 32 34 36 38 40

I. Generalities Article 2 CRC is formulated as an umbrella right which means that the right is 1 attached to or forms part of all the rights enshrined in the Convention.1 Article 2 CRC contains two significant rules. On the one hand, it establishes a prohibition of discrimination; on the other hand, it specifies the nature of State obligations flowing from the Convention. Since States Parties must guarantee, according to Article 2 para. 1 CRC, every child under their jurisdiction the rights set forth in the Convention, the rights laid down in the CRC are not limited to State nationals or citizens. Foreign and stateless children must receive the same measure of protection as nationals, provided that they are subject to the State’s jurisdiction.2 An exception applies only where the Convention expressly points to the contrary, as is the case in Article 22 CRC, which regulates additional and specific rights for foreign refugee children that are not applicable to nationals.3 However, it is to be underlined that national regulations regarding the acquisition of nationality remain unaffected by Article 2 para. 1 CRC. Also, Article 7 para. 1 CRC intentionally leaves a right to a particular nationality unestablished. It instead pursues merely the aim of avoiding, to the largest possible extent, the statelessness of children.4 On the other hand, even children without authorised residence in a State’s territory fall within the scope of the Convention.5 During the drafting process, the United States of America tried to limit the scope of protection to those children who were lawfully in the territory.6 This proposal was harshly criticised and finally abandoned.7 The CRC Committee emphasises again and again that a child is protected by the Convention particularly for being a child, regardless of his or her other status.8 This includes children from unrecognised refugees who are only “tolerated” in the jurisdiction of a State Party without having a proper legal status as well as accompanied

1 See B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 1 et seq. 2 P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at p. 5. 3 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 69-70. See also → Article 22 mns. 1 et seq. 4 See → Article 7 mn. 3. 5 I Baer, Verabschiedung des UN-Übereinkommens über die Rechte des Kindes im November 1989 in New York, Familie und Recht 1990, p. 192, at 192; C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 71. 6 See L LeBlanc, The Convention on the Rights of the Child, 1995, p. 95-96. 7 Commission on Human Rights, Report of the Working Group, E.CN.4/L.1575, 1981, paras 39-57. See also S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 56. 8 See, e.g., CRC Committee, Day of General Discussion on the Rights of All Children in the Context of International Migration, 2012, para. 68.

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[Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect]

or unaccompanied minors towards which there is no impediment to deportation under national law.9 2 The obligations incumbent on the States Parties as duty-bearers are not limited to the main territory of the States Parties, but apply to all territories in which the State effectively exercises its jurisdiction.10 This broad clause, according to which the Convention applies to all children under the State’s jurisdiction, was thoroughly debated in the travaux préparatoires. Whereas the first versions of the revised draft of Article 2 para. 1 CRC mentioned that the rights extended to all children in the territories of the States Parties (and/or subject to their jurisdiction), this formulation was finally changed. Any reference to territories was deleted and only the reference to jurisdiction was kept.11 The Convention’s non-discrimination principle’s jurisdiction in Article 2 para. 1 CRC excludes limiting the prohibition of discrimination only to children who hold the nationality or citizenship of the State Party or to those children situated lawfully on the territory of the State Party.12 The most important application of this extraterritorial effect is, however, the exercise of full or partial sovereignty through effective control over a non-party or a third-party State’s territory and its inhabitants, either as a result of military occupation or an invitation or where this effective control is tolerated by the responsible government.13 Yet, Article 2 para. 1 CRC extends the Convention’s applicability to all children within the jurisdiction of the State Party, thus expanding the Convention’s scope beyond the State’s borders to include any child who lives in an area where the State Party controls his or her life, for example in occupied territories. 14 Furthermore, the CRC Committee, with regard to international migration, underscores that the obligations of States Parties under the Convention apply to each child within their jurisdiction, including jurisdiction arising from a State exercising effective control at or outside its borders. These obligations shall not be arbitrarily and unilaterally curtailed either by excluding zones or areas from the territory of a State or by defining particular zones as not or only partly under the jurisdiction of the State, including in international waters or other transit zones (e.g., in international airports) where States put in place migration control mechanisms.15 9 CRC Committee, Day of General Discussion on the rights of all children in the context of international migration, 2012, para. 58. See also C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 71. 10 B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 127. 11 See Commission on Human Rights, Note verbale of the Polish People’s Republic, E/CN.4/1349, 1980, p. 2; Draft Convention adopted by the Working Group, E/CN.4/1988/WG.1/WP.1, 1987, p. 6; Report of the Working Group, E/CN.4/1989/48, 1989, paras 146-169. 12 See S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 55 et seq.; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 2.05. 13 See the similar assessment by ICJ, Advisory Opinion of 9 July 2004, ICJ Reports 2004, p. 136, paras 107-113 – Legal Consequence of the Construction of the Wall in the Occupied Palestinian Territories. With regards to the extraterritorial effects of the ECHR guarantees, see ECtHR, Judgment of 18 December 1996, No. 15318/89, para. 62 – Loizidou v. Turkey; Decision of 12 December 2001, No. 52207/99, para. 71 – Banković and Others v. Belgium and 16 Other Contracting States; Judgment of 8 July 2004, No. 48787/99, paras 387et seq. – Ilaşcu v. Moldova and Russia; Judgment of 7 July 2011, No. 55721/07, para. 138 – Al-Skeini and Others v. The United Kingdom. 14 With special regard to the extraterritorial application of the CRC see ICJ, Advisory Opinion of 9 July 2004, ICJ Reports 2004, p. 136, para. 113 – Legal Consequence of the Construction of the Wall in the Occupied Palestinian Territories. Further see CRC Committee, Concluding Observations: Israel, CRC/C/15/Add.195, 2002, para. 2; CRC/C/ISR/CO/2-4, 2013, para. 2. 15 See CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 12.

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[Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect]

Art. 2

In addition, the CRC Committee is particularly clearly positioned with regard to the 3 obligation of transnationally active companies to ensure children’s rights extraterritorially. In view of Article 32 CRC, for instance, the CRC Committee calls for an appropriate positive duty of the State to ensure the protection of children against exploitation by or with the help of transnational corporations and multinational enterprises, irrespective of any geographical boundaries.16 In addition, the CRC Committee requires all subjects of international law, i.e. States, international organisations and historical subjects of international law, to exercise their sovereignty worldwide in a manner that conforms to the rights of the child without being bound to a specific territory. For example, the CRC Committee reminds the Holy See that its commitment to the Convention refers not only to the territory of the Vatican State, but to the entire exercise of sovereignty by the Catholic Church in accordance with the Canon Law.17 The commitments entered into by the Contracting Parties under Article 2 para. 1 CRC relate to the adherence to the rights of the child as set forth in the Convention. Thus, they have to ensure the enjoyment of the rights in all places under their jurisdictions.18 The related verbs “respect” and “ensure”, as used in Article 2 para. 1 CRC, are not 4 synonymous, but rather serve to differentiate between negative and positive State obligations. In this way, the word “respect” indicates that States Parties are prohibited from unlawful interference into the liberty of the individual child, while “ensure” prompts the States Parties to positive action.19 On the one hand, the obligation to ensure consists of the duty to protect individuals against interference by third parties, which thus has an indirect horizontal effect. On the other hand, it contains an obligation to fulfil, which in turn incorporates a proactive duty of the State to facilitate the enjoyment of human rights and provide (economic, or other) services to ensure effective equal opportunities for all children to enjoy the rights under the Convention.20 The differentiation between the duty to respect and the duty to ensure is important since the results of both obligations are not identical. In the case of the States’ duty to respect, the defensive character of this prohibition leads to the (pre-) determined result not to interfere unlawfully or arbitrarily into the individual’s liberty, whereas in the case of a duty to undertake positive action the States Parties are left with a certain discretion and leeway. However, the means of how to implement these positive obligations are substantiated and concretised in Article 4 CRC.21 With regard to the obligation to ensure that children are not discriminated against, this positive duty can take place legally through the adoption of non-discrimination laws and statutes.22 In cases that these laws exist but are not effectively implemented because of socially internalised prejudices and resentments, 23 practical mainstreaming measures should be taken to prevent and combat discrimina16 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 40 et seq. See also → Article 32 mns. 13 et seq. 17 CRC Committee, Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, paras 8, 13 et seq. 18 H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2nd edn. 2012, p. 11. 19 P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 5. 20 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 40, 48. See also M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, p. 41-44, with regard to the similar provision of Article 2 para. 1 ICCPR. 21 Cf. S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 50. For more detail see → Article 4 mn. 11. 22 R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3 rd edn. 2007, p. 23. 23 As to prevalent prejudices in various societies see S Muscroft, Children’s Rights: Equal Rights, Diversity, Difference and the Issue of Discrimination, 2000, p. 34.

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[Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect]

tion that cannot only be eradicated through simply enacting laws and administrative regulations.24 This may require positive political, educational or other measures aimed at redressing a situation of real inequality.25

II. Prohibition of Discrimination (Article 2 para. 1 CRC) The prohibition of discrimination as enshrined in Article 2 CRC represents, alongside Articles 3, 6 and 12 CRC, a general principle of the Convention.26 The prohibition of discrimination is not identical with but a corollary of the principle of equality. The principles of equal treatment and non-discrimination are positive and negative expressions of the same standard and value.27 According to a common view, one is treated equally when one is not discriminated against, and one is discriminated against, when one is not treated equally.28 Both the different treatment of equals or of similar situations and the equal treatment of unequals or of different situations are prohibited provided that there is no objective and proportionate justification of the unfavourable treatment. 6 It would be wrong, though, to assume that all people are in any (actual) respects the same. Therefore, the application of the principle of equal treatment or the application of the principle of non-discrimination does not require full equality of results and identical treatment. It rather serves to ensure equality of opportunities which means that, when treating similar situations differently or different situations similarly, objectively justifiable reasons that are proportionate may be taken into account.29 The CRC Committee has stressed many times that the non-discrimination principle does not mean identical treatment in every instance.30 What is important, however, is that the children are given equality in the law and equality before the law.31 Although the Convention does not expressly recognise the child’s legal personality, it may be derived indirectly from Article 12 para. 2 CRC which guarantees the right of the child to participate in procedures and to be heard. Therefore, the participation rights of children, which increase in relation to their age and maturity, must always be considered when applying the principle of non-discrimination.32 To ensure that the prohibition of discrimination is actionable in practice, its scope must be clarified by designating those categories and status in which differential treatment is not permitted under Article 2 para. 1 CRC. 5

24 CRC Committee, Concluding Observations: Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, paras 29-30. See also S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 51. 25 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 40, 48. 26 This has been repeatedly stressed by the CRC Committee, see CRC Committee, General Guidelines for initial reports, CRC/C/5, 1991, para. 13; Overview of the reporting procedures, CRC/C/33, 1994, para. 5; General Guidelines for Periodic Reports, CRC/C/58, 1996, paras 25 et seq. Further see L Lundy/B Byrne, in: E Brems/E Desmet/W Vandenhole (eds.), Children’s Rights Law in the Global Human Rights Landscape: Isolation, Inspiration, Integration?, 2017, p. 52 et seq. 27 See A Bayefsky, The Principle of Equality and Non-Discrimination in International Law, Human Rights Law Journal 11 (1990), p. 1, at 1. 28 Cf. W McKean, Equality and Discrimination under International Law, 1983, p. 285. 29 See A Bayefsky, The Principle of Equality and Non-Discrimination in International Law, Human Rights Law Journal 11 (1990), p. 1, at 11 et seq.; S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 57, 60. 30 See, e.g., CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 12. 31 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 58. 32 P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 6. See also → Article 12 mn. 31.

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[Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect]

Art. 2

1. Necessity of a Ground-Specific Non-Discrimination Clause with Regard to Children All international human rights instruments contain provisions prohibiting discrimi- 7 nation based on a number of grounds. This is the case, for instance, on the universal level, with Article 2 UDHR, Article 2 para. 1 and Article 26 ICCPR, and Article 2 para. 2 ICESCR. General prohibitions of discrimination may also be found in all regional human rights treaties. Suffice to refer to Article 1 ACHR, Article 2 ACHPR and Article 14 ECHR as well as to Article 1 of Additional Protocol No. 12 to the ECHR. The EU Charter of Fundamental Rights dedicates even an entire chapter to equality and non-discrimination, starting with the general principle of equal treatment and the general prohibition of discrimination in Article 20 of the Charter. All these prohibitions of discrimination apply to every human being without any restriction, and thus also to children.33 However, in contrast to these general human rights conventions, which regularly provide for a symmetrical prohibition of discrimination, the CRC opts for an asymmetrical approach. For example, the Convention does not generally and symmetrically prohibits discrimination on the basis of age (which would include discrimination of elderly people), but quite deliberately only prohibits discrimination against children and adolescents, which may, of course, exist for a variety of reasons.34 With this asymmetrical prohibition of discrimination, the CRC stands in a similar line to the ICRPD, the ICERD and to CEDAW, all of which take into account the historical and persistent discrimination experiences of particular vulnerable groups, i.e. persons of different ethnic origin, persons with disabilities and persons of female sex and gender.35 These particular human rights treaties aim at combating various forms of ground-specific discrimination by granting non-discrimination rights.36 The principle of non-discrimination enshrined in general human rights law has been largely unable to effectively counter discrimination based on race, disability and (female) sex and gender. The same applies to children. This is partly due to these general human rights instruments’ misapplication and reservations, but also to their factual inadequacy to protect children against all kinds of child-specific discrimination due to societal resentments. 37 It is not without reason that the African Charter on the Rights and Welfare of the Child, as the regional counterpart of the CRC, also contains a ground-specific discrimination clause in Article 3 ACRWC which is modelled on Article 2 CRC. When one assesses which situations are alike and should therefore be treated equal- 8 ly (or vice versa: which are substantively different and should therefore be treated differently), it is important to determine what should be the criterion of comparison. 38 The general case is a comparison between children. For instance, girls should not be treated differently from boys at school or elsewhere. Discrimination between children based especially upon the sex, but also on religion or national or ethnic origin has a particularly strong effect on children, which justifies a special clause of protection 33 See CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 23; B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 7. 34 For more detail see → Article 2 mns. 9 et seq. 35 With a particular view to CEDAW see D König/S Schadendorf, Die Rezeption der UN-Frauenrechtskonvention in Karlsruhe und Straßburg, Die Öffentliche Verwaltung 2014, p. 853, at 854. 36 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 46. 37 See S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 47. 38 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 60.

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against discrimination.39 Discrimination has particularly damaging consequences when the victims cannot defend themselves adequately against it.40 Children, especially babies and young children,41 are in a highly vulnerable position with respect to State authorities but also in regards to their parents and other adult individuals, as they usually have to rely upon the assistance of adults for the realisation of their rights.42 In addition, children may be discriminated against because of actions that their parents, caregivers or guardians have engaged in, and, hence, in a way that is mediated through these persons.43 Children are also often at risk of being discriminated against because of the status of their parents or guardians (for instance: their parents’ migration status) or due to the treatment that their parents or guardians receive, for example, in cases where one parent is detained or imprisoned.44 In these cases, both Article 2 para. 1 and para. 2 CRC establish a particular form of the principle of non-discrimination, namely the prohibition of “mediated discrimination” which describes an indirect discrimination of the child through another (third) person. This form of discrimination is, in principle, alien to the anti-discrimination provisions of other general human rights conventions. The reason for this is quite obvious: unlike adults, children are often exposed to secondary violations of rights, since their standard of living depends on that enjoyed by their parents or carers.45 Beyond the CRC, such indirect and mediated discrimination is only recognised in European Union law. Thus, the CJEU in its consideration of the Employment Equality Directive46 acknowledged that the discrimination of an employee on grounds of her disabled child in fact constitutes discrimination, as the Directive covers not only persons with disabilities, but also discrimination on grounds of disability in the employment sector generally.47 9 Children are also sometimes unlawfully and arbitrarily discriminated against in respect to adults. This is demonstrated by the long denial of legal capacity to children and the limited possibilities of children to (procedurally) assert their own rights.48 The prohibition of discrimination on the simple grounds of being a child is enshrined neither universally nor at a regional level and it remains unrecognised by any human rights monitoring body different to the CRC Committee. The Inter-American Court of Human Rights, for instance, rather noted in its advisory opinion on children’s rights that differentiated treatment granted to adults and to minors is not discriminatory per se. 49 Therefore, the principle of non-discrimination has clearly been at work in the gradual recognition of children’s rights as such and it was one of the starting points for the

39 S Besson, The Principle of Non-Discrimination in the Convention on the Rights of the Child, International Journal of Children’s Rights 13 (2005), p. 433, at 443. 40 A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 56, at 63. 41 See CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev. 1, 2005, para. 11. 42 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev. 1, 2005, para. 11. 43 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 48. 44 See → Article 3 mns. 9, 17 and → Article 2 mn. 39. Further see CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 53. 45 R Smith, International Human Rights Law, 9th edn. 2020, p. 226. 46 Directive 2000/78/EC, OJ EU 2000, No. L 303, p. 16. 47 CJEU, Judgment of 17 July 2008, Case C-303/06, ECLI:EU:C:2008:415, para. 38 – Coleman. 48 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 48. 49 IACtHR, Advisory Opinion OC-17/02 (2002), Series A No. 17, para. 55 – Juridical Condition and Human Rights of the Child.

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CRC.50 The Convention also recognises the specificity of the child’s situation and thus points out the difference between adults and children. However, a great achievement of the Convention is the recognition that children are genuine rights-holders and that they are not always in a different position than adults.51 Besides the CRC, only the CoE Committee of Ministers has so far adopted guidelines on child-friendly justice in November 2010, which serves to strengthen the substantial and procedural rights of the child as a rights-holder.52 These guidelines are intended to assist European governments in the improvement of children’s access to justice and the justice system’s child-friendly treatment of children. They also provide practical assistance for all types of court and alternative, out-of-court procedures and their consequences.53 Similar to the Council of Europe, the CRC Committee increasingly ensures that those domestic criminal offences which are typically committed by children, such as absenteeism from school, are abolished. It further demands from the State Parties to set a minimum age for criminal responsibility and to observe the principle of equality also in respect of children.54 Children are often victims of multiple and intersectional discrimination, for instance, 10 if they encounter discrimination firstly as children and then simultaneously as members of a particular sex. In this context, the CRC Committee brings particular attention to the serious discrimination of girls who are not treated in many countries in the same favourable way as boys.55 In some countries, there is even grave disrespect of the principle of non-discrimination by selective abortions, genital mutilation and a general neglect of girls.56 In addition, girls are often subject to excessive involvement in housework to an extent that they are deprived of educational opportunities. Forced marriages, so-called “honour killings”, rape, and other forms of violence affect girls in particular.57 Against this backdrop, the CRC Committee expresses itself very critically, for example, on the massive discrimination of girls in the Rwandan and the Indian society. Tradition and cultural influences in these two countries lead to the preference of boys and to selective abortions, child-killing of girls and a large number of abandoned girls.58 Also, children born as a result of rape during genocide often experience double or multiple discriminations throughout their lives.59 Homosexual adolescents may also experience multiple discriminations. For instance, different age limits for the ability to give consent in heterosexual relationships on the one hand, and on homosexual relationships on the other hand, often result in the penalisation of homosexual adolescents and

50 J Tobin, Justifying Children’s Rights, International Journal of Children’s Rights 21 (2013), p. 395, at 396 et seq. 51 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 60. 52 See Council of Europe, Guidelines on child-friendly justice, adopted by the Committee of Ministers on 17 November 2010, 1098th Meeting, Annex 6. 53 See the Press Release of the Council of Europe, No. 865 (2010). For further European programmes in the field of children’s rights see E Moreno, in: T Kleinsorge (ed.), Council of Europe, 2010, p. 195, at 196 et seq. 54 For more detail see → Article 40 mns. 26 et seq. 55 See, e.g., CRC Committee, Concluding Observations: Costa Rica, CRC/C/CRI/CO/5-6, 2020, para. 16. See also N Taefi, The Synthesis of Age and Gender: Intersectionality, International Human Rights Law and Marginalisation of the Girl-Child, International Journal of Children’s Rights 17 (2009), p. 345 et seq. 56 CRC Committee, Concluding Observations: Guinea Bissau, CRC/C/GNB/CO/2-4, 2013, para. 24. 57 See CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev. 1, 2005, para. 11; CEDAW Committee/CRC Committee, General Comments No. 31 and No. 18, CEDAW/C/GC/31-CRC/C/GC/18, 2014, paras 16 et seq. See also → Article 24 mn. 26. 58 CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, paras 21 et seq.; India, CRC/C/IND/CO/3-4, 2014, paras 33 et seq. 59 CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 21.

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represent a case of multiple discrimination under the CRC.60 In order to counter the double jeopardy situation of children with disabilities to become a victim of multiple discriminations, due to being a child and also having a disability, the CRC Committee stresses the need to apply all CRC standards for the benefit of and with special regard to children with disabilities.61 Likewise, in the context of international migration, children may be in a situation of double or multiple vulnerabilities as children and as children affected by migration who are migrants themselves, were born to migrant parents in countries of destination or remain in their countries of origin while one or both parents have migrated to another country.62 In accordance with the statement by the CESCR Committee on the duties of States towards refugees and migrants of 2017, 63 both the CMW Committee and the CRC Committee recall that protection from discrimination should not be made conditional upon an individual having a regular status in the host country and that, in particular, all children within a State, including those with undocumented status, should not be discriminated against with regard to receive education and access to adequate food and affordable health care.64 Finally, multiple and intersecting forms of discrimination are generally overrepresented among children in street situations.65 11 The phenomena of multiple, intersectional and mediated discrimination are not sufficiently covered by the anti-discrimination provisions of the existing general human rights conventions. Article 24 para. 1 ICCPR contains a specific prohibition of discrimination, according to which every child, without discrimination, has the right to such measures of protection from his or her family, the society and the State, as required by the child’s legal position as a minor. However, this provision relates essentially only to the discrimination between children. Article 24 para. 1 ICCPR does not regulate the possible discrimination of children in relation to adults, nor does it address discrimination of the parents, from which the child might indirectly suffer in the form of a “mediated discrimination”. Likewise, the provisions of Article 6 and Article 7 ICRPD, which declare women and children with disabilities as particularly vulnerable subgroups, fail to sufficiently take these additional aspects into account.66 Yet, in recent years, an increasing awareness with regard to multiple and intersectional discrimination can be observed in practice. For example, in 2006, the Human Rights Committee rightly deemed the day-long detention of an aboriginal adolescent with mental disabilities in an isolation cell with exposure to artificial light for prolonged periods, without blankets and with insufficient clothing, as a serious breach of Article 10 in conjunction with Article 24 para. 1 ICCPR.67 The CoE Guidelines on child-friendly justice also draw particular attention to the issue of multiple discriminations.68 With regard to European Union law, the CJEU G Van Bueren, The International Law on the Rights of the Child, 1995, p. 39 et seq. CRC Committee, General Comment No. 9, CRC/C/GC/9, 2007, paras 5, 29 et seq.; Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, paras 23 et seq. See also → Article 23 mn. 2; → Article 24 mn. 3. 62 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 3. 63 CESCR Committee, E.C.12/2017/1, 13 May 2017. 64 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 6 a. 65 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 26. 66 See S Schmahl, Menschen mit Behinderungen im Spiegel des internationalen Menschenrechtsschutzes, Archiv des Völkerrechts 45 (2007), p. 517, at 530. 67 Human Rights Committee, Corey Brough v. Australia, Views adopted on 27 April 2006, CCPR/C/86/D/1184/2003, paras 9.1.-9.5. 68 See Council of Europe, Committee of Ministers, Guidelines on child-friendly justice, 1098 th Meeting, 17 November 2010, Annex 6, Preamble. 60

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has considered multiple discriminations on grounds of sex, age and ethnic origin.69 However, it is to bear in mind that, in the case of multiple discrimination, the scope of application of the prohibition of discrimination and the possible justifications can differ, depending on the status of the child and the individual situation. This raises difficult dogmatic problems of establishing precise demarcation lines between the various forms of discrimination, which are not always resolved by the simple recognition of the existence of multiple or intersectional discriminations.70 Therefore, the CRC Committee reminds States Parties that guaranteeing the right to non-discrimination is not only a passive obligation to prohibit all forms of discrimination, but also requires appropriate proactive political, educational or other measures to ensure equal opportunities for all children to enjoy the rights under the Convention. Systemic discrimination is responsive to, and can be addressed by, legal and political change.71 Sufficient attention in that regard should be given to children in street situations as a group who have suffered persistent prejudice in multiple situations.72

2. Prohibition of Discrimination as a Non-Autonomous Provision Article 2 para. 1 CRC does not contain an autonomous prohibition of discrimination, 12 but rather an accessory or subordinate prohibition of discrimination. Article 2 para. 1 CRC applies to every child and is applicable with reference to all rights and freedoms set forth in the CRC. This umbrella character has been clarified by various reports and statements of the CRC Committee.73 At the same time, this means that Article 2 para. 1 CRC is a non-autonomous provision of the Convention, and it may, therefore, only be invoked in relation to the implementation of a right protected by the Convention itself.74 In other words, the principle of non-discrimination is applied exclusively to ensure the rights as guaranteed by the Convention.75 It has no independent existence, yet it qualifies all of the other substantive CRC provisions as if it were part of each one.76 However, for this prerequisite of accessoriness and interdependence between the principle of non-discrimination and the rights set forth in the Convention, it is sufficient that the material scope of the relevant right is affected. The evidence of a factual interference with the right is not mandatory. On the other hand, as a consequence of its subordinate and derivative role, the review of State behaviour based on Article 2 para. 1 CRC is excluded in substantive areas not falling within the scope of the Convention. To this extent, the prohibition of discrimination mirrors the provisions of Article 2 para. 1 ICCPR, Article 2 para. 2 ICESCR and Article 14 ECHR and is to be differentiated from the comprehensive, autonomous prohibitions of discrimination in Article 26 ICCPR and Article 1 of Additional Protocol No. 12 to the ECHR.77 But like all of these prohibitions CJEU, Judgment of 19 April 2012, C-415/10, ECLI:EU:C:2012:217, para. 32 et seq. – Meister. S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, Vol. 2, 2nd edn. 2021, § 19 mn. 155. 71 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 26. 72 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 27. 73 See, e.g., CRC Committee, Concluding Observations: Nepal, CRC/C/15/Add.261, 2005, para. 35; Romania, CRC/C/15/Add.199, 2003, para. 54. 74 W Vandenhole, Non-discrimination and equality in the view of the UN Human Rights Treaty Bodies, 2005, p. 32. 75 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 40; see also S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 48-49, 53. 76 W Vandenhole, Non-discrimination and equality in the view of the UN Human Rights Treaty Bodies, 2005, p. 32 et seq. 77 See R Uerpmann-Wittzack, in: D Ehlers (ed.), Europäische Grundrechte und Grundfreiheiten, 4th edn. 2015, § 3 mn. 67. 69

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of discrimination, Article 2 para. 1 CRC is a justiciable clause that may be invoked by victims of discrimination directly before domestic authorities and courts. 78 Thereby, it is irrelevant whether the discrimination occurs in the ambit of a civil right or in such of an economic, social and cultural right. Article 2 para. 1 CRC is, in principle, not subject to the progressive realisation principle of Article 4 CRC.79 The CRC Committee states that the application of Article 2 para. 1 CRC cannot be made dependent upon budgetary resources and even requires the implementation of the principle of non-discrimination of children to be an important element of budget-making at the national level.80

3. Definition of Discrimination Any discrimination on one or more of the grounds listed in Article 2 para. 1 CRC, whether it is overt, covert or hidden, represents an attack on the human dignity of the child and is capable of impairing or destroying the child’s ability to benefit from all educational and development opportunities.81 All children must, therefore, be uniformly granted all rights guaranteed in the Convention without regard to the features, grounds and status enumerated in Article 2 para. 1 CRC. 14 The Convention does not define the term “discrimination”. However, with a view to other human rights treaties, for instance Article 2 para. 1 ICCPR and Article 2 para. 1 ICRPD, the following definition can be ascertained analogously: Discrimination within the meaning of Article 2 para. 1 CRC means any distinction, exclusion, restriction or preference based on any ground or status listed in the provision, which has the purpose or effect of frustrating, nullifying or impairing the recognition, enjoyment or exercise, by all persons on an equal footing, of human rights and fundamental freedoms in a political, economic, social or cultural field or any other field of public life.82 Against this background, discrimination within the meaning of Article 2 para.1 CRC comprises four constitutive elements:83 13

(1) unequal treatment of equals or equal treatment of unequals; (2) the absence of legitimate and reasonable justification grounds for this unfavourable treatment between the groups in consideration; (3) a lack of proportionality; and (4) a connection to the proscribed differentiation criteria or prohibited grounds. 84 Article 2 para. 1 CRC does not understand the non-discrimination principle in an absolute way. The work of the CRC Committee indicates the construction of Article 2 para. 1 CRC as differential treatment in similar cases without an objective and reasonable 78 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 69; S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 49. 79 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 67-68. 80 CRC Committee, Concluding Observations: Bolivia, CRC/C/15/Add.1, 1993, para. 14; France, CRC/C/15/Add.20, 1994, para. 19. Further see R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 23. 81 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 10. 82 See CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 12, with special reference to Human Rights Committee, General Comment No. 18: Non-discrimination, HRI/GEN/1/Rev.9 (Vol. I), 1989, p. 195, para. 7. 83 For more detail see → Article 2 mns. 15 et seq. 84 See CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 21. This statement of the CRC Committee is in contrast to B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 55 et seq., who wrongly understands the prohibition of discrimination as an absolute right.

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justification. Like all other human rights treaties, also the CRC only prohibits differences in treatment on grounds that are arbitrary and objectively unjustifiable.85 15 Specifically, this means the following: (1) When considering the relevant comparison groups, the prohibited differentiation grounds, as listed in Article 2 para. 1 CRC, cannot be used to qualify a factual circumstance as equal or unequal. Permitted, however, is a comparison between children (or groups of children) and between children and adults. Furthermore, the Convention does not outlaw differentiation between children on the grounds of age and maturity. This means that different treatment of younger and older children that only derives from their age is not forbidden by Article 2 para. 1 CRC per se.86 (2) Not each instance of unequal treatment of similar situations constitutes unlawful discrimination. Legitimate and objective reasons, which, of course, may not include the proscribed grounds of differentiation listed in Article 2 para. 1 CRC, can justify the different treatment of similar situations. The CRC Committee has explained that not every differentiation in treatment will constitute discrimination. It is only when these differences of treatment are unreasonable and lack of objective justification that they may be deemed discriminatory.87 (3) The notion of a reasonable and objective justification entails two elements.88 First, the difference of treatment must pursue a legitimate aim which is, for instance, not the case when the grounds of justification are selected arbitrarily. Second, the grounds of justification must correspond to the best interests and the respect for the human dignity of the child (see Article 3 CRC). The measures to achieve the legitimate aim must be proportionate, i.e. they must evidence an appropriate balancing of all relevant circumstances in the case at hand.89 Although the CRC Committee does not always apply the proportionality test, it emphasises that special measures should be taken whenever necessary.90 (4) Finally, the measure must concern at least one of the proscribed differentiation grounds. In this regard, there are two conceivable variants that are both covered by the prohibition of discrimination in Article 2 para. 1 CRC. On the one hand, a certain feature can be the intentional motive for a discriminatory measure (direct discrimination), regardless of whether this motive is objectively and evidently recognisable (open discrimination) or if it is hidden, covered or disguised (hidden discrimination). Secondly, it is possible that a legally indiscriminate regulation has the actual effect of discriminating against a particular protected group (indirect discrimination). This latter form does not depend upon whether this effect was intended or whether it is an unintentional side effect.91 85 CRC Committee, Concluding Observations: Belgium, CRC/C/15/Add.178, 2002, para. 6. See also W Vandenhole, Non-discrimination and equality in the view of the UN Human Rights Treaty Bodies, 2005, p. 30 et seq. 86 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 140. 87 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 21. 88 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 63 et seq. 89 For a detailed analysis of the proportionality test in anti-discrimination law see S Besson, Evolutions in Anti-Discrimination Law within the ECHR and the ESC Systems, American Journal of Comparative Law 60 (2012), p. 147 et seq. 90 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 30; United Kingdom, CRC/C/GBR/CO/4, 2008, para. 25. 91 See P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 6; A Bayefsky, The Principle of Equality and Non-Discrimination in International Law, Human Rights Law Journal 11 (1990), p. 1, at 8-10. Different assessment by B

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Applying these criteria to a practical example, results in the following: The CRC Committee rightly underlines that any differential treatment of migrants shall be lawful and proportionate, in pursuit of a legitimate aim and in line with the child’s best interests and international human rights norms and standards.92 It is, however, not convincing that the CRC Committee also urges the States Parties to ensure that migrant children should always be offered access to services in a formally equal manner with nationals.93 Here, the CRC Committee not only leaves the mandate conferred on it by the Convention by establishing absolute protection against discrimination and formal equal treatment with nationals for migrant children. Its statements on the matter are also not consistent with the ruling of other international human rights monitoring bodies.94 17 The controversial question as to what extent de facto (factual) discrimination, as different from de jure (legal) discrimination, should be combatted, and to what extent positive action on the basis of the State’s duty to ensure or fulfil is required to eradicate discrimination, is relatively easy to answer in relation to the CRC. Similar to Article 5 para. 4, read in conjunction with Article 4 ICRPD,95 the prohibition of discrimination in Article 2 para. 1 CRC includes not only a negative obligation of the States Parties not to discriminate children for their status, but also contains a positive dimension to prompt special measures or actions in favour of children. The States Parties are obliged to actively combat any discrimination on the grounds listed in Article 2 para. 1 CRC,96 for example, by enacting appropriate laws that prohibit discrimination in horizontal relationships between private persons. In implementing the Convention, States Parties are generally obligated to actively seek the abolition of any form of discrimination against children that exists in their laws and policies and to promote substantive de facto equality for all children.97 18 In this context, it is also advisable to conduct studies in order to investigate the causes of discrimination and to set up education campaigns to raise awareness of discrimination against children in society (so-called non-discriminatory affirmative action). An example of these positive obligations is demonstrated in measures of so-called “reverse discrimination”, which, in deviation from a formal prohibition of discrimination, aim to especially protect or privilege certain groups of children (perhaps with the help of quotas for access to education) in order to establish a de facto equality. Such measures of positive discrimination are permitted under the Convention98 and are increasingly underscored by the CRC Committee,99 even though they are not explicitly required, 16

Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 67 et seq. 92 CMW Committee and CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 22. 93 CMW Committee and CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 22. 94 See the references mentioned by V Chetail, International Migration Law, 2019, p. 155-156. 95 See S Schmahl, Menschen mit Behinderungen im Spiegel des internationalen Menschenrechtsschutzes, Archiv des Völkerrechts 45 (2007), p. 517, at 529. 96 B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 80; P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at p. 6. 97 See N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 141; A Bayefsky, The Principle of Equality and Non-Discrimination in International Law, Human Rights Law Journal 11 (1990), p. 1, at 24-33. 98 See S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 65. Disagreeing: B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 74 et seq. 99 See, e.g., CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 27; Concluding Observations: Austria, CRC/C/AUT/CO/5-6, 2020, para. 17.

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since the Convention operates no particular and independent anti-discrimination policy.100 By these means, for instance, indigenous children are included in those children groups who require specific positive measures in order to equally enjoy their rights as other children.101 There are a disproportionately high number of indigenous children living in extreme poverty, which has negative consequences for their survival and development.102 Also, Roma children are often marginalised and discriminated against in schools and health care systems in various countries, which is why promotion, inclusion or mainstreaming strategies in favour of this group of children should be undertaken.103 Yet, any kind of “affirmative action” or mainstreaming strategy has also its downsides 19 and pitfalls. In individual cases, special promotional or inclusive measures can lead to a situation where the root causes, upon which the special measures taken are legitimised, solidify as inherited grounds for discrimination. This is especially true when positive measures are applied to children, as these differences might have a particularly strong and stigmatising effect upon them.104 In addition, it must be considered that selective steering and promotion of certain groups of children can have long-term and significant impacts on their future lives. Therefore, such measures must be examined at certain time intervals to ensure adequacy and effectiveness. Also, the principle of proportionality requires that any affirmative action is only permitted over a limited period of time. Positive measures should be terminated when the actual inequality is eliminated.105 A modern approach would be to work in a more integrated fashion. Such approaches are recognised in the ICRPD which places special emphasis on “social inclusion” and accordingly calls for inclusive education instead of segregating children with disabilities in special schools (see Article 24 ICRPD). The CRC Committee endorses this view with regard to the rights of children with disabilities as enshrined in Article 23 CRC.106 This so-called “diversity approach” not only benefits children with disabilities, but also tends to positively affect the society as a whole.107

4. Right-Holders and Grounds of Discrimination The enumerated 11 suspect characteristics, grounds and status in Article 2 para. 1 20 CRC do not constitute an exhaustive list.108 The list is purely exemplary and can be extended to other grounds as apparent from the wording “other status” in Article 2 para. 1 CRC.109 The CRC Committee has identified numerous grounds of discrimination based on “other status” of the child. Included within these statuses are, for instance, 100 See S Besson, The Principle of Non-Discrimination in the Convention on the Rights of the Child, International Journal of Children’s Rights 13 (2005), p. 433, at 452. 101 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 8; General Comment No. 11, CRC/C/GC/11, 2009, para. 25. See also → Article 2 mn. 31. 102 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 34. 103 See → Article 2 mn. 31. 104 See B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 84; L Hitch, Non-Discrimination and the Rights of the Child, Article 2, New York University Law School Journal of Human Rights 7 (1989), p. 47, at 54. 105 CRC Committee, Concluding Observations: India, CRC/C/15/Add.228, 2004, paras 31-32. See also S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, Vol. 2, 2nd edn. 2021, § 19 mn. 87. 106 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 66. See also → Article 23 mn. 8. 107 H Bielefeldt, Zum Innovationspotential der UN-Behindertenrechtskonvention, 2006, p. 15. 108 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 75; N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 140. 109 See S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 53; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 2.14.

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discriminations on grounds of sexual orientation, non-marital circumstances, gender identity and HIV/AIDS infection.110 The CRC Committee does not put the various grounds of discrimination into a normative hierarchy; they are all equally important.111 The “racial” discrimination feature expressly proscribed in Article 2 para. 1 CRC acts as a generic term for a range of discrimination on similar grounds, e.g., skin colour or ethnic origin, which are also listed separately in Article 2 para. 1 CRC. In any case, the term “race” is difficult to use. Seen from a biological perspective, there are no different human races.112 The retention of the term “race” in all human rights conventions, including the CRC, is not to be understood in a biologizing sense, but is based solely on the intention to grasp all forms of racism and to effectively combat their underlying pseudo-scientific theories.113 This also includes the fight against “racial profiling”, according to which persons are subjected to police control solely on the basis of phenotypic characteristics. 114 In addition, until the adoption of the ICRPD in 2006, the express inclusion of the condition of disability was a novelty in the system of human rights protection.115 Today, this ground of discrimination is found in Article 21 of the EU Charter of Fundamental Rights, which additionally includes other grounds such as “genetic characteristics”, “age” and “sexual orientation”.116 Finally, it is unique in human rights law that the discrimination grounds referred to in Article 2 para. 1 CRC must not necessarily relate to the child. Rather, the scope of the non-discrimination principle also covers the parents, legal guardians or family members of the child. Article 2 para. 1 CRC protects the child not only from discrimination on grounds of his or her personal status, but also from discrimination linked to characteristics and status of third persons closely associated with the child (“mediated discrimination”). Because of the special dependence of children upon their parents and guardians, they are particularly at risk of becoming indirect victims of discrimination.117 a) Birth 21

The prohibition of discrimination on grounds of birth is primarily aimed at the elimination of privileges inherited at birth, i.e. the abolition of class distinctions and of casteand descent-based discrimination.118 However, it is doubtful whether the disadvantages of children born outside of marriage are also covered by Article 2 para. 1 CRC under the 110 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 7-9; General Comment No. 4, CRC/GC/2003/4, 2003, para. 6; General Comment No. 20, CRC/C/GC/20, 2016, para. 21. Further see S Besson, The Principle of Non-Discrimination in the Convention on the Rights of the Child, International Journal of Children’s Rights 13 (2005), p. 433, at 448 et seq.; R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 24 et seq. 111 Similarly, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 2.15. 112 See D Angst, in: D Angst/E Lantschner (eds.), ICERD, Handkommentar, 2020, Einführung: Zur Verwendung des Begriffs Rasse, p. 27 et seq.; A Streibel, Rassendiskriminierung als Eingriff in das allgemeine Persönlichkeitsrecht, 2010, p. 17 et seq. 113 See CERD Committee, CERD/C/SR.915, 12 September 1991, para. 3. For a fuller account see P Thornberry, The International Convention on the Elimination of all Forms of Racial Discrimination. A Commentary, 2016, p. 87 et seq. 114 For more detail see H Cremer, „Racial Profiling“, 2013, p. 9 et seq.; D Liebscher, „Racial Profiling“ im Lichte des verfassungsrechtlichen Diskriminierungsverbots, Neue Juristische Wochenschrift 2016, p. 2779 et seq. 115 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2007, para. 8. 116 For more detail see S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, Vol. 2, 2 nd edn. 2021, § 19 mns. 24, 157 et seq. 117 See → Article 2 mn. 38. 118 For a fuller account, also with regard to the work of the CRC Committee in combating discrimination on the grounds of caste, see PE Veerman, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 513, at 519 et seq.

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topic of “birth”. The original draft of the Convention did explicitly state that birth, as a discriminatory ground, also relates to non-marital birth.119 During the negotiations, Article 2 para. 1 CRC was however adapted to the existing non-discrimination clauses in other human rights instruments with the result that the explicit inclusion of the feature of non-marital birth was withdrawn. An explicit provision protecting children born out of wedlock failed to find consensus in the late 1980 s.120 In contrast, today there is an agreement that the prohibition of discrimination of non-marital children falls within the concept of “other status” of Article 2 para. 1 CRC.121 The Human Rights Committee finds that different treatment of marital and non-marital children constitutes prohibited discrimination under Article 24 ICCPR.122 The African Court on Human and Peoples’ Rights observes that the law applicable in Mali, according to which children born out of wedlock do not have the right to inheritance and that they may be accorded inheritance only if their parents so wish, is not in conformity with the African Charter on the Rights and Welfare of the Child and other human rights instruments.123 The CRC Committee has explicitly subscribed to this view.124 It was, for instance, concerned that both de jure and de facto discrimination of children born out of wedlock exist in Oman.125 The CRC Committee also raised concerns about persistent discrimination against various groups of children in Iraq, including children born out of wedlock.126 With regard to Japan, the CRC Committee expressed concerns that in spite of several legislative measures, children born out of wedlock still do not enjoy the same rights as children born in marriage under the laws governing inter-State succession.127 This ground of discrimination can also be derived from other international and regional human rights guarantees against discrimination. For instance, the grant of a survivor’s pension to widows, but not to the unmarried surviving partner, when the unmarried surviving partner has children with the deceased, represents a case of indirect discrimination against non-marital children under Article 24 ICCPR.128 The ECtHR has also dealt with numerous cases of discrimination between marital and non-marital children. According to its view, only very weighty reasons can justify a difference of treatment between children born in or out of wedlock, e.g., in relation to the statutory right of inheritance. Any other distinction made between marital children and children born out of wedlock violates Article 8, read 119 See Article 4 of the Revised Polish Draft, in: Commission on Human Rights, Note verbale of the Polish People's Republic, E/CN.4/1349, 10 October 1979. See also Commission on Human Rights, Report of the Working Group, E/CN.4/1324, 27 December 1978, p. 10, para. 2; E/CN.4/1986/39, 13 March 1986, paras 13-21; E/CN.4/1988/28, 1988, p. 10, para. 2 and p. 27. 120 See Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 6 April 1988, paras 226-230; see also HR/1995/Ser.1/Article 2, p. 12, 21 et seq. 121 See P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 6; A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 56, at 63. 122 Human Rights Committee, General Comment No. 17: Rights of the child, HRI/GEN/1/Rev. 9 (Vol. I), 1989, p. 193, para. 5. 123 ACtHPR, Judgment of 11 May 2018, No. 046/2016, paras 96-115 – Association pour le progress et la défense des droit des femmes maliennes and The Institute for Human Rights and Development in Africa v. Republic of Mali, reprinted in: Human Rights Law Journal 2018, 38 et seq. 124 See, e. g., CRC Committee, Concluding Observations: Philippines, CRC/C/PHL/CO/3-4, 2009, paras 29 et seq.; Maldives, CRC/C/MDV/CO/3, 2007, para. 33; Holy See, CRC/C/VAT/CO/2, 2014, para. 26; Tonga, CRC/C/TON/CO/1, 2019, paras 21-22. See also O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 168 et seq. 125 CRC Committee, Concluding Observations: Oman, CRC/C/OMN/CO/3-4, 2016, para. 25. 126 CRC Committee, Concluding Observations: Iraq, CRC/C/IRQ/CO/2-4, 2015, para. 19. 127 CRC Committee, Concluding Observations: Japan, CRC/C/JPN/CO/3, 2010, para. 33; CRC/C/JPN/CO/4-5, 2019, para. 17. 128 Human Rights Committee, Derksen at Bakker v. Netherlands, Views adopted on 1 April 2004, CCPR/C/80/D/976/2001, para. 9.3.

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in conjunction with Article 14 ECHR.129 Accordingly, refusal to grant citizenship to a child born out of wedlock constitutes a violation of the guarantees enshrined in the ECHR.130 b) National Origin 22

At first glance, it might be clear that the child’s nationality is to be understood under the concept of national origin, especially when compared to the proscribed differentiation criteria of ethnic origin.131 However, Article 2 para. 1 CRC does not expressly focus upon the legal relationship between a child and the State, but attaches rather to the mere factual relationship. The term “national origin” could, therefore, be understood as merely relating to the country of birth and not necessarily to nationality or citizenship.132 The Federal Republic of Germany, for instance, when ratifying the CRC, expressly assumed that “national origin” did not mean “nationality”, because a difference in treatment between children of domestic and foreign nationality seemed to be unavoidable with regard to the granting of entry or residence.133 This view expressed by the German Government at the time of ratifying the CRC contradicted the wording of Article 2 para. 1 CRC, according to which the rights of the Convention apply equally to all children within the jurisdiction of a State Party.134 At least, the CRC Committee regularly recalled, and continues to recall, that the non-discrimination principle of Article 2 para. 1 CRC obliges the States Parties to respect and ensure the rights set forth in the Convention to all children, whether they are considered migrants in regular or irregular situations, asylum seekers, refugees, or stateless children and irrespective of the child’s or the parents’ or legal guardian’s nationality, migration status or statelessness.135 In any case, States should ensure that all children in the context of international migration are treated first and foremost as children and not as migrants or foreigners. 136 The CRC Committee repeatedly underlines that the principle of non-discrimination is fundamental and, in all its facets, applies with respect to all children involved in or affected by international migration, regardless of any status or any reason for moving or settlement.137 Against this background, it is no coincidence that the Federal Government of Germany has withdrawn its unilateral declaration, which was qualified as a “reservation concerning foreigners”, with effect from 1 November 2010.138 Any differentiation 129 ECtHR, Judgment of 13 June 1979, No. 6833/74, paras 31 et seq. – Marckx v. Belgium; Judgment of 28 May 2009, No. 3545/04, para 40 et seq. – Brauer v. Germany; Judgment of 7 February 2013, No. 16574/08, para. 59 – Fabris v. France; Judgment of 23 March 2017, Nos. 59752/13 and 66277/13, paras 58, 72 et seq. – Wolter and Sarfert v. Germany. 130 ECtHR, Judgment of 11 October 2011, No. 53124/09, paras 43 et seq. – Genovese v. Malta. 131 See → Article 2 mn. 31. 132 See I Baer, Übereinkommen der Vereinten Nationen über die Rechte des Kindes, Neue Juristische Wochenschrift 1993, p. 2209, at 2211; R Bethke, Das Übereinkommen der Vereinten Nationen über die Rechte des Kindes und seine Umsetzung in der Bundesrepublik Deutschland, 1996, p. 58. 133 See Circular of the German Federal Parliament (Bundestags-Drucksache) No. 12/42, p. 34. 134 See → Article 2 mn. 2. 135 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 12; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 9. See also CRC Committee, Concluding Observations: Bahrain, CRC/C/BHR/CO/4-6, 2019, paras 16, 21. 136 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 11. 137 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 21. See also CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 18. 138 See → Articles 46-54 mn. 13.

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between children based on nationality requires at least convincing arguments.139 Even if “national origin” under Article 2 para. 1 CRC was to cover factual relationships only, foreign children would have to be granted anti-discrimination protection under the ground of “other status”.140 c) Sex The term “sex” refers to both the biological and sociological gender of the child, i.e. 23 the belonging to the male or female sex, or to third gender identities. Discrimination by sex is the most widespread form of discrimination in children. In many parts of the world, girls are particularly regarded as inferior and are more often victims of abuse, violence and neglect, due to traditional patriarchal systems of society.141 The brutal rape of a young Indian woman in Delhi in December 2012 provides an indication that in India, for example, violence against women and girls continues to be high upon the agenda.142 Recent statistics even show that rape of girls in India has increased by 902 per cent (!) over the past 40 years.143 Also in Sri Lanka, there is a lack of effective investigation of girls’ rape, and the victimisation is often aggravated by the fact that the society of Sri Lanka considers raped girls as “polluted” since their virginity was lost before they were married.144 The prohibition of discrimination on grounds of sex prohibits the States Parties 24 to determine different legal ages for girls and boys.145 In this context, it is especially important to consider that in many countries girls can, in contrast to boys, attain legal age upon marriage.146 These national rules are unacceptable in view of the flexibility clause of Article 1 CRC, since they result in girls falling outside the scope of the Convention earlier than boys of the same age.147 One of the main disadvantages of early marriage for girls lies in the fact that in some countries girls are denied their right to education (see Article 28 CRC) upon marriage. This represents one reason why illiteracy among girls is more common worldwide than in boys.148 Also, the low marriage age for girls promotes the (premature) motherhood of girls, which in turn increases health risks for the (premature) mother and the child.149 Therefore, the CRC Committee is increasingly opposed to the marriageable capability of persons under

139 S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung, Recht der Jugend und des Bildungswesens 2014, p. 125, at 136. The decision of the Higher Administrative Court of North Rhine-Westphalia of 22 May 2012, 5 A 609/11.A, paras 18 et seq., is therefore doubtful. 140 See → Article 2 mn. 32. 141 See CRC Committee, Report on the eighth session: General Discussion on the girl child, CRC/C/38, 1995, p. 47 et seq., para. 286. See also CRC Committee, Concluding Observations: Costa Rica, CRC/C/CRI/CO/5-6, 2020, para. 16. 142 See C Hein, Indiens missachtete Töchter, Frankfurter Allgemeine Zeitung, 29 December 2012, p. 1. 143 See J Gathia/S Gathia, Children’s Rights and Wellbeing in India, 2015, p. 630 et seq. 144 See, for instance, Human Rights Committee, X v. Sri Lanka, Views adopted on 27 July 2017, CCPR/C/120/D/2256/2013, paras 7.5 and 7.6. 145 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 40. 146 See, e.g., Pakistan: women 16 years and older; Afghanistan: women 16 years and older; Iran: women 13 years and older. 147 See CRC Committee, Report on the eighth session: General Discussion on the girl child, CRC/C/38, 1995, p. 47 et seq., para. 294. See also CRC Committee, Concluding Observations: Bolivia, CRC/C/15/ Add.1, 1993, para. 9. See also → Article 1 mn. 4. 148 V Muntarbhorn, The Convention on the Rights of the Child: reaching the unreached?, Bulletin of Human Rights 91 (1992), p. 66, at 68. 149 See M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6, p. 33.

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the age of 18.150 Furthermore, the CRC Committee pays particular attention to the discriminatory tasks and roles of girls within the family. There are still jurisdictions where, due to persistent patriarchal attitudes and prevalent gender stereotypes, girls face serious discrimination.151 For example, the CRC Committee expressed concerns about the patriarchal culture and discriminatory inheritance rules in Kuwait.152 In the case of Senegal, the CRC Committee was concerned about the insufficient measures taken to change the prevalent gender stereotypes concerning the tasks of women and girls, especially in the family, and to eradicate discriminatory and harmful practices such as levirate, sororate, repudiation and polygamy.153 25 Many other forms of socio-cultural discrimination against girls are the consequences of deficits in the education system. Because of a lack of educational opportunities, a disproportionate number of girls can neither read nor write and have therefore very limited access to information.154 To overcome this disadvantage, the States Parties are obligated to undertake positive measures to foster the specific educational advancement of girls. Article 2 lit. a of the UNESCO Convention against Discrimination in Education of 14 December 1960155 provides a corresponding exception to the prohibition of discrimination on grounds of sex. Therefore, single-sex educational institutions are only permitted insofar as the standard of education for different sexes remains equivalent. In the view of the CRC Committee, particular attention should further be paid to the disadvantage of girls with disabilities, since these are not only threatened with disadvantages in the education system, but are also more likely to be victims of family and school abuse.156 26 Discrimination against transsexuals or transgender157 and intersexual persons, 158 also falls within the scope of discrimination on grounds of sex. Similar considerations may apply to questions of gender identity, which go beyond the recognised binary system of gender and sex. For example, having only gender-specific bathrooms available in schools and forbidding transgender children from using the bathroom that matches their gender identification, is regarded as violating Article 2 CRC.159 27 In contrast, discrimination on grounds of sexual orientation falls outside the scope of discrimination based on sex, because sexual orientation concerns primarily an interpersonal feature. The Human Rights Committee has, in regards Article 26 ICCPR,

150 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 40. For more detail see → Article 1 mn. 4; → Article 10 mn. 3. 151 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 169. 152 CRC Committee, Concluding Observations: Kuwait, CRC/C/KWT/CO/2, 2013, paras 29-30. 153 CRC Committee, Concluding Observations: Senegal, CRC/C/SEN/CO/3-5, 2016, para. 43. For more detail regarding polygamy and human rights law see P Mankowski, Genießt die Polygamie Schutz durch Grund- oder Menschenrechte aus Verfassungs-, Unions- oder Völkerrecht?, Zeitschrift für das gesamte Familienrecht 2018, 1134 et seq. 154 See CRC Committee, Report on the eighth session: General Discussion on the girl child, CRC/C/38, 1995, p. 47 et seq., para. 289. 155 UNTS Vol. 429 (1962), No. 6193, p. 93. 156 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 52 et seq.; Palestine, CRC/C/PSE/CO/1, 2020, para. 49. 157 See ECtHR, Judgment of 11 July 2002, No. 28957/95, paras 97 et seq. – Goodwin v. The United Kingdom; Judgment of 16 July 2014, No. 37359/09, paras 59 et seq. – Hämäläinen v. Finland; 6 April 2017, Nos. 79885/12 et al., paras 120 et seq. – A.P., Garçon and Nicot v. France. See also CJEU, Judgment of 26 June 2018, C-451/16, ECLI:EU:C:2018:492, para. 35 – M.B. 158 See B Schmidt am Busch, Intersexualität und staatliche Schutzpflichten bei geschlechtszuweisenden Operationen, Archiv des öffentlichen Rechts 137 (2012), p. 441, at 448 et seq. 159 See N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 140.

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nevertheless found that the term “sex” is to be taken as including “sexual orientation”. 160 This opinion has failed to gain widespread acceptance.161 Also, the CRC Committee has condemned discrimination based on sexual orientation as “other status” and not as “sex” in various Concluding Observations.162 d) Religion and Ideological Opinions The prohibition of discrimination on grounds of religion protects against discrimina- 28 tion based on an individual’s membership to a religious community, as well as against discrimination based on the exercise of such belief. Also, the freedom not to belong to a religious community or not to exercise a religion (negative freedom) is covered by the prohibition of religious discrimination.163 The concept of ideology is not explicitly mentioned, but the term “political and other views” in Article 2 para. 1 CRC leaves no doubt that non-theistic, agnostic and atheistic perspectives as well as other non-transcendental worldviews are also included in the ambit of the provision. e) Disability As mentioned,164 Article 2 para. 1 CRC is the first legally binding, international 29 prohibition of discrimination to specifically protect the characteristics of disability. It was inserted into the catalogue of prohibited discrimination grounds because children with disabilities are among the most vulnerable groups of children. Multiple discrimination increases the discrimination effect with respect to this group. Therefore, the CRC Committee highlights girls with disabilities as a particularly vulnerable group.165 It is also concerned in particular at the inadequate enforcement of the laws and policies in some States Parties aimed at protecting the rights of children with albinism.166 Children with disabilities are frequently victims of serious forms of discrimination; they are often subjected to both physical and psychological violence. Social stigma and prejudice against children with disabilities are to be found in many countries. According to the CRC Committee, the States Parties must therefore expressly insert the term “disability” in their constitutional or legislative prohibitions of discrimination, in order to create adequate legal protection against the discrimination of children with disabilities and to foster awareness and promote change of views within society.167 A definition of the term “disability” is not contained in the CRC but can be found 30 in Article 1 para. 2 ICRPD.168 Pursuant to this article, persons are considered of living 160 See Human Rights Committee, Toonen v. Australia, Views adopted on 31 March 1994, CCPR/C/50/D/488/1992, para. 8.7. 161 M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 26 mns. 89-90. See also CJEU, Judgment of 17 February 1998, Case C-249/96, ECLI:EU:C:1998:63, paras 27 et seq. – Grant; Judgment of 31 March 2001, Joined Cases C-122/99 P and C-125/99 P, ECLI:EU:C:2001:304, para. 46 – D and Sweden/Council. 162 CRC Committee, Concluding Observations: Romania, CRC/C/ROU/CO/05, 2017, paras 16 et seq.; Mongolia, CRC/C/MNG/CO/5, 2017, para. 15 et seq.; United Kingdom, CRC/C/GBR/CO/5, 2016, paras 21 et seq.; Republic of Korea, CRC/C/KOR/CO/5-6, 2019, para. 16 d. 163 B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 110. 164 See → Introduction mn. 29. 165 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 10; Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 52 et seq. 166 CRC Committee, Concluding Observations: Malawi, CRC/C/MWI/CO/3-5, 2017, para. 26; Côte d’Ivoire, CRC/C/CIV/CO/2, 2019, para. 35; Mozambique, CRC/C/MOZ/CO/3-4, 2019, para. 29. See also → Article 6 mn. 12. 167 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 9. 168 See → Article 23 mn. 3.

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with disabilities when they have long-term physical, mental, intellectual or sensory impairments which, together with various barriers, may hinder their full, effective and equal participation in society. The emphasis, as was earlier the case, is no longer upon medically diagnosed causes of disability which should be cured or alleviated. Instead, individual features are linked with factors of social barriers.169 The ICRPD dedicates to children a separate provision in Article 7 ICRPD which positions the best interests of the child on the foreground. Article 23 CRC also contains a special provision to the benefit of children with disabilities, and may therefore be regarded as lex specialis provided that this attribution does not lead to inequality before the non-discrimination clause under Article 2 para. 1 CRC.170 f) Ethnic Origin 31

With the inclusion of the feature of ethnic origin, Article 2 para. 1 CRC concerns primarily indigenous children. According to the CRC Committee, indigenous children require specific, positive measures in order to be ensured an enjoyment of their rights equivalent to that of other children. Furthermore, the States Parties are obligated to eliminate the (root) causes of discrimination.171 Also, Article 30 CRC obliges the States Parties to perform positive measures benefiting indigenous children.172 In addition, children of other ethnic – not necessarily indigenous – minorities, such as Uyghur children or Roma children, are covered by the characteristic of ethnic origin.173 Given the many years of social exclusion in education, health care and housing, there is a particular need for positive integration and inclusion.174 Like Article 23 CRC for children with disabilities, also Article 30 CRC provides for special protection against discrimination of children in particularly vulnerable situations, i.e. indigenous children. g) Other Status

32

Within the term “other status” fall all those grounds not explicitly mentioned in Article 2 para. 1 CRC, but which by their very nature and design have similar effects as those expressly designated distinctive factors. The CRC Committee considers non-marital circumstances, sexual orientation and the state of health, including mental health, as prohibited grounds.175 The age itself can also be a ground of discrimination. This is especially true in the relationship between children and adults, but even within the group of (older and younger) children, where inadmissible distinctions cannot be excluded from the outset.176 Similarly, children should not be discriminated against on grounds of their status as refugees, asylum seekers or migrants; this applies in particular when 169 A Renteln, in: S Herr et al. (eds.), The Human Rights of Persons with Intellectual Disabilities, 2003, p. 59 et seq. 170 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 54. 171 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 8; General Comment No. 11, CRC/C/GC/11, 2009, para. 25. 172 See → Article 30 mn. 9. 173 CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/3-4, 2013, para. 25; Bulgaria, CRC/C/BGR/CO/3-5, 2016, para. 19. 174 See with regard to Roma children: European Commission, Communication of 5 April 2011, COM(2011) 173 final. For more detail see → Article 24 mn. 34, → Article 28 mn. 11, → Article 30 mn. 14. 175 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 6; Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, paras 26 et seq. For more detail see O Cvejić Jančić, in: eadem (ed.), The Rights of the Child in a Changing World, 2016, p. 1, at 12 et seq. 176 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 21.

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the child is separated from or unaccompanied by parents or guardians.177 Furthermore, the CRC Committee has pointed out that children in conflict with the law are frequently victims of discrimination, especially where access to education and the labour market is concerned. States Parties must therefore support the efforts of convicted children to reintegrate back into society.178 Discrimination on the basis of their connections with the street, that is, on the grounds of their social origin, property, birth or other status, is also one of the prime causes of children ending up in street situations. The CRC Committee therefore interprets “other status” under Article 2 para. 1 CRC to include the street situation of a child or his/her parents and other family members.179 Particular problems of discrimination concern HIV/AIDS infections of the parents 33 or the child. The CRC Committee acknowledges an HIV/AIDS infection as constituting an “other status” under Article 2 para. 1 CRC180 and, in doing so, rejects the view that an HIV/AIDS infection fulfils merely the criterion of disability. Although HIV/AIDS does represent a serious chronic disease, there are also multifaceted social problems and stigmatisation associated with the disease which justifies a separate, specific understanding of it. Primarily, children can easily become victims to the infection. As a group, young people form the majority of those with new HIV infections; especially those aged between 15 to 24 years.181 The cause of this is usually the lack of access to contraceptives for adolescents. In many countries, access to health measures is especially difficult for children and adolescents in rural areas, as well as for indigenous children, which results in an increased risk of their infection.182 In many cases, this risk of infection is also high for girls forced into marriage because marriage is often causally linked to the end of their education.183 The consequential lack of information often leads to an unwitting transmission of HIV infection from mother to child, either during pregnancy or at birth. Thus, a “vicious circle” is initiated, as these children lose their parents early and often develop HIV/AIDS themselves. The presence of HIV/AIDS in orphan children means that they are regularly avoided or repelled by foster families, and have to be placed in institutions.184 Moreover, for instance in India, the infection with HIV is often associated with a bad “karma”, which means that infants are already a priori excluded from society.185 Additionally, children are disadvantaged by HIV/AIDS infections of their parents. The illness or death of parents can lead to poverty and neglect, but also to (mediated) discrimination of the child on grounds of their own suspected infection or of the status of their parents. Both situations concern not only the right to health (see Article 24 CRC), but also the early adverse consequences for the enjoyment of the full Convention rights, for example, the right to education or access to social benefits. 186

177 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 18. Further see → Article 22 mns. 6, 9. 178 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 7. 179 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 25. 180 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 9; General Comment No. 4, CRC/GC/2003/4, 2003, para. 6. 181 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 2. 182 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 7, 21. 183 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 8, 11. On further serious consequences of forced marriage, see CEDAW Committee/CRC Committee, General Comments No. 31 and No. 18 CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 21. 184 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 314. 185 J Gathia/S Gathia, Children’s Rights and Wellbeing in India, 2015, p. 291. 186 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 5, 31.

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5. Duty-Bearers of the Prohibition of Discrimination Like any other violation of human rights, discrimination may have various perpetrators.187 Discrimination may be of public or private origin. In the case of the latter, an additional distinction can be made between discrimination of the child enacted by their own parents and families and that enacted by other third parties, be they adults, children or business enterprises. However, the sole duty-bearers of Article 2 para. 1 CRC are the States as parties to the Convention.188 Article 2 para. 1 CRC merely prohibits the State or any State authority from undertaking any discriminatory measure. The Convention does not recognise a direct obligation of private individuals or non-State entities. In that regard, the CRC is consistent with most international human rights treaties, which exclude a direct third-party effect. Up to now, clear direct horizontal effects have never been granted to the non-discrimination principle in international law.189 However, some recent human rights treaties have adopted a new approach. In this regard, Article 9 ICRPD, entitled “accessibility”, guarantees, in addition to several State obligations, unhindered access of persons with disabilities to publicly available facilities and non-governmental services (Article 9 para. 2 lit. b ICRPD) and is thus expressly addressed to private entities. Here, dogmatic intersections with Article 5 ICERD are present.190 35 On the other hand, it is widely accepted that the prohibition of discrimination in Article 2 para. 1 CRC has an indirect third-party or horizontal effect.191 The obligation of States Parties to ensure compliance with the rights stipulated in the CRC includes an obligation to ensure that third parties, especially non-governmental service providers but also any other individual, act in accordance with the provisions of the CRC. By these means, the Convention creates indirect horizontal obligations for private actors.192 States Parties have a positive duty to prevent legally or practically individuals, service providers and enterprises from discriminating against children.193 The courts and authorities of the States Parties must therefore interpret statutory legal provisions as prohibiting discrimination between individuals.194 The State’s obligation to protect and to ensure human rights is, on hand from Article 2 para. 2 CRC, expanded to include “mediated discrimination”, which is connected to the status or activities of the parents, guardians or other family members of the child.195 34

187 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 54. 188 Clearly so: CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 43. See also S Besson, The Principle of Non-Discrimination in the Convention on the Rights of the Child, International Journal of Children’s Rights 13 (2005), p. 433, at 449; B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 103 et seq. 189 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 55. 190 See B-O Bryde, in: E Klein (ed.), Rassische Diskriminierung, 2002, p. 61, at p. 66. 191 See, e.g., S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 55, with further references. 192 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 43; General Comment No. 11, CRC/C/GC/11, 2009, para. 23. See also CRC Committee, Concluding Observations: Cambodia, CRC/C/15/Add.128, 2000, para. 26; Niger, CRC/C/15/Add.179, 2002, para. 26. 193 See CRC Committee, General Comment No. 16, CRC/C/GC/16, para. 14; General Comment No. 21, CRC/C/GC/21, 2017, para. 15. 194 S Besson, The Principle of Non-Discrimination in the Convention on the Rights of the Child, International Journal of Children’s Rights 13 (2005), p. 433, at 449 et seq. 195 See → Article 2 mn. 38.

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Art. 2

6. Particular Positive Obligations Arising from Article 2 para. 1 CRC to Fight De Facto Discrimination With regard to the prohibition of discrimination in Article 2 para. 1 CRC, it is 36 not sufficient that the States Parties merely abstain from performing positive discriminatory acts. States should also prevent and combat all forms of discrimination against children.196 They must actively combat discrimination in all forms and from all actors and clear public and private barriers to equal treatment.197 States Parties shall adopt adequate measures to fight discrimination on any grounds and to protect children from multiple and intersecting forms of discrimination. This applies in particular throughout the migration process. In order to achieve such a goal, States Parties should strengthen efforts to combat xenophobia, racism and discrimination and should also promote social inclusion for children of all genders and children with disabilities.198 On this issue, the CRC Committee refers to the General Comment No. 18 (1989) of the Human Rights Committee199 and stresses the importance of specific measures to reduce or eliminate any cause of discrimination.200 For instance, even if national laws to a large extent conform to the requirements of Article 2 CRC, the actual situation of foreign children with residence status have to be taken into account. Their situation often differs in many ways from the situation of domestic children. Their family environment is shaped by other social and cultural conditions. Thus, their educational and professional path is often exposed to additional burdens, the material income of foreign families is on average lower than that of domestic native families. The ghettoization of foreign population groups is particularly threatening in large cities. Therefore, the CRC Committee has repeatedly criticised this de facto discrimination against foreign children.201 In general, the CRC Committee is of the view that addressing only de jure discrimination will not necessarily ensure de facto equality. Hence, it urges the States Parties to adopt positive measures to prevent, diminish and eliminate the conditions and attitudes that cause or perpetuate de facto discrimination against children.202 In that regard, States Parties shall, firstly, conduct investigations and collect disaggre- 37 gated statistical data in order to identify discrimination.203 The CRC Committee has recently returned to this demand with regard to children in the context of international migration.204 States Parties should also investigate which groups of children require special support measures in order to realise their rights.205 Secondly, the prohibition of discrimination may necessitate changes in legislation, administration and distribution of resources. States Parties shall introduce an anti-discrimination provision into their naCRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 26. S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 68 et seq. 198 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, paras 23-25. 199 Human Rights Committee, General Comment No. 18: Non-discrimination, HRI/GEN/1/Rev.9 (Vol. I), 1989, p. 195, para. 5. 200 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 12. See also → Article 2 mn. 18. 201 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 23 et seq. 202 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 26. 203 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 12, 48; General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 29. 204 For more detail see → Article 4 mn. 16. 205 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 12; General Comment No. 11, CRC/C/GC/11, 2009, para. 24. 196

197

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[Nature of State Obligations; Prohibition of Discrimination; Obligation to Protect]

tional law that specifically applies to children and which contains all distinctive features as enumerated in Article 2 para. 1 CRC, either at the constitutional level or by means of statutory legislation.206 Thirdly, States Parties shall take appropriate measures to reduce economic, social and geographic inequalities especially between rural and urban areas. The CRC Committee states that, in many countries, there are major differences between urban and rural areas in child health care and education.207 However, the view of the Contracting States should not only focus on the socio-geographical differences, but above all specifically on those children who belong to minority groups, due to, e.g., a disability, non-marital circumstances or homelessness.208 Educational measures may also be necessary to create a shift in the awareness of the society.209 Yet, Article 4, sentence 2 CRC is to consider in this context, too, as it subjects economic, social and cultural rights to the reservation of available resources.210 Nevertheless, Article 2 para. 1 CRC is not merely a programmatic right but instead represents a form of progressive, active obligation based on veritable, actionable and justiciable human right.211

III. Obligations to Protect (Article 2 para. 2 CRC) Article 2 para. 2 CRC extends the obligation of Article 2 para. 1 CRC to encompass a positive obligation of the State with regard to discrimination based on the status or activities of the parents, guardians or other family members of the child. In contrast to the prohibition of discrimination in Article 2 para. 1 CRC, the States Parties’ obligations arising from Article 2 para. 2 CRC relate not only to the rights in the Convention, but are autonomous, i.e. they also relate to rights which fall outside the ambit of the CRC.212 This may have very broad implications for the best interests of the child, although these remain largely unexplored to date.213 Under a different perspective, the application ratione materiae of Article 2 para. 2 CRC is narrower than that of the first paragraph of the provision, since it deals only with issues of so-called “mediated discrimination”. Article 2 para. 2 CRC demonstrates that mediated discrimination is regarded as particularly abhorrent and should therefore be combatted comprehensively. 39 On the other hand, there are numerous substantive and objective overlaps between Article 2 para. 2 and Article 2 para. 1 CRC, because this latter provision also includes mediated discrimination.214 A slight difference between these provisions may only be seen in the fact that Article 2 para. 1 CRC regards the status of parents or other persons 38

CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 25. See, e.g., CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/3-4, 2013, paras 62 et seq. See also Council of Europe, Guidelines on the access of young people from disadvantaged neighbourhoods to social rights, adopted by the Committee of Ministers on 21 January 2015, CM/Rec(2015)3. 208 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 27. 209 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 12. 210 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 69. 211 See H Cremer, Menschenrechtsverträge als Quelle von individuellen Rechten, Anwaltsblatt 2011, p. 159-165, at 160 et seq.; S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 67 et seq. 212 See B Abramson, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2008, Article 2, p. 132; S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 53. 213 R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3 rd edn. 2007, p. 30. 214 See → Article 2 mn. 8. 206

207

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Art. 2

close to the child, whereas Article 2 para. 2 CRC applies to the discrimination of children that is based on the status, activities, expressed opinions or beliefs of their parents, legal guardians or (extended) family members.215 For example, Article 2 para. 2 CRC reinforces the obligation under Article 2 para. 1 CRC in particular in the case of children of imprisoned parents. Because children who have not committed delinquency on their own, but suffer in many ways from the incarceration of their parents, States Parties must strive to ensure compliance with the prohibition of discrimination and actively combat third-party discrimination in these situations.216 Awareness-raising campaigns have to be held to prevent the stigmatisation of those children and increase social attentiveness of their precarious situation.217 In addition, the CRC Committee demands a stronger focus on the rights of the de facto "co-punished" child, as well as the appointment of a designated child representative who specifically advocates for the needs of the children of imprisoned parents.218

IV. Embedding of Article 2 CRC into the System of International Human Rights Protection The prohibition of discrimination is a core component of all human rights instru- 40 ments and has become a constitutive element of customary international law.219 All international human rights treaties contain their own provisions prohibiting discrimination on various grounds, see, e.g., Article 2 para. 1, Article 24 and Article 26 ICCPR; Article 2 para. 2 ICESCR; Article 14 ECHR; and Article 3 ACRWC. As far as discrimination against children is concerned, the ECtHR has taken pivotal decisions in this regard. This applies, in particular, to the equality of marital and non-marital children.220 If, for instance, non-marital children born prior to a deadline introduced in national law statutes are excluded for the entitlement to inheritance or surrogate, they are inadmissibly discriminated against marital children within the meaning of Article 8, read in conjunction with Article 14 ECHR.221 Also gender identification, sexual orientation, and sexual life are details of individual identity that come within the sphere protected by Articles 8 and 14 ECHR.222 One remaining taboo is, however, the incestuous relationship. The ECtHR has observed that a broad consensus transpires that sexual relationships between siblings are neither accepted by the legal order nor by society as a whole.223

215 S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 61. 216 See S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung, Recht der Jugend und des Bildungswesens 2014, p. 125, at 133 et seq. 217 CRC Committee, Report and Recommendations of the Day of General Discipline on children of incarcerated parents, CRC/DGD/Report, 30 September 2011, paras 20, 33. 218 CRC Committee, Report and Recommendations of the Day of General Discussion on children of incarcerated parents, CRC/DGD/Report, 30 September 2011, paras 24, 47. 219 See S Besson/E Kleber, Article 2, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 41, at 44 et seq., with further references. 220 See → Article 2 mn. 21. 221 ECtHR, Judgment of 9 February 2017, No. 29762/09, paras 36 et seq. – Mitzinger v. Germany; Judgment of 23 March 2017, Nos. 59752/13 and 66277/13, paras 58, 72 et seq. – Wolter and Sarfert v. Germany. 222 ECtHR, Judgment of 22 October 1981, No. 7525/76, para. 52 – Dudgeon v. The United Kingdom. For more detail see WA Schabas, The European Convention on Human Rights. A Commentary, 2015, Article 8, p. 358, at 380-381. 223 ECtHR, Judgment of 12 April 2012, No. 43547/08, para. 61 – Stübing v. Germany.

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Art. 3 41

[Guarantee of the Best Interests of the Child]

In European Union law, person-related prohibitions of discrimination are found in Articles 18, 45, 49, and 56 TFEU (prohibition of discrimination on grounds of nationality) and in Article 157 TFEU (prohibition of discrimination on grounds of sex), in Article 20 of the EU Charter of Fundamental Rights (general principle of equality), Article 21 of the EU Charter of Fundamental Rights (general prohibition of discrimination) and in Article 23 of the EU Charter of Fundamental Rights (equality between men and women). All these prohibitions of discrimination apply without restriction for children and have had a strong impact on EU secondary law and jurisprudence. For instance, Regulation 883/2004/EC, which has replaced Regulation 1408/71/EEC in 2004,224 does not preclude a right to child-related benefits (child allowances) from EU migrant workers in a second legal system.225 This is true even if neither the employee nor the child reside in the Member State of temporary employment.226 The provisions on the free movement of workers according to Articles 45 et seq. TFEU seek precisely to prevent workers from exercising their right to freedom of movement from being worse off than those who remain in one Member State.227 Different conditions operate if non-working Union citizens in other EU countries apply for a child benefit or a child allowance. Such claims may depend not only on habitual residence but also on the existence of a right of residence.228 In addition, Article 21 para. 1 of the EU Charter of Fundamental Rights protects children from unjustified unequal treatment in respect of adults. The CJEU has held that this provision protects not only adults from age-based discrimination, but also young people.229

Article 3 [Guarantee of the Best Interests of the Child] 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

224 Regulation, 1408/71/EEC, OJ EU 1971, No. L 149, p. 2; Regulation 883/2004/EC, OJ EU 2004, No. L 166, p.1. 225 CJEU, Judgment of 20 May 2008, Case C-352/06, ECLI:EU:C:2008:290, paras 28, 31 – Bosmann. 226 CJEU, Judgment of 12 June 2012, Joined Cases C-611/10 and C-612/10, ECLI:EU:C:2012:339, para. 68 – Hudzinski and Wawrzyniak. 227 CJEU, Judgment of 22 October 2015, Case C-378/14, ECLI:EU:C:2015:720, para. 41 – Trapkowski. 228 CJEU, Judgment of 14 June 2016, Case C-308/14, ECLI:EU:C:2016:436, paras 62 et seq. – European Commission/United Kingdom. On the other hand, see ECtHR, Decision of 8 September 2015, Nos. 76860/11 and 51354/13, para 43 et seq. – Okitaloshima and Lokongo v. France, where the ECtHR considers it objectively justified for a Contracting State to refuse to pay child benefit if the rules governing family reunification have not been complied with. 229 CJEU, Judgment of 18 June 2009, Case C-88/08, ECLI:EU:C:2009:381, paras. 49-51 – Hütter; Judgment of 19 January 2010, Case C-555/07, ECLI:EU:C:2010:21, paras 30-43 – Kücükdeveci.

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[Guarantee of the Best Interests of the Child] I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Primacy of Considering the Best Interests of the Child (Article 3 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. States’ Duty to Protect the Best Interests of the Child with Regard to Legislative and Administrative Measures (Article 3 para. 2 CRC) . . . . . . . . . . . . IV. States’ Duties to Protect and to Fulfil the Best Interests of the Child in Regards to the Arrangement of Public and Private Bodies (Article 3 para. 3 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Embedding of Article 3 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 19 22 23

I. Generalities The central idea of the CRC, its raison d’être, is manifested in the obligations of the 1 States Parties to guarantee the best interests of the child, as stipulated in Article 3 CRC. This article forms the linchpin of all rights of the Convention1 and is to be understood dogmatically as a horizontal or umbrella clause directly relating to all the actions of the States Parties, but it does not create any specific rights or obligations of result itself. 2 The principle of the best interests of the child is also explicitly mentioned in Article 9 paras 1 and 3, Article 10, Article 18 para. 1, Article 20 para. 1, Article 21, Article 37 lit. c and Article 40 para. 2 lit. b (iii) CRC as well as in Article 8 para. 3 of the Second Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (OPSC). In addition, it runs through all the other Convention guarantees, which must be interpreted therefore in the light of Article 3 CRC.3 Since the rules of Article 3 CRC are applicable in all actions concerning children, they encompass not only actions that directly affect, relate or refer to children but also those whose consequences may indirectly affect the child.4 The best interests of the child may therefore be invoked in conjunction with the other provisions of the CRC in order to support, justify or clarify a particular approach to issues arising under the Convention.5 In fact, there is no provision in the CRC with respect to which the principle of the best interests of the child is irrelevant. The special significance of the principle of the best interests of the child is explained 2 by the fact that children are more vulnerable than adults. In a “adult world”, children’s interests risk of being undermined or neglected.6 According to the CRC Committee, Article 3 as well as Article 2, Article 6 and Article 12 CRC, form together the “general principles” of the Convention.7 Thus, it is no coincidence that Article 2 of the Third Optional Protocol to the CRC on a Communication Procedure (OPIC) also binds the CRC 1 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 25. 2 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 45 et seq.; G Mower Jr., The Convention on the Rights of the Child, 1997, p. 23. 3 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 5. See also H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2011, p. 13; P Alston, in: idem (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights, 1994, p. 1, at 15 et seq. 4 For a fuller account see J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 77 et seq. 5 T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 575. 6 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 40. 7 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 12; General Comment No. 14, CRC/C/GC/14, 2013, para. 1. Critical approach by K Hanson/L Lundy, Does Exactly What it Says on the Tin?, International Journal of Children’s Rights 25 (2017), p. 285 et seq.

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Committee explicitly, in regards to individual complaints and investigative procedures, to primarily consider the welfare and the best interests of the child.8 In principle, three aspects can be crystallised out of the principle of the best interests of the child: – – –

First, it is a substantive right; second, the principle of best interests of the child is a fundamental principle in the interpretation of all children's rights; and third, it acts as a procedural requirement for substantive provisions or simply as a rule of procedure.9

In addition, Article 3 CRC may be considered as having two main different but intricately related applications, namely, in the design of government policy-making having an impact on children in general, as well as in concrete decisions made about children on an individual level.10 3 The authentic English text of Article 3 CRC speaks, in difference to the non-authentic German official translation into “Kindeswohl” (well-being of the child), more precisely of the “best interests of the child”. However, this does not necessarily mean that there is a significant difference in substance to the terminology and concept of the child’s well-being used in the German version, as far as the implementation and application of the child’s well-being take place in the best interests of the child and consider the child as a genuine rights-holder.11 The decisive factor is that the child’s interests are at the forefront of government actions, programmes and policies and that those interests are adequately and especially promoted and protected.12 In other words, the reason why the best interests of the child are taken into consideration is to ensure respect for the child’s fundamental rights.13 The weakened wording of Article 3 CRC, which occurred in the course of the drafting process and resulted in a reduction from child’s best interests demanding the highest consideration (“paramount consideration”),14 as still stated in Article 21 CRC,15 to only a “primary consideration”,16 does not cause a substantive weakening of the meaning. It may not be denied that, even on hand from the final text of Article 3 CRC, the well-being of the child is of utmost importance for all decisions regarding children in general or individual terms.17 With the term 8 See Circular of the German Federal Parliament (Bundestags-Drucksache) 17/10916, p. 19. For more detail see → Individual Communications Procedure mn. 4. 9 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 6; General Comment No. 20, CRC/C/GC/20, 2016, para. 22. 10 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 451. 11 Concurrent view by CRC Committee, Concluding Observations: Switzerland, CRC/C/CHE/CO/2-4, 2015, para. 26. Arguably different opinion by H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 328. 12 A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 56, at 60; G Benassi, Deutsche Rechtsprechung vs. UN-Kinderrechtskonvention?, Deutsches Verwaltungsblatt 2016, p. 617, at 619 et seq. 13 Similar assessment by CJEU, Judgment of 23 December 2009, Case-403/09 PPU, ECLI:EU:C: 2009:810, paras 53-55 – Detiček; Judgment of 5 October 2010, Case-400/10 PPU, ECLI:EU:C:2010:582, para. 60 – McB; Judgment of 27 October 2016, Case-428/15, ECLI:EU:C:2016:819, para. 44 – Child and Family Agency. Further see → Article 9 mn. 22. 14 See J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 95; W Vandenhole/GE Türkelli, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 205, at 206. 15 See → Article 21 mn. 4. 16 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 131 et seq. 17 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 37, 39.

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“primary consideration” it merely should be made clear that the best interests of the child are not an absolute or overriding principle denying or leaving aside the interests of other persons or the common good and public order.18 The primary competence of interpreting the best interests of the child pursuant to Article 3 para. 2, Article 5 and Article 18 para. 1 CRC is up to the parents or the legal guardian, who must, of course, take the opinion and the will and wishes of the child in proportion to his or her age and maturity into account.19 Therefore, under Article 3 paras 1 and 2 CRC, the role of the State is limited to conducting control of the parental suitability when the best interests of the child are severely neglected.20

II. Primacy of Considering the Best Interests of the Child (Article 3 para. 1 CRC) All actions of private individuals and entities or public bodies or authorities that af- 4 fect children must be aligned with the best interests of the child pursuant to Article 3 para. 1 CRC.21 The CRC Committee has noted that the word “action” includes all acts, conducts, proposals, services, decisions, procedures and any other measures. Even inactions and omissions or failure to take action have to be measured against Article 3 para. 1 CRC.22 Article 3 CRC forms a general, broad and objective determination of the aim to ensure full enjoyment of human rights for children.23 The welfare and the best interests of the child were anchored early as a central element in Principles Nos. 2 and 7 of the 1959 Children’s Rights Declaration24 and also form the basis for Article 23 para. 4 and Article 24 ICCPR and Article 24 para. 1 and para. 2 of the EU Charter of Fundamental Rights.25 The vague legal concept of the best interests of the child is also difficult to define within these general human rights instruments because it is the result of various, often complex deliberations and decision-making processes. 26 In addition, the best interests of the child are mentioned in Article 5 lit. b and Article 16 para. 1 lit. d and lit. f CEDAW and in Article 4 of the African Charter on the Rights and Welfare of the Child. The purpose of Article 3 para. 1 CRC is to create awareness of children’s legal position 5 in all decisions that directly or indirectly relate to children, insofar as the best interests of the child are not merely taken into account, but rather constitute a significant guideline for any decision-making process.27 In this way, the child’s well-being must be the guiding 18 See RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 9 et seq.; G Benassi, Deutsche Rechtsprechung vs. UN-Kinderrechtskonvention?, Deutsches Verwaltungsblatt 2016, p. 617, at 619; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 3.17. 19 See → Article 12 mns. 11 et seq. 20 Similarly, D König, in: E Klein (ed.), Globaler demographischer Wandel und Schutz der Menschenrechte, 2005, p. 222, at 230. Disagreeing: H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 328. 21 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 25. 22 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 17, 18. See also M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 45. 23 RA Lorz, Der Vorrang des Kindeswohls nach Art. 3 der UN-Kinderrechtskonvention in der deutschen Rechtsordnung, 2003, p. 22. 24 See → Introduction mns. 3, 4. 25 See also RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 10 et seq.; T Marauhn, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mn. 12. 26 S Hölscheidt in: J Meyer (ed.), Charta der Grundrechte der EU, Kommentar, 5 th edn. 2019, Article 24 mns. 22, 31. 27 See RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 8 et seq.

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principle in all conflicts between children’s rights and third-party rights.28 In cases of conflicts of interest between the rights of parents, guardians or caregivers on the one hand and those of the child on the other hand, the interests of the child shall in principle prevail. However, in respect of the relationship between parents and public authorities, parents determine first and foremost what is in the best interests of their child. The State has only the subsidiary power to control parental suitability.29 In addition, the best interests of the child are not only to be considered when conducting measures directly concerning or affecting children, but also in measures which significantly affect or have a major impact on the essential interests of children.30 This includes immigration, residence and asylum laws and procedures,31 as well as land-use planning or construction.32 In that regard, the child's best interests function as a group-related right, even if the Convention and its Optional Protocols are unfamiliar with popular or collective complaints.33 Nevertheless, the CRC Committee stresses that States Parties do have an obligation to assess and take as a primary consideration the best interests of children as a group or in general, for instance, in the policy-making or legislative actions. This requires a thorough and balanced impact assessment on children´s rights, which must take children’s views into account, even if they are not the specific target group of the measure.34 6 Article 3 para. 1 CRC is a directly applicable, self-executing norm and can be invoked before a Court.35 The French Cour de Cassation and the Conseil d'Etat have variously reiterated the direct applicability of Article 3 para. 1 CRC in their jurisprudence since 2005.36 Consideration of the child’s best interests affects not only those provisions which are contained in the Convention, but also applies autonomously and in general. According to Article 3 para. 1 CRC, the best interests of the child must be taken into a primary consideration even in regard to the measures which fall outside the scope of the Convention’s guarantees.37 The particular content of Article 3 CRC is demonstrated by its complementary role.38 The vast scope of the principle, which applies in all actions concerning children, is designed to address the historical disregard for children’s interest 28 M Santos Pais, The United Nations Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 75, at 77. 29 See → Article 3 mns. 9, 19. 30 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 19-20; I Baer, Verabschiedung des UN-Übereinkommens über die Rechte des Kindes im November 1989 in New York, Familie und Recht 1990, p. 192, at 193. A more extensive view is expressed by M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 46. 31 See C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 437. For more detail see → Article 22 mns. 6, 9. 32 RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 14; G Benassi, Deutsche Rechtsprechung vs. UN-Kinderrechtskonvention?, Deutsches Verwaltungsblatt 2016, p. 617, at 620. 33 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 23 et seq., 32. See also → Individual Communications Procedure mn. 10. 34 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 23, 35. See also J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 78 et seq. 35 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 36. See also R Eichholz, Der Vorrang des Kindeswohls, 2015, p. 10; RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 8, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 3.07. 36 For more detail see A Gouttenoire, in: O Cvejić Jančić (ed.), The Rights of the Child in a Changing World, 2016, p. 109, at 110. 37 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 90; H-G Dederer, in: A Uhle (ed.), Kinder im Recht, 2019, p. 287, at 314 et seq. 38 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 32 et seq.

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by decision-makers at all levels of society, whether public or private, whether central, regional or local.39 Nevertheless, the best interests of the child as conceived by Article 3 CRC still work purely as a discretional guideline when balancing the interests of the child with fundamental rights of third parties.40 However, the best interests of the child, being a primary consideration, hold a crucial importance in the distribution of argumentative weight.41 The subjective and legal effect of the precedence clause of Article 3 CRC exists only in the sense that every child is entitled to faultless consideration of the primacy of his or her best interests in conflict with the interests of third parties or the general public.42 Article 3 CRC does not allow for extensive original claims for benefits or derivative rights in the realisation of the best interests of the child.43 States Parties’ obligations according to Article 3 para. 1 CRC relate to all actions 7 concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. The wording of Article 3 para. 1 CRC is construed broadly and applies to all possible actors.44 The primacy of the best interests of the child must therefore be acknowledged in all legislative, administrative and judicial proceedings as well as policies, programmes and projects relevant to and with an impact on children.45 Courts and administrative authorities must ensure that the primacy of child’s best interests is actually enforced in national law.46 This includes not only the obvious issues relevant to children, such as parental care, domestic violence and juvenile justice, but also budgetary allocations and international assistance which have an indirect impact on children.47 In addition, Article 3 para. 1 CRC explicitly counts private social welfare institutions amongst its duty-bearers. Following this rule, the article establishes a certain horizontal effect.48 Yet, the imposition of an obligation on private social welfare institutions is rather inconsistent in an international treaty in which only States are parties.49 The CRC Committee therefore considers that States Parties have an obligation to ensure that the best interests of the child are assessed and taken into account as a primary consideration in decisions and actions of the private sector, whether for profit or not, that plays a role in the provision of services which are critical for children to be able to exercise their rights.50 For instance, in the digital 39 J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 77. 40 Rightly so, RA Lorz, Der Vorrang des Kindeswohls nach Art. 3 der UN-Kinderrechtskonvention in der deutschen Rechtsordnung, 2003, p. 66. Disagreeing: H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 328. 41 RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 15 et seq. 42 R Eichholz, Der Vorrang des Kindeswohls, 2015, p. 15 et seq. 43 H-G Dederer, in: A Uhle (ed.), Kinder im Recht, 2019, p. 287, at 316. 44 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 25 et seq. See also P Alston, in: idem (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights, 1994, p. 1, at 14. 45 CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 30 a; Australia, CRC/C/AUS/CO/4, 2012, para. 32; Argentina, CRC/ARG/CO/3-4, 2010, para. 33. See also G Benassi, Kindeswohlvorrang ins Grundgesetz, Informationsbrief Ausländerrecht 2011, p. 428, at 429. 46 See RA Lorz, Der Vorrang des Kindeswohls nach Art. 3 der UN-Kinderrechtskonvention in der deutschen Rechtsordnung, 2003, p. 60; RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 13 et seq.; H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 328. 47 See, e.g., CRC Committee, Concluding Observations: Nigeria, CRC/C/NGA/CO/3-4, 2010, para. 31; Turkey, CRC/C/TUR/CO/2-3, 2012, para. 31; Australia, CRC/C/AUS/CO/4, 2012, para. 32; Myanmar, CRC/C/MMR/CO/3-4, 2012, para. 37; Democratic Peoples’ Republic of Korea, CRC/C/PRK/CO/4, 2009, para. 22. 48 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 26. 49 Similarly, J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 80. 50 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 14.

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environment, this implies ensuring that technology companies or platform providers take the best interests of children into account when their products and services are mainly used by children.51 8 What is curious, however, is that neither parents nor legal guardians are mentioned in Article 3 para. 1 CRC,52 although they were referred to in earlier drafts of Article 3 CRC and were only removed at the end of the drafting process.53 This omission is presumably due to the fact that this group of people is subject to a special provision in Article 18 para. 1, sentence 3 CRC. For parents and guardians, the welfare of the child is not simply a primary consideration among other considerations, but rather a “fundamental natural concern”.54 There is no doubt that a child’s well-being can be best promoted in a harmonious family environment, where there is an atmosphere of love and understanding and which is free from discrimination and exploitation.55 For this reason, both Article 3 para. 2 and Article 18 para. 1 CRC stipulate that the manner in which the child’s well-being is best served is primarily determined by the parents and not by the State authorities.56 9 The best interests of the child in Article 3 para. 1 CRC are intentionally laid down as “a” primary consideration rather than “the” (single) primary consideration, because in certain circumstances competing interests or aspects must be given appropriate priority.57 The best interests of the child do not enjoy an absolute or overriding precedence over other private and public interests.58 Although the best interests of the child are of fundamental value, they are in principle open to compromise.59 In individual cases, the child’s best interests may even be subsidiary or subordinate to other legally protected interests, for example in cases where the protection of third parties against juvenile offenders is at stake.60 Article 3 para. 1 CRC also does not exclude the possibility of the expulsion of a delinquent parent, but only requires the reasoned consideration of the child’s best interests as part of a discretionary deliberation based on the principles of necessity and reasonableness.61 Therefore, consideration of the child’s welfare cannot 51 See E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 492. 52 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 44 et seq. 53 See P Alston, in: idem (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights, 1994, p. 1, at 14-15, referring to the Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, paras 25 et seq. 54 See also Circular of the German Federal Parliament (Bundestags-Drucksache) 12/42, p. 35. Further see → Article 18 mn. 7. 55 A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 56, at 60. 56 See → Article 3 mn. 9; → Article 18 mn. 7. 57 See M Palm-Risse, Hilfe für die Wehrlosen: Die Konvention über die Rechte des Kindes, Vereinte Nationen 1990, p. 101, at 102; S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 91; P Alston, in: idem (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights, 1994, p. 1, at 11. 58 See M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 5, 60 et seq.; J Todres, Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and its Early Case Law, Columbia Human Rights Law Review 30 (1998), p. 159, at 196; L Krappmann/K Lüscher, Kinderrechte im Generationenverbund, Recht der Jugend und des Bildungswesens 2009, p. 326, at 328. Different assessment by H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 328. 59 J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 96. 60 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 39. 61 Rightly so, J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 97.

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claim precedence and priority above all circumstances; but it does function, in any situation which affect children, as an “optimisation tool” which aims to ensure the best possible realisation of the child’s rights.62 In that regard, the child’s best interests must be incorporated not only in legislative, administrative and governmental decision-making processes, but also in the reasoning behind these decisions.63 For instance, the child's best interests must be taken into account in any decisions against an imprisoned or detained parent.64 In the view of the CRC Committee, alternative sanction options (e.g., "electronic shackles") and family-integrated forms of execution (such as joint placement of the parent and the child in an “open prison”) are to be applied preferentially to delinquent parents of underage children.65 At the centre of the CRC Committee's deliberations are not any easing measures for the delinquent parent, but only the well-being and the best interests of the child.66 It should be emphasised, however, that in many situations the child's well-being and interests do not necessarily have to conflict with other interests, such as those of parents or the State authorities. 67 On the contrary, it is in the best interests of parents, the State and the children themselves to encourage children and to prepare them for independence and for a self-determined adult life. 68 Usually, it is for the parents to ensure that their children, through means of educational development, become responsible and socially competent people. In contrast, the State authorities have a mere subsidiary duty of scrutiny in regards to parental suitability.69 There are various cases where the interests of the child may be behind the conflict- 10 ing interests of third parties or the public order. Interests of the pregnant mother, for instance, can take precedence over the interests of the (unborn) child during childbirth emergencies.70 Accordingly, States Parties are not precluded from considering the interests of the mother as worthy of protection when regulating the criminalisation of abortion. The Convention does not establish protection of prenatal life, either in Article 1 or in Article 6 CRC.71 Even immigration restrictions can result in measures which do not necessarily correspond to the interests of children wishing to immigrate. 72 Depending on the individual situation, the deferral of the child’s interest is admissible. However, the burden of proof in such cases lies with the administrative and judicial authorities.73 Finally, the flexibility, which Article 3 para. 1 CRC affords to the balancing process with respect to conflicting interests, is particularly important when it comes to the phenomenon of underage parents. In such a case, both the underage parents 62 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 39; RA Lorz, Der Vorrang des Kindeswohls nach Art. 3 der UN-Kinderrechtskonvention in der deutschen Rechtsordnung, 2003, p. 24; G Benassi, Deutsche Rechtsprechung vs. UN-Kinderrechtskonvention?, Deutsches Verwaltungsblatt 2016, p. 617, at 620. 63 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 36 et seq. 64 See CRC Committee, Report and Recommendations of the Day of General Discussion on children of incarcerated parents, CRC/DGD/Report, 30 September 2011, para. 31. 65 CRC Committee, Report and Recommendations of the Day of General Discussion on children of incarcerated parents, CRC/DGD/Report, 30 September 2011, paras 22, 30, 37. See also → Article 9 mn. 2. 66 Cf. S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung, Recht der Jugend und des Bildungswesens 2014, p. 125, at 130. 67 L Krappmann/K Lüscher, Kinderrechte im Generationenverbund, Recht der Jugend und des Bildungswesens 2009, p. 326, at 326. 68 See A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 56, at 59. See also O Klein, Fremdnützige Freiheitsgrundrechte, 2003, p. 71. 69 See → Article 3 mn. 5. 70 See Commission on Human Rights, E/CN.4/L.1560/Add.14, 1981, p. 5 et seq. 71 See → Article 1 mn. 8; → Article 6 mn. 5. 72 See → Article 10 mns. 6, 8. 73 P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 9; R Eichholz, Der Vorrang des Kindeswohls, 2015, p. 13 et seq.

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and their children fall within the scope of the CRC. However, not every measure can simultaneously serve the interests of all interested parties. The same applies to the possible conflicting interests of different groups of children.74 11 The predominant role and function of the principle of the best interests of the child as established in Article 3 para. 1 CRC is sometimes called into question because of the vagueness and indeterminacy of its criteria.75 Firstly, the child’s best interest is dependent upon subjective evaluation and to some extent is open to cultural, political and religious beliefs. 76 In fact, different cultures and legal jurisdictions balance the needs of children differently (materially, morally, religiously and intellectually). In principle, no objection can be raised against these differences in interpretation, insofar as the margin of appreciation and the chosen perspective do not contravene the object and purpose of the Convention,77 nor contradict the comprehensive assessment of the child’s personality and individual characteristics.78 Secondly, in determining the child’s best interests, the intertemporal, dynamic moments in the socio-cultural context and background have to be taken into account.79 A few decades earlier, the welfare of the child was assessed significantly differently to how it is assessed today. An example is the change of opinion in recent decades regarding the physical punishment of a child as a legitimate means of education.80 12 Against this background, it is crucial to take appropriate account of the view of the child concerned when defining his or her best interests and, depending on the level of individual development and maturity, to give the child opportunities to direct participation in the matter.81 Therefore, the right to a fair hearing under Article 12 CRC is an essential outcome of the principle of child’s best interests.82 The CRC Committee rightly underlines that there is an indissoluble, significant and complementary connection between Article 3 and Article 12 CRC. While Article 3 CRC aims to ensure that children's abilities and wishes are adequately taken into account in all actions affecting them, Article 12 CRC provides the method for determining the best interests of the child. Therefore, Article 3 CRC cannot be applied correctly if the conditions and components of Article 12 CRC are not respected.83 Conversely, Article 3 CRC reinforces the functionality of Article 12 CRC by highlighting and facilitating the essential role of children

74 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 63 et seq. 75 See, e.g., R Wayne, the Best Interests of the Child: A Silent Standard – Will You Know It When You Hear it? Journal of Public Child Welfare 2 (2008), p. 33 et seq.; M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 1. 76 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 28. 77 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 89. 78 See CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 20; see also N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 142. 79 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 1. 80 See → Article 19 mn. 7. 81 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 47; A Lopatka, Importance of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 56, at 60. 82 See J Wyttenbach, in: A Pollmann/G Lohmann, Menschenrechte, 2012, p. 317, at 317; R Eichholz: Der Vorrang des Kindeswohls, 2015, p. 16 et seq. 83 Very clearly so: CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 43. See also CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 8.8; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 37. Further see → Article 12 mn. 40.

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in all matters concerning them or affecting their lives.84 The CRC Committee actually declares that any decision which does not take into account children’s views according to their age and maturity does not respect the determination of their best interests. 85 States Parties must therefore develop appropriate procedural safeguards and effective measures to ensure that children are heard and that their views are duly taken into account in the determination of their best interests.86 In sum, the Convention follows a liberal paternalism model and rejects any exclusively adult-centred societal approach in relation to children’s rights.87 In the first instance, it is usually the decision-maker, either the State authority or the parents or legal guardians, who bear the responsibility of safeguarding the best interests of the child. It is inevitable that they will be the ones who make the final decision. However, in order to ensure that the best interests of the child, rather than those of adults, are taken into account, the latter must listen to the child seriously and in a consultative manner.88 Similarly, the growing capacities and needs of the child as they develop over time 13 must be given appropriate consideration under Article 3 para. 1 CRC.89 It is clear that the best interests of an infant or toddler and those of an adolescent or young person must be ensured through different measures.90 The will and wishes of an adolescent in determining his or her best interests shall be given greater weight than the will of a young child. When children belong to certain minority groups, other factors may also be taken into account. For example, a measure seeking to protect the best interests of indigenous children is only effective when the cultural rights of the children and their needs are adequately considered (see Article 30 CRC). Therefore, indigenous children or children of an ethnic minority must be given the opportunity to participate in the determination of how their rights can best be protected in view of their culture. 91 Also, in regards to the circumcision of boys, for instance, the religious and cultural traditions of the group have to be sufficiently considered.92 It is difficult to crystallise out exactly which perspective of a temporal nature has 14 to be taken into account when determining the child’s best interests. There are current and prospective interests which can counteract each other diametrically. Thus, measures currently providing for the welfare of children, may, in the future, create negative effects, and vice versa. These medium- or long-term consequences are rather impossible to predict93 and cannot be sufficiently determined by the parents or guardians. It is doubtful whether a list of issues that are essential for the welfare of children, such as physical, emotional and educational needs94 contained in Article 3 para. 1 CRC would 84 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 74; General Comment No. 14, CRC/C/GC/14, 2013, para. 43. See also CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 37. 85 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 53. 86 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 85 et seq. See also J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 85. 87 CRC Committee, Concluding Observations: Costa Rica, CRC/C/CRI/CO/5-6, 2020, para. 14. 88 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 143. 89 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 44; see also O Klein, Fremdnützige Freiheitsgrundrechte, 2003, p. 71 et seq. Further see → Article 12 mn. 11. 90 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 49. 91 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 31. 92 For more detail see → Article 14 mn. 15. 93 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 48. 94 Thus is the proposal by M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 30 et seq.

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have provided more clarity in this respect. Conversely, it is not sufficient to merely create living conditions linked to the physical, emotional and intellectual development of a child which reflect social and age-related average expectations.95 Decisions that affect children should never be assessed on minimum standards or average expectations, but rather on best possible outcome on a case-by-case basis.96 If the child is not deemed to be presently competent to give his or her views on a matter affecting him or her, it will be necessary to consider whether he or she could be placed in an environment where he or she might become competent and affect the outcome later.97 This means that, in respect to the decisions that are not urgent in terms of child’s life, health or welfare, these decisions should in principle be deferred until the child is competent to decide what is in his or her best interests.98 15 In order to arrive at a balanced and, at the same time, best possible consideration of all relevant interests of the child with potentially conflicting interests of third parties, the CRC Committee has compiled a list of seven guidelines and elements which are intended to facilitate the States Parties to determine the best interests of the child on a case-by-case basis.99 These elements include (1) the point of view and the will of the child according to Article 12 CRC, (2) the social, cultural and personal identity of the child within the meaning of Articles 8 and 30 CRC, (3) the utmost endeavour to protect the family unit (see Articles 5, 9, 18 and 20 CRC), (4) the child's right to protection and care under Articles 19 and 32-39 CRC, (5) the special vulnerability of the child due to his or her affiliation with a particular group (child with disability, child of an ethnic minority, refugee child, child in street situations, etc.) or because of their individual situation, (6) the right of the child to health and physical integrity under Article 24 CRC, and (7) the right of the child to education and training according to Articles 18 and 28 CRC. Of course, not all elements are relevant in each case, and there may also be conflict situations between the individual issues that need to be weighed up carefully against each other.100 Also, the age and maturity of the child play an essential role in this process of consideration.101 All in all, the concept of the best interests of the child should be adjusted and defined on an individual basis, according to the specific situation of the child concerned, taking into consideration their personal context, situation and needs as well as the interests of other parties.102 However, the CRC Committee stresses that the right of the child to have his or her interests taken as a primary consideration means that the child’s interests have high priority in legislation, policy and practice and are not just one of several considerations.103 Therefore, although a careful balancing of the interests of all parties is always needed, a larger weight must be attached to what Different assessment by H Dettenborn, Kindeswohl und Kinderwille, 3rd edn. 2010, p. 49. See R Eichholz, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 197, at 200; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 3.20-3.21. 97 J Eekelaar, The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism, International Journal of Law & the Family 8 (1994), p. 42 et seq. 98 J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 86. 99 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 39, 52 et seq. See also CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 28. 100 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 80 et seq. 101 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 83 et seq. 102 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 21. See also CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 8.3. 103 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 32 a. 95

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serves the child best.104 The CRC Committee has also listed several specific measures which States Parties are required to adopt in order to ensure that children’s best interests are a primary consideration in all matters concerning them. These measures include appropriate legislative frameworks and complaint procedures, which must be coupled with data collection and the provision of information and training to professionals whose work has an impact on children.105 The CRC Committee considers that all these requirements also apply to immigration 16 law and migration policies.106 In particular, the best interests of the child should be ensured explicitly through robust, individualised procedures as an integral part of any administrative or judicial decision concerning the entry, residence or return of a child, placement or care of a child or the detention or expulsion of a parent.107 Therefore, States Parties should ensure best-interests assessments in the short, medium and long terms in the decision-making processes affecting migrant and refugee children. Such an assessment should be carried out by actors independent of the migration authorities in a multidisciplinary way and in accordance with the UN Guidelines for the Alternative Care of Children108 and other child-friendly guidelines adopted at the universal level.109 In all actions concerning children, including those in the migration context and relating to immigration control, the child’s interests have high priority and are not just one of several considerations. Therefore, a larger weight must be attached to what serves the child best. 110 The CRC Committee specifies that determination of what is the best interests of the child requires a clear and comprehensive assessment of the child’s identity, particular vulnerabilities and protection needs. Consequently, allowing the child access to the territory is a prerequisite to this initial assessment process. 111 Despite their broad scope and resource intensiveness, the measures to be taken in 17 order to ensure that children’s best interests are a primary consideration in all matters affecting them do not depend on a determinate perception of children’s best interests. Rather they call for a process whereby the consequences of actions and decisions may be more consistently taken into account. Or in other words, children’s interests should always be on the legislative, administrative, judicial and political agenda.112 In this context, the best interests of the child as mentioned in Article 3 para. 1 CRC must, in principle, be interpreted in light of the other rights and guarantees of the Convention.113 The principle of system coherence dictates that a decision cannot be in a child’s best

104 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 39; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 28. 105 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 15. 106 See CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 29. Further see → Article 22 mns. 6, 9. 107 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, paras 30, 32 b. 108 UN General Assembly Resolution 64/124, A/RES/64/124, 16 December 2009, Annex. 109 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 32. 110 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 39; General Comment No. 6, CRC/GC/2005/6, 2005, para. 86. 111 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 20. 112 J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 82. 113 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 51. See also R Eichholz, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 197, at 199.

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interests where the outcome would be contrary to another right under the CRC.114 It is the Convention itself, which imparts a balanced and restrictively formulated framework of values, rights and guarantees that contextualise the vague concept of the best interests of the child.115 Thereby, it is sufficient that the decision-makers consider the outcome on any relevant child and are able to justify as being reasonable a decision that may not necessarily accord with the child’s interests.116 In conflict situations, the child’s well-being generally shall receive more weight in order to serve the object and purpose of the Convention.117 This method is certainly not a “panacea”. It fails to provide further assistance where the balancing of conflicting rights is concerned.118 For example, it may be the case that in rural areas the right to appropriate care and education of children with disabilities may only be realised when long-term separation from parents occurs. Such a case of conflict demonstrates that the child’s best interests are to be understood holistically and interests must not be enforced at the expense of others, but a fair balancing and compensation should be sought.119 This guideline is also indicated, for example, for underage children of incarcerated parents.120 If due to the seriousness of the crime, imprisonment of the parent cannot be avoided, the CRC Committee considers that it should be decided based on the specific case-by-case constellation, with particular regard to the best interests of the child, whether the minor is housed with the parent in the prison.121 However, housing in open execution institution seems to be preferable.122 But also in a closed institution, the CRC Committee believes that child and family education measures can be taken to help children to survive the elementary crisis. 123 18 Overall, due to the concept of cultural relativity of the term “best interests of the child”, the States Parties must be granted certain discretion and leeway in the contextualisation of the child’s welfare.124 However, this discretion is not unlimited. It must not be exercised to the extent that children’s rights are thwarted. Thus, there remain cultural practices which are, under certain requirements, compatible with child welfare, such as the circumcision of boys,125 and some which are by no means compatible with the

114 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 5, 6, 32. See also P Alston/ B Gilmour-Walsh, The Best Interests of the Child: Towards a Synthesis of Children’s Rights and Cultural Values, 1996, p. 9 et seq. 115 P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 8. 116 J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 83. 117 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 48. 118 Disagreeing M Santos Pais, The United Nations Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 75, at 77. 119 Similarly, M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 36. 120 See S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung, Recht der Jugend und des Bildungswesens 2014, p. 125, at 130 et seq. 121 CRC Committee, Report and Recommendations of the Day of General Discussion on children of incarcerated parents, CRC/DGD/Report, 30 September 2011, paras 15, 33. 122 See → Article 3 mn. 9. 123 See CRC Committee, Report and Recommendations of the Day of General Discussion on children of incarcerated parents, CRC/DGD/Report, 30 September 2011, paras 12, 33, 37. 124 Rightly so, P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 8. Disagreeing G Benassi, Kindeswohlvorrang ins Grundgesetz, Informationsbrief Ausländerrecht 2011, p. 428, at 429; H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 328. 125 See CRC Committee, Concluding Observations: South Africa, CRC/C/15/Add.122, 2000, para. 33; Lesotho, CRC/C/15/Add.147, 2001, para. 43; Zambia, CRC/C/15/Add.206, 2003, paras 46 et seq.

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Convention, such as female genital circumcision.126 In contrast to male circumcision, female circumcision usually leads to considerable genital mutilation, and thus to severe damage to health and a permanent loss of sex drive.127 Therefore, the CRC Committee recalls that the best interests of the child should be a primary consideration in decisions concerning the deportation of a girl allegedly under risk of being forcefully subjected to female genital mutilation in the country of origin. Such decisions should ensure – within a procedure with proper safeguards – that the girl child will be safe and provided with care and enjoyment of rights.128 Also, the physical punishment of children, be it in the family or at school and regardless of whether it is culturally entrenched, is considered by the CRC Committee as a blatant violation of the child’s well-being, because such action has the effect of degrading and humiliating the child.129 A low minimum age of marriage for girls is also considered by the CRC Committee as endangering the best interests of the child.130 If the minimum age for girls is set lower than for boys, as is the case, for instance, in Afghanistan and Iran, a violation of Article 2 para. 1 CRC might also be present.131

III. States’ Duty to Protect the Best Interests of the Child with Regard to Legislative and Administrative Measures (Article 3 para. 2 CRC) Article 3 para. 2 CRC, whose inclusion was prompted by the Australian delegation on 19 the premise that it would meet the need to secure the rights of the child through State support to the family in need,132 focuses on the child’s need for protection and care, and serves the general safeguarding of the best interests of the child.133 The responsibility to preserve the child’s well-being lies, according to the wording of Article 3 para. 2 CRC, with the States Parties. However, States Parties must simultaneously take into account the rights and duties of parents, legal guardians, or other individuals legally responsible for the child.134 Thus, Article 3 para. 2 CRC, despite its dubious wording, expresses the idea that the rights of the child are best protected by the family supporting the child. 135 A certain inconsistency arises, however, in the fact that Article 3 para. 2 CRC does not expressly refer to the extended family as is provided for under Article 5 CRC. 136 126 CRC Committee, Concluding Observations: Senegal, CRC/C/15/Add.44, 1995, para. 24; South Africa, CRC/C/15/Add.122, 2000, para. 33. 127 For more detail see J Tobin, The Right to Health in International Law, 2011; p. 309 et seq. To the whole issue see → Article 14 mn. 15; → Article 24 mns. 26 et seq. 128 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.8.; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, paras 29 and 33. 129 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 8; General Comment No. 8, CRC/C/GC/8, 2006, para. 26. See also → Article 19 mn. 4. 130 CRC Committee, Concluding Observations: Bolivia, CRC/C/15/Add.1, 1993, para. 9; General Comment No. 20, CRC/C/GC/20, 2016, para. 40. For more detail see → Article 1 mn. 4; → Article 10 mn. 3. 131 See → Article 2 mn. 24. 132 See J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 101. 133 P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 9. 134 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 65. 135 Commission on Human Rights, Report of the Working Group, E/CN.4/L.1560/Add.14, 1981, p. 8. 136 M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 65. See → Article 5 mns. 3 et seq.

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Rather disconcerting is also the fact that Article 3 para. 2 CRC reverses, to some extent, the general relationship between the State authorities on the one hand and parents and legal guardians on the other hand. While Articles 5, 9 and 18 CRC clearly emphasise parental rights and allow State measures only in a subsidiary way, if the well-being of the child is grossly neglected by the parents, Article 3 para. 2 CRC goes in a different direction, by placing primary authority for the protection and the care of the child upon the State authorities. This is dogmatically and substantially inconsistent. Compared to immediate relatives or persons legally responsible for the child, governmental agencies and administrative authorities are less competent to define the best interests and the well-being of a child.137 Under an assumed primacy of governmental decisions, parental rights would be thwarted. To some extent, the shift in meaning performed in Article 3 para. 2 CRC can be explained by the fact that the CRC incorporates the protection of all children worldwide, and thus encompasses a very heterogeneous group of social and cultural perspectives. The needs of a child may vary depending on his or her situation. For example, the needs of a child living in street situations in a developing country may be differently assessed and prioritised from those of a homeless child in a developed country.138 Therefore, the primary purpose of Article 3 para. 2 CRC is rather to oblige the States Parties to adopt general legislative and administrative measures to safeguard the welfare of (groups of) children within its jurisdiction, also with regard to future generations.139 The protection and care referred to in Article 3 para. 2 CRC are to be understood comprehensively and not limited to certain aspects. Thus, Article 3 para. 2 CRC supplements the other rights contained in the Convention and obligates measures which do not relate directly to a specific article.140 The obligation of Article 3 para. 2 CRC is onerous and of general application and serves to fill in any remaining lacunae. Thus, if a child’s well-being is denied by virtue of an act or omission which is not specifically proscribed by the Convention, a State Party would nonetheless be obliged by this umbrella provision to take appropriate measures to counteract this situation. 141 20 In addition, Article 3 para. 2 CRC extends to the actual well-being of the child, for the protection and safeguard of which the States must take positive measures. For instance, the fact that approximately 1.5 million children live in (relative) poverty in Germany indicates that these children are still far removed from the full realisation of the prerequisites under Article 3 para. 2 CRC.142 The CRC Committee sees the extent of relative poverty in Germany as particularly critical, which mainly affects extended families, single parents, families of foreign origin and families in the Eastern federal

137 B Fateh-Moghadam, Religiöse Rechtfertigung? Die Beschneidung von Knaben zwischen Strafrecht, Religionsfreiheit und elterlichem Sorgerecht, Rechtswissenschaft 2010, p. 115, at 117. 138 Similarly, M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 67 et seq. Critical view by M Liebel, Kinderrechte – aus Kindersicht, 2009, p. 38. 139 See R Eichholz, Der Vorrang des Kindeswohls, 2015, p. 10; G Benassi, Deutsche Rechtsprechung vs. UN-Kinderrechtskonvention?, Deutsches Verwaltungsblatt 2016, p. 617, at 620 et seq. 140 See P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 9; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 3.24. 141 J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 102. 142 Federal Ministry of Labour and Social Affairs, Federal Government’s Fifth Poverty and Wealth Report of 2017, pp 5, 9 et seq.; 25 et seq. For more detail see S Schmahl, in: M Schmidt-Kessel (ed.), German National Reports on the 20th International Congress of Comparative Law, 2018, p. 483, at 484 et seq.

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States (Länder).143 It stresses that these factual inequalities should be eliminated,144 the financial support of disadvantaged families be increased so that all children growing up in economically adequate living conditions.145 The growing number of homeless children in Germany is also worrying the CRC Committee. In order to combat this phenomenon, the CRC Committee calls for the carrying out of precise research of the root causes as well as measures to ensure that children living on the street are provided with adequate food, clothing, medicine and shelter and are sufficiently protected against abuse.146 Of course, these problems cannot only be found in Germany, but also in other countries. For instance, the Eurostat surveys in 2010 and 2015 show that around 27 per cent of all children in Europe are at risk of poverty and associated social exclusion,147 giving rise to further efforts to prevent child poverty; these include, in particular, investments in early childhood education.148 In any case, authorities and decision-makers need to take into account the different kinds and degrees of vulnerability of each child in poverty or street situations, as each child is unique and each situation must be assessed accordingly.149 The asylum law and procedures of the States Parties have also been criticised by 21 the CRC Committee when considering the requirements of Article 3 para. 2 CRC. Especially, the rapid procedures in the transit area of airports are regarded as being fully incompatible with the best interests of the child.150 This view of the CRC Committee goes too far. First, no subjective claim to asylum or residence in the territory of a State can be derived from the principle of the best interests of the child or from any other provision of the Convention.151 Article 3 para. 2 CRC does not convey the child's right to a specific residence permit to a parent, neither. The well-being of the child can at best justify a priority consideration of the child's interests152 but it must, in any case, be carefully balanced with the conflicting interests of all parties and the public order with the aim of finding a suitable compromise. Even from a synopsis taken of Article 3 para. 2, Article 9 para. 1 and Article 10 para. 1 CRC, there is neither an immediate right to entry or to family reunification without preconditions, nor an unconditional primacy of the child's best interests in matters of migration policy.153 In principle, accompanied underage children share the fate of their parents with regard to the right of residence. If the parents are not entitled to reside due to a lack of fulfilling the asylum or residence requirements of the host State, it can be assumed that their minor child shares, in principle, the fate of his or her parents.154 Different consequences only apply when it is not the parent but only the child which is at risk of harm. Here, Article 22 para. 1 CRC is

CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 64 et seq. CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 50 et seq. 145 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 65. 146 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, para. 58. 147 See FRA, Annual Report 2014, p. 111; Annual Report 2016, p. 119. 148 See Recommendation of the European Commission No. 2013/112/EU on investing in children, of 20 February 2013, para. 2.2. 149 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 75 et seq.; General Comment No. 21, CRC/C/GC/21, 2017, para. 28. 150 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.43, 1995, paras 19, 33. 151 Rightly so, F Fritzsch, Neue Bleiberechte aufgrund der UN-Kinderrechtskonvention oder der EUGrundrechtecharta? Zeitschrift für Ausländerrecht und Ausländerpolitik 2014, p. 137, at 139 et seq. 152 See Higher Administrative Court Mannheim, Judgment of 17 July 2015, 11 S 164/15, para. 23. 153 See also CJEU, Judgment of 27 June 2006, Case 540/03, ECLI:EU:C:2006:429, paras 52 et seq. – Family reunification. 154 Higher Administrative Court Lüneburg, Judgment of 9 November 2010, 8 PA 265/10, para. 6. 143 144

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instructive on that it may be appropriate, in individual cases, not to subsume the child’s claim to asylum into that of his or her parents.155

IV. States’ Duties to Protect and to Fulfil the Best Interests of the Child in Regards to the Arrangement of Public and Private Bodies (Article 3 para. 3 CRC) 22

Article 3 para. 3 CRC, according to which States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform to the standards of safety and health, as determined by national or local authorities, is closely linked to Article 20, Article 25 and, in particular, to Article 18 paras 2 and 3 CRC.156 States Parties must establish standards for the institutions mentioned in Article 3 para. 3 CRC. This includes the proper training of specialised personnel and the provision of continuing education and training opportunities for children. This duty is mandatory to ensure the appropriate participation of children in all matters affecting them.157 If underage children are placed in prison with their convicted parent,158 they must have access to games and recreational facilities, early childhood and school education as well as childcare by qualified personnel.159 Furthermore, effective monitoring of the child-friendly institutional standards is necessary to prevent child abuse, since reality shows that professions referring to work with children are susceptible to infiltration by paedophiles.160 Pathological tendencies can be masked as sympathy, the intensive contact with children and the special relationship of dependence facilitates the enactment of offences. The shame experienced by the child can prevent discovery and eventual prosecution of a perpetrator. Therefore, there are various calls for an extension of the statute of limitations in cases of child abuse. From the perspective of Article 3 para. 3 CRC, it is at least necessary that the national limitation periods are of a sufficient length to allow the initiation of prosecutions after the abused child has reached the legal age.161 In sum, Article 3 para. 3 CRC leaves States Parties with a margin of discretion with respect to the form and the development of the standards required by that norm.162 In view of Articles 18, 20, and 25 CRC, which specifically consider children in institutional care, it is, however, questionable whether Article 3 para. 3 CRC is an example of overlapping human rights or whether it really has added value.

155 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 430. See also → Article 22 mn. 15. 156 CRC Committee, General Guidelines, CRC/C/58, 1996, para. 37. 157 See M Coester, Kinderschutz – Übersicht zu den typischen Gefährdungslagen und aktuellen Problemen, Familie-Partnerschaft-Recht 2009, p. 549, at 552. 158 Cf. → Article 3 mn. 9. 159 CRC Committee, Report and Recommendations of the Day of General Discussion on children of incarcerated parents, CRC/DGD/Report, 30 September 2011, paras 12, 33, 34. 160 See M Freeman, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 3, 2007, Article 3, p. 72 et seq. See also → Article 20 mn. 14. 161 For more detail see S Bitensky, Introductory Note to Council of Europe Convention on the Protection of Children against sexual exploitation and sexual abuse, International Legal Materials 49 (2010), p. 1663 et seq. 162 Critical assessment by J Eekelaar/J Tobin, Article 3, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 73, at 104 et seq.

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V. Embedding of Article 3 CRC into the System of International Human Rights Protection The principle of the best interests of the child in Article 3 CRC is taken from the 23 1959 UN Declaration of the Rights of the Child.163 With the exception of Article 24 para. 1, sentence 1 and para. 2 of the EU Charter of Fundamental Rights and of Article 4 ACRWC, which both place children's well-being and their best interests at the centre of all public and private affairs,164 the principle is not explicitly contained in any other human rights convention.165 Only Article 7 para. 2 ICRPD notes that the best interests of children with disabilities shall be a primary consideration, but limits its scope to a particular vulnerable group of children (those with disabilities). Nevertheless, the principle of the best interests of the child may be held to have 24 solidified into customary international law, since it is one of the core principles of the CRC and is also at the heart of today’s European and African human rights law. Under Article 4 ACRWC, the child’s best interests are even the primary consideration. Although the ECHR does not contain a provision similar to Article 3 CRC, the ECtHR has referred to the principle of the best interests of the child affected by a decision of the deportation of a parent who was guilty of manslaughter. It ruled that the child’s interests must be included among the criteria for deciding whether the deportation would breach the right to family life under Article 8 ECHR.166 Also, as regards the partial or full withdrawal of parental rights, the Court requires consideration of whether a fair balance has been struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent.167 In identifying the child’s best interests in a particular case, two considerations must be borne in mind: firstly, it is in the child’s best interests that his or her ties with his or her family be maintained unless the family has proved particularly unsuitable; and secondly, it is in the child’s best interests to ensure his or her development in a safe and secure environment, and a parent cannot be entitled under Article 8 ECHR to have such measures taken that would harm the child’s health and development.168 Likewise, the ECtHR underlined the need to strike a fair balance between the com- 25 peting interests of the child, those of his or her parents and the public order in relation to the medical and even life-sustaining treatment of children, within the margin of the appreciation accorded to States on such highly sensitive moral and ethical issues. How163 See → Introduction mn. 14. Further see P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 7; J Todres, Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and its Early Case Law, Columbia Human Rights Law Review 30 (1998), p. 159, at 163. 164 In detail see S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, Vol. 2, 2 nd edn. 2021, § 20 mns. 102, 107. – To the same extent as the CRC Committee, the CJEU does not consider the best interests of the child as having absolute precedence over other interests, see CJEU, Judgment of 6 June 2013, Case C-648/11, ECLI:EU:C:2013:367, paras 57 et seq. – MA, BT, DA v. Secretary of State for the Home Department; Judgment of 16 July 2015, Case C-184/14, ECLI:EU:C:2015:479, para. 46 – A./B; Judgment of 8 May 2019, Case C-82/16, ECLI:EU:C:2018:308, paras 65 et seq – KA and Others. 165 See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 45 et seq.; RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 10. 166 ECtHR, Judgment of 18 October 2006, No. 46410/99, para. 58 – Üner v. The Netherlands. 167 ECtHR, Judgment of 13 July 2000, No 25735/94, paras 48-50 – Elsholz v. Germany; Judgment of 5 December 2002, No. 28422/95, paras 48-49 – Hoppe v. Germany. 168 Clearly so: ECtHR, Judgment of 6 July 2010, No. 41615/07, para. 136 – Neulinger and Shuruk v. Switzerland; Judgment of 22 March 2018, Nos. 68125/14, 72204/14, para. 66 – Wetjen and Others v. Germany. See also → Article 9 mns. 18-19; → Article 19 mn. 7.

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ever, the best interests of the child must be paramount.169 In European Union law, since the reform brought about through the 2009 Lisbon Treaty, an increased focus on the rights of the child can be observed which goes even beyond the applicability of the scope of Article 24 of the EU Charter of Fundamental Rights.170 Accordingly, Article 3 para. 3 subpara. 2 TEU states that the promotion of the protection of children’s rights constitutes one of the objectives of the European Union. Furthermore, in respect of its relations with the rest of the world, the EU also contributes to the eradication of poverty and protection of human rights, and especially children’s rights (see Article 3 para. 5, sentence 2 TEU). Within the framework of the Common Immigration Policy, actions to combat human trafficking, in particular, the trafficking of women and children can be adopted (Article 79 para. 2 lit. d TFEU, Article 83 TFEU). Article 4 ACRWC goes even further by mandating the principle of the best interests of the child to be “the” primary consideration, thus giving it far more weight in comparison to other interests and considerations.171 Under Article 4 ACRWC, the best interests’ principle is the overriding or paramount consideration that prevails over all other factors in all actions affecting a child.172 By contrast, Article 3 CRC is satisfied with making the best interests of the child “a” primary consideration only.

Article 4 [Legal Implementation] 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. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Obligations of the States Parties to Implement the Rights Recognised in the Convention (Article 4, sentence 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Reservation of Resource Availability (Article 4, sentence 2 CRC) . . . . . . . . . . . . IV. Embedding of Article 4 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 20 30

I. Generalities 1

Article 4 CRC contains a general obligation of the States Parties to realise and implement all rights recognised in the Convention.1 The function of this provision is closely linked to the obligations of States Parties under Article 2 para. 1 CRC which requires that States Parties shall respect and ensure the rights set forth in the Convention 169 ECtHR, Judgment of 26 November2013, No. 27853/09, para. 95 – X v. Latvia; Decision of 27 June 2017, No. 39793/17, paras 105-108 – Charles Gard et a. v. The United Kingdom. 170 See H Stalford/E Drywood, Coming of Age?: Children’s rights in the European Union, Common Market Law Review 46 (2009), p. 143 et seq.; T Marauhn, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mns. 11 et seq. 171 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 142. 172 DM Chirwa, The Merits and Demerits of the African Charter on the Rights and Welfare of the Child, International Journal of Children’s Rights 10 (2002), p. 157 et seq.; E Chilemba, in: U Kilkelly/ T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 377. 1 See, e.g., CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 18 et seq.

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without discrimination of any kind.2 Article 4 CRC standardises the means by which the States Parties shall ensure the obligation under Article 2 para. 1 CRC.3 It constitutes an overarching or umbrella provision and is not intended to be read in isolation from the individual rights and guarantees to which it applies.4 The obligations under Article 4 CRC rather complement those more specific and discrete Convention rights and thus extend to the entire Convention without exception, including its substantive Optional Protocols.5

II. Obligations of the States Parties to Implement the Rights Recognised in the Convention (Article 4, sentence 1 CRC) Pursuant to Article 4, sentence 1 CRC, States Parties are obliged to undertake all 2 appropriate legislative, administrative and other measures for the implementation of the rights recognised in the CRC. First of all, the States Parties must especially ensure that the principles and provisions of the Convention are applicable and enforceable in the domestic legal order.6 This means that such appropriate measures have to be taken that are relevant to directly or indirectly advancing children’s rights in a given context.7 In that regard, the CRC Committee also urges the States Parties to withdraw their reservations to the CRC.8 Ratification of other relevant international human rights instruments is regarded as a second implementation imperative deriving from Article 4, sentence 1 CRC.9 Additionally, States Parties need to ensure, by all appropriate means, that the provi- 3 sions of the Convention are given legal effect within their domestic legal systems. In particular, it is important to ensure that domestic law reflects the “general principles” identified by the CRC Committee (Articles 2, 3, 6 and 12 CRC) in the Convention.10 A constitutional recognition of the Convention rights in the domestic legal order may be desirable, but is neither mandatory nor essential.11 The text of the CRC does not require a constitutional implementation of its provisions.12 Nevertheless, the CRC Committee stresses that it would welcome the inclusion of all rights or, at least, the core principles of the Convention in national constitutions.13 It has emphasised this demand several 2 J Todres, Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and its Early Case Law, Columbia Human Rights Law Review 30 (1998), p. 159, at 177. See also → Article 2 mns. 1 et seq. 3 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 100 et seq. 4 J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 109. 5 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 2. 6 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 1, 19 et seq. 7 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 22. 8 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 13. See also → Articles 46-54 mn. 13. 9 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 17. 10 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 22. 11 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 21; P Alston, The Legal Framework of the Convention on the Rights of the Child, in: Bulletin of Human Rights 91/2 (1992), p. 1, at p. 11. See also → Introduction mn. 31. 12 E Rossa, Kinderrechte. Das Übereinkommen über die Rechte des Kindes im internationalen und nationalen Kontext, 2013, p. 102. 13 See, e.g., CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 21. See also CRC Committee, Concluding Observations: Luxembourg, CRC/C/LUX/CO/3-4, 2013, para. 12; Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 18.

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times, for instance, in view of the German legal system, and it even warned that the Convention should be given priority over simple federal law.14 4 This constant urge of the CRC Committee to anchor children's rights in the constitution or to provide any other legal mechanism that gives children's rights priority over simple statute law has, however, no basis in the Convention text or in any other international obligation.15 Insofar as the proponents of the introduction of a child rights clause in constitutional law invoke the obligation of the States Parties for the implementation of the rights recognised in the Convention pursuant to Article 4, sentence 1 CRC, 16 they are subject to a misunderstanding. The wording of Article 4, sentence 1 CRC, which states that “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention”, establishes indeed an implementation mandate for the Contracting States, but says nothing about how this mandate is to be fulfilled. States Parties rather enjoy a wide margin of discretion in determining what measures will be appropriate for the purpose of securing the enjoyment of the rights under the CRC within their jurisdiction.17 Such an implementation clause giving leeway to the Contracting States how to fulfil their international obligations can also be found in other human rights treaties, in particular in the equivalent provisions of Article 2 para. 1 ICCPR and Article 2 para. 1 ICESCR. The drafting history clearly indicates that the inclusion of Article 4 CRC into the Convention was a deliberate attempt to adapt and fuse the general obligation provisions under the ICCPR and ICESCR in a way that did not lead to a substantive difference of States’ duties imposed and of the protection offered under these general human rights instruments.18 The obligations under the twin International Covenants are also silent about the methods to be taken when implementing human rights obligations into the domestic legal order. Likewise, Article 4, sentence 1 CRC only clarifies that the Contracting States are required to conform their national law statutes to the guarantees laid down in the CRC. States bear the burden of demonstrating that the measures they have adopted are appropriate for the aim and purpose of the Convention and they should submit evidence of the outcomes obtained for children as a result of the measures adopted to implement their rights.19 Nevertheless, neither an obligation to provide children's rights in the national legal order with constitutional rank nor any other norm-hierarchical priority requirement arises from this. An appropriate and effective implementation of children's rights can certainly – and in full compliance with the text of the Convention – be achieved on a simple law level.20 Against this background, it is suggested that with its unequivocal demand to implement the Convention rights into the constitution, the CRC

14 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.43, 1995, para. 21; CRC/C/15/Add.226, 2004, paras 9 et seq.; CRC/C/DEU/CO/3-4, 2014, paras 9 et seq. 15 Rightly so: H-G Dederer, in: A Uhle (ed.), Kinder im Recht, 2019, p. 287, at 306; G Kirchhof, Die Kinderrechte des Grundgesetzes, Neue Juristische Wochenschrift 2018, p. 2690, at 2691. 16 See, e.g., G Benassi/R Eichholz, Grundgesetz und Kinderrechte, Deutsches Verwaltungsblatt 2017, p. 614, at 615. 17 See J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 111. See also CESCR Committee, General Comment No. 3: The Nature of States Parties’ Obligations, E/1991/23, 14 December 1990, para. 4, in regards to the parallel provision in Article 2 para. 1 ICESCR. 18 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/WG.1/CRP/1, 1989, paras 17-20; E/CN.4/1989/48, 1989, paras 171-175. See also J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 109. 19 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 24; J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 111 and 112. 20 S Schmahl, Verpflichtet das Völkerrecht zur Einführung von Kinderrechten ins Grundgesetz? Ein Statement in 18 Thesen, Recht der Jugend und des Bildungswesens 2020, p. 5, at 12-13.

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Committee is acting beyond its mandate.21 The reproach of acting ultra vires can only be rebutted by the fact that the CRC Committee’s Concluding Observations generally tend to offer programmatic guidance rather than the legal interpretation of the meaning of Article 4 CRC.22 Yet, States Parties must, of course, ensure clarity with respect to the status of the 5 Convention within domestic law. The CRC Committee is concerned with the effect of specific pieces of legislation on children and whether the cumulative impact of the legislative measures adopted by a State across various sectors really contributes to the effective implementation of the Convention in practice.23 Therefore, the CRC Committee advocates that States Parties ideally adopt a unified statute that comprehensively addresses the individual rights of children.24 All measures seeking to enforce the rights of children must further offer a child-oriented perspective, be sufficiently clear and understandable, and be accessible to the public.25 All areas of law should reflect the principles and standards of the CRC.26 Common customary law and the interpretation of religious law must also be brought into conformity with the Convention rights.27 In this context, the realisation of the rules contained in Article 2, Article 3, Article 6 and Article 12 CRC enjoy a special precedence, since these articles form the “general principles” of the Convention.28 In accordance with Article 27 VCLT, States Parties may not free themselves of their 6 international duties by referring to their specific federal separation of powers or to provisions of their internal law. Where a State’s jurisdiction encompasses federal States, the State must ensure that federal States observe the Convention rights uniformly. 29 In order to ensure and enforce this uniformity, a coordination system should be established to link the various organisational apparatus of the individual federal States.30 In any process of devolution, States Parties have to make sure that the devolved or local or regional authorities do have the necessary financial, human and other resources, such as technological and organisational ones, to effectively discharge the responsibilities for the effective implementation of the Convention.31 The CRC Committee further considers a coordination system between ministries and between the governments at all regional levels as essential.32 It would not be practical to appoint only a specific institution of the central State with the authority to enforce children’s rights; such enforcement should 21 See S Schmahl, in: I Richter/F Wapler/L Krappmann (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 55, at 63-64. Similar deliberations by H-G Dederer, in: A Uhle (ed.), Kinder im Recht, 2019, p. 287, at 306. 22 See R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 47 et seq. 23 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 21. See also J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 115. 24 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 22; see also O Cvejić Jančić, in: eadem (ed.), The Rights of the Child in a Changing World, 2016, p. 1, at 7. 25 CRC Committee, Concluding Observations: Libya, CRC/C/15/Add.209, 2003, para. 8 c. 26 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 22. 27 CRC Committee, Concluding Observations: Libya, CRC/C/15/Add.209, 2003, para. 8 b; Holy See, CRC/C/VAT/CO/2, 2014, para. 14. 28 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 12, 22; General Comment No. 19, CRC/C/GC/19, 2016, paras 40 et seq. 29 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 20, 40 et seq. 30 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 27; see also CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 13 et seq. 31 CRC Committee, Day of General Discussion on Resources for the Rights of Children – Responsibility of States, 2007, para. 24; General Comment No. 5, CRC/GC/2003/5, 2003, para. 40; General Comment No. 21, CRC/C/GC/21, 2017, para. 20. 32 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 37.

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rather be the responsibility of all institutions and levels of government. In the view of the CRC Committee, the establishment of a special unit only makes sense when this is done to coordinate the different institutions and to combine efforts at all levels, including regional and local levels.33 In relation to Madagascar, for instance, the CRC Committee has been very clear in expressing its concerns that there is no single government entity responsible for overall coordination of the policies, laws and programmes relating to children’s rights. Although there exist some specific sectoral coordination forums, the CRC Committee holds these mechanisms to be inadequate to ensure effective and comprehensive coordination of implementation of children’s rights across all sectors and between national and regional levels.34 7 In addition, States Parties must continuously and comprehensively review the compatibility of their whole domestic legislation and related administrative practice with the rights set forth in the Convention.35 This process of review must not only be retrospective but must be integrated into the process of law-making to ensure that new legislation is also in full compliance with the Convention.36 The child-friendly review of the national legal order, including administrative practice, is to cover both future and current laws, policies and strategies as well as related administrative practice. 8 Responsible for the mandatory self-monitoring mechanism of the States Parties are regularly the relevant competent ministries or departments of the State, for instance, the ministries of family affairs, health or education. However, the CRC Committee has stressed that other ministries or departments such as those concerned with finance, employment and defence also take decisions that have an impact on children’s rights.37 The CRC Committee has conceded that it is beyond its mandate to prescribe detailed arrangements appropriate for very different systems of government. 38 It, however, regularly endorses the idea of a special unit or body with responsibility for reporting to the government about the measures being taken within a State to ensure the enjoyment of children’s rights.39 The CRC Committee explicitly regrets that there are, in several countries, no central mechanisms to coordinate and monitor the implementation of the Convention among its various levels of government.40 It should not only be the task of one ministry to ensure that children's rights are respected. The monitoring should rather be a cross-sectional task that shall be under the responsibility of all ministries, all levels of government and between governments and civil society.41 Mainstreaming children’s rights and monitoring the implementation of the CRC should therefore, according to the CRC Committee, be coordinated by a central body which also networks, if necessary,

33 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 39; see also CRC Committee, Concluding Observations: Cabo Verde, CRC/C/CPV/CO/2, 2019, paras 9-10; Bosnia and Herzegovina, CRC/C/BIH/CO/5-6, 2019, paras 9-10. Further see M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 50 et seq. 34 CRC Committee, Concluding Observations: Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 10. 35 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 18. See also M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 24 et seq., 48 et seq. 36 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 18. 37 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 37. 38 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 38. 39 CRC Committee, Concluding Observations: Tonga, CRC/C/TON/CO/1, 2019, para. 16. 40 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 61; Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 13 et seq. 41 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 27. See also J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 49.

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the regional and federal levels with the State level.42 This body should engage with all sectors of society in order to contribute to the realisation of children’s rights. In addition to engaging with private service providers working with children, States Parties shall also work closely with NGOs and the civil society in the widest sense.43 They should, for instance, provide NGOs with non-directive support and enable popular participation and public scrutiny of government policies regarding children.44 Against this background, the CRC Committee remains deeply concerned about reports of the arbitrary detention and enforced disappearance of human rights defenders, including those working on children’s rights, and the difficulties faced by civil society organisations in obtaining long-term registered status in Rwanda.45 Moreover, the CRC Committee emphasises the need for States Parties to adopt 9 measures to monitor the implementation of children’s rights by independent monitoring systems.46 Although self-monitoring and evaluation is, in principle, an obligation for governments, States Parties shall facilitate independent monitoring mechanisms. The CRC Committee considers that an independent monitoring body (e.g., a child inspector or a similar independent children’s rights body) should be established, which is authorised to receive individual complaints from children and to raise complaints against the State.47 Furthermore, self-monitoring activities should be complemented by additional studies of independent institutions such as parliamentary committees, national human rights institutions, NGOs, academia and youth groups.48 The CRC Committee also stresses the function of independent ombudsmen, national monitoring institutions, child rights councils and children commissioners as considerably important,49 and calls for their constitutional, or at least statutory, implementation.50 Although there is no explicit obligation imposed on States Parties to establish such positions, they represent an example of an appropriate measure that can be taken by a State under Article 4, sentence 1 CRC.51 This is all the more so, since the CRC Committee regularly refers in this regard to the “Riyadh Guidelines” adopted by the UN General Assembly in 199052 and to the “Paris Principles” adopted in 1993.53 The CRC Committee has also established minimum standards which provide guid- 10 ance for the establishment, composition, methods of operation and responsibilities of 42 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.43, 1995, para. 14, and CRC/C/15/Add.226, 2004, paras 11 et seq.; CRC/C/DEU/CO/3-4, 2014, para. 14. See also CRC Committee, Concluding Observations: Cabo Verde, CRC/C/CPV/CO/2, 2019, para. 10. 43 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 58. See also CRC Committee, Concluding Observations: Botswana, CRC/C/BWA/CO/2-3, 2019, para. 17. 44 CRC Committee, Day of General Discussion on the Private Sector as a Service Provider and its Role in Implementing Children’s Rights, 20 September 2002, CRC/C/121, para. 8; General Comment No. 5, CRC/C/GC/2003/5, 2003, para. 6; General Comment No. 16, CRC/C/GC/16, 2013, para. 59. 45 CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/5-6, 2020, para. 13. 46 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 45 et seq. 47 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 15 et seq.; CRC/C/DEU/CO/3-4, 2014, paras 17 et seq. See also N Dethloff/A Maschwitz, Kinderrechte in Europa – wo stehen wir? Familie-Partnerschaft-Recht 2012, p. 190, at 194. 48 CRC Committee, General Comment No. 2, CRC/GC/2002/2, 2002, paras 1 et seq.; General Comment No. 5, CRC/GC/2003/5, 2003, paras 18, 46; General Comment No. 21, CRC/C/GC/21, 2017, para. 21. 49 See, e.g., CRC Committee, General Comment No. 2, CRC/GC/2002/2, 2002, paras 1, 6; Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, paras 19 et seq. 50 CRC Committee, General Comment No. 2, CRC/GC/2002/2, 2002, para. 8. See also CRC Committee, Concluding Observations: Slovenia, CRC/C/SVN/CO/3-4, 2013, paras 18 et seq.; Canada, CRC/C/CAN/CO/3-4, 2012, para. 23; New Zealand, CRC/C/NZL/CO/5, 2016, para. 11. 51 J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 127. 52 See UN General Assembly Resolution 45/112, A/RES/45/112, 14 December 1990. 53 See UN General Assembly Resolution 48/134, A/RES/48/134, 20 December 1993.

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such national human rights institutions.54 In its General Comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child, the CRC Committee underlines the necessity of establishing such independent monitoring bodies. It refers to the implementation clause of Article 4 CRC, although this provision does not explicitly demand the establishment of independent human rights institutions. However, according to the CRC Committee, every State Party needs such an institution able to independently and effectively monitor, promote and protect children’s rights.55 These institutions should have broad mandates in relation not only to the State authorities at all federal, regional and local levels, but to all relevant public and private entities, bearing in mind that a wide range of duty-bearers are responsible for implementing children’s rights.56 They should further contribute independently to the reporting processes under the CRC and monitor the integrity of government reports to the CRC Committee and the ensuing implementation of the Committee’s views in domestic law and administrative practice.57 The demands of the CRC Committee have recently been supported by the Venice Commission of the Council of Europe.58 Self-monitoring national bodies performing child rights-related functions cannot be seen as wholly autonomous because they are regularly established and funded by the government. Thus, the most notable advantage that children’s rights councils or similar semi-autonomous institutions on children’s rights have over the ministerial coordinating bodies lies in the fact that they are established specifically to exercise interdepartmental or inter-ministerial coordination functions, to give support and criticise policy-making, to provide advice giving, advocacy for children’s rights and awareness-raising for children’s issues.59 11 The duty to ensure compliance with the Convention establishes a direct obligation incumbent on the Contracting States. However, this duty contains a further obligation upon States Parties to ensure that non-governmental or private service providers, such as multinational corporations or independent educational private actors as well as all other actors working with or for children, act in accordance with the provisions of the Convention. Article 4 CRC thus creates indirect obligations for non-State actors. 60 The transfer of powers to private service providers or private institutions must not lead to a reduction of protection below the level required by the CRC.61 The CRC Committee highlights that all the provisions of the Convention are to be respected in legislation and policy development, including the private and business sector.62 While the implementation is primarily the responsibility of States Parties, the duty to respect, 54 For more detail see J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 58 et seq.; G Lansdown, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 495 et seq. 55 CRC Committee, General Comment No. 2, CRC/GC/2/2002, 2002, para. 7. 56 CRC Committee, General Comment No. 2, CRC/GC/2/2002, 2002, para. 10. See also CRC Committee, Concluding Observations: Cook Islands, CRC/C/COK/CO/2-5, 2020, para. 14. 57 CRC Committee, General Comment No. 2, CRC/GC/2/2002, 2002, para. 20. For more detail see I Boerefijn, in: Y Haeck et al. (eds.), The Realisation of Human Rights: When Theory Meets Practice, 2014, p. 439 et seq.; V Sedletzki, in: T Liefaard/J Sloth-Nielsen (eds.), 25 Years of CRC: Taking stock and Looking Ahead, 2016, p. 166 et seq. 58 Venice Commission, Opinion No. 713/2013, of 24 March 2014, CDL-AD (2014)005, paras 124 et seq., 146. 59 See, e.g., CRC Committee, Concluding Observations: Sudan, CRC/C/SDN/CO/3-4, 2010, para. 12. 60 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 43, 56; General Comment No. 15, CRC/GC/C/16, 2013, para. 8; General Comment No. 21, CRC/C/GC/21, 2017, para. 15. See also CESCR Committee, General Comment No. 14, E/C.12/2000/4, 2000, para. 42, with respect to Article 2 para. 1 ICESCR. 61 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 44. 62 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 8.

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to ensure and to fulfil the rights of children extends in practice beyond the State and State-controlled services. Therefore, the States Parties are demanded to enact laws and policies directed to private institutions, parents, wider families and other non-State services working with and for children.63 In summary, the CRC Committee requires that States Parties must take appropriate measures to ensure that the activities and operations of business enterprises and other non-State actors do not adversely impact on children’s rights, create an enabling and supportive environment for non-State actors to respect children’s rights and ensure access to an effective remedy for children whose rights have been infringed by a business enterprise or a private service provider.64 Yet, the CRC Committee’s understanding of the relationship between children’s rights 12 and the private sector is not confined to an adversarial paradigm in which the private sector is viewed only as a threat to children’s rights.65 On the contrary, the CRC Committee has recognised that enterprises and non-profit organisations can play a pivotal role in the provision of resources and services that are critical to the enjoyment of children’s rights.66 Given the increase in the global phenomenon of privatisation, it is important to underline that the CRC Committee has made it clear that enabling the private sector to provide services and run institutions for children, in particular with regard to the health sector, does not in any way exempt or lessen the States’ obligation and responsibility to ensure for all children within their jurisdiction the full recognition and realisation of all rights in the Convention.67 Therefore, the States Parties need to work closely with NGOs in the widest sense while respecting their autonomy.68 Furthermore, where a State Party considers that privatisation could play a role in securing a right like the right to health, the CRC Committee recommends that this decision must be preceded by a comprehensive and transparent assessment of the political, financial and economic implications and the possible limitations of this process of the right to health for children.69 Thus, while privatisation is not incompatible with the requirement that States Parties must take appropriate measures to secure children’s rights under Article 4, sentence 1 CRC, this practice must be subject to significant conditions in order to ensure full implementation of the rights set forth in the Convention.70 According to the CRC Committee, it follows implicitly from Article 4, sentence 1 13 CRC that States Parties must adopt or maintain legal remedies to redress or sanction violations of a child’s right.71 This obligation is, in principle, known from other human rights treaties (see, e.g., Article 2 para. 3 ICCPR, Article 13 ECHR). In the case of children’s rights, such a requirement to offer legal remedies to redress violations is, however, not without problems, since, depending upon the level of their development and maturity, a child’s pursuit of their own rights can be difficult. Reference to enforcement of the child’s rights by proxy through parents or legal guardians, is especially dysfunctional 63 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 52. 64 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 5. 65 J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 119. 66 See CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 33. 67 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 4; General Comment No. 16, CRC/C/GC/16, 2013, para. 25. See also CESCR Committee, General Comment No. 24 on State obligations under the ICESCR in the context of business activities, E./C.12/GC/24, 2017, para. 22. 68 CRC Committee, General comment No. 5, CRC/GC/2003/5, 2003, para. 58. 69 CRC Committee, Day of General Discussion on the Private Sector as a Service Provider and its Role in Implementing Children’s Rights, 20 September 2002, CRC/C/121, para. 11; General Comment No. 16, CRC/C/GC/16, 2013, paras 78 et seq. 70 J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 121. 71 CRC Committee, General Comment No. 2, CRC/GC/2002/2, 2002, paras 13 et seq.; General Comment No. 5, CRC/GC/2003/5, 2003, para. 24; General Comment No. 21, CRC/C/GC/21, 2017, para. 22.

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when the child wishes to enforce rights against their parents or guardians. Therefore, the CRC Committee calls for the enactment of effective child-sensitive procedures for children and specially trained process assistants, so that the child and, if necessary, his or her counsellor or assistant, may assert the child’s rights, as the case may be, against the parents or guardians.72 Such cases make necessary access to child-friendly information, advice, representation and independent complaints procedures and also to the courts with adequate legal advice (see Articles 12 and 40 CRC). Where rights have been violated, there must be a proportional redress and an appropriate reparation including compensation. Where necessary, further measures to promote physical and psychological recovery, rehabilitation and reintegration must be taken, as required by Article 39 CRC.73 The CRC Committee emphasises that children’s rights must be regarded as justiciable. It is therefore essential that domestic law sets out entitlement in sufficient detail to enable remedies for non-compliance to be effective. 74 14 When implementing and enforcing children’s rights in the national legal order, the States Parties are not limited to the adoption of legislative or administrative measures. It follows from the open wording (“other measures”) in Article 4, sentence 1 CRC, which ensures consistency with the open-ended formulation in Article 2 para. 2 ICCPR and in Article 2 para. 1 ICESCR,75 that the list of measures to be taken is non-exhaustive. It captures any appropriate measure, such as those of a judicial, economic or social nature, that contributes to the implementation of children’s rights.76 15 Under the topic of “other measures”, the CRC Committee has repeatedly welcomed and recommended that States Parties develop national strategies or action plans for the practical and sustainable implementation of the Convention rights in their entirety.77 These strategies and plans should be adapted to the particular circumstances of each State and developed through a consultative process, taking into account the previous recommendations contained in Concluding Observations of the CRC Committee emanating from periodic State reports.78 A national strategy may further be supplemented by national, area-specific action plans which follow specific, individual objectives, for instance in the field of education.79 A national strategy may establish priorities, but is not permitted to neglect any other obligations stipulated by the Convention. Special attention should be given to identifying and giving priority to marginalised and disadvantaged groups of children. Moreover, national action plans and strategies should be endorsed at the highest level of government.80 Among the advantages the CRC Committee obviously sees in the adoption of national strategies and action plans is improved accountability, since governments commit to certain time-bound objectives, enhanced

72 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 24. In a similar vein see also the Guidelines of the CoE Committee of Ministers on child-friendly justice, 17 November 2010, IV. D. 2, para. 37. 73 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 24. See also O De Schutter, International Human Rights Law, 3rd edn. 2019, p. 812-813. 74 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 25. 75 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/WG.1/CRP.1, 1989. 76 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 21. Similarly, with regard to Article 2 para. 2 ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 2 mn. 61. 77 See, e.g., CRC Committee, Concluding Observations: Tuvalu, CRC/C/TUV/CO/1, 2013, paras 10 et seq.; Azerbaijan, CRC/C/AZE/CO/3-4, 2012, paras 13 et seq.; Turkey, CRC/C/TUR/CO/2-3, 2012, paras 14 et seq. 78 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 29. 79 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 32. 80 CRC Committee, General Comment No. 5, CRC/GC/2003/5, paras 31, 33; J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 49.

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dissemination about the States Parties’ international obligations, and improved coordination across different branches of government.81 The national strategies or actions plans need to be updated at regular intervals 16 and shall be based on a child impact assessment and on current data collections. A child impact assessment involves an analysis being undertaken as to the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights.82 The CRC Committee encourages States Parties to adopt such a strategy as a means of promoting the visible integration of children into policy-making.83 The collection and evaluation of data should differentiate between the different age groups of children and the different status of children.84 In the view of the CRC Committee, the data collection should be sorted and differentiated according to the sex and age of the children and, as the case may be, whether they live in a rural or urban environment or in street situations.85 Special attention should be paid to the most vulnerable groups, e.g., children with a migration or refugee background.86 States Parties should, for instance, develop a systematic rights-based policy on the collection and public dissemination of qualitative and quantitative data on all children in the context of international migration in order to inform a comprehensive policy aimed at the protection of their rights. 87 In sum, collection of sufficient and reliable data on children, disaggregated by nationality, migration status, gender, age, ethnicity, disability and other statuses, to enable identification of and monitor discrimination, including multiple and intersectional discrimination, and/or disparities in the realisation of rights, is regarded as an essential part of implementation by the CRC Committee.88 The CRC Committee’s insistence upon the collection of such information on different groups and status of children can be defended to the extent that it is directed towards identifying those groups of children for whom appropriate measures, policies and practices shall be adopted to secure their rights.89 However, this approach necessitates two major caveats. First, the comments and recommendations of the CRC Committee generally fail to acknowledge the significant resources, both financial and human, required by States Parties to acquire such disaggregated data and to valuate data sensibly in order to implement the results

81 See CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 27-39. See also O De Schutter, International Human Rights Law, 3rd edn. 2019, p. 570. 82 C Corrigan, Child Impact Statements: Protecting Children’s Interest in Policy and Provision? Journal of Children’s Services 2 (2007), p. 30 et seq. 83 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 47. See also CRC Committee, Concluding Observations: Monaco, CRC/C/MCO/CO/2-3, 2013, para. 13 a; Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 7 b; Federated States of Micronesia, CRC/C/FSM/CO/2, 2020, para. 16. 84 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 37. In relation to migrants and refugee children see further CRC Committee, Day of General Discussion on the Rights of All Children in the Context of International Migration, 2012, paras 63 et seq. 85 See, e.g., CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, paras 23, 34; Concluding Observations: Cabo Verde, CRC/C/CPV/CO/2, 2019, para. 14. As regards the “pros” and “cons” with respect to the collection of situation-disaggregated and gender-disaggregated data see A Kron, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 114, at 136-137. 86 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 17 et seq.; Germany, CRC/C/DEU/CO/3-4, 2014, para. 16. 87 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 16. 88 See, e.g., CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 13; General Comment No. 5, CRC/GC/2003/5, 2003, para. 48; General Comment No. 20, CRC/C/GC/20, 2016, para. 37 c; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 16. 89 See O De Schutter, International Human Rights Law, 3rd edn. 2019, p. 585.

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gained in meaningful indicators, benchmarks, policies and strategies.90 Second, the CRC Committee does not take into account that any collection of data on part of the State authorities might result in an infringement to the child’s right of private life and data protection, and might ultimately lead to a segregation of society. 17 A significant proportion of the guarantee of children’s rights requires the development of awareness-raising in respect of the rights contained in the Convention.91 States Parties must therefore take appropriate measures to stimulate and inspire the political, social, cultural and moral commitment among their population to accept the idea that children are entitled to rights and that the States Parties have an obligation to protect these rights.92 Child-related institutions such as schools are particularly called upon to continuously raise awareness of the rights enshrined in the CRC. The child’s status as a bearer of inalienable human rights and the principles of the Convention should be appropriately imparted to children and their parents or guardians through school lessons and parenting classes.93 Quite often, the CRC Committee considers the dissemination and publication of the Convention in the Contracting States to be insufficient.94 States Parties should take more action to attract attention to the CRC and other human rights conventions; this applies, in particular, to school instruction and educational curricula at all levels.95 Asylum seekers, refugees and ethnic minorities should also be taught about the Convention rights. For this purpose, occupational groups working for and with children of these groups, such as judges, lawyers, administrators, teachers, home and health staff, should be given child-specific training.96 18 Furthermore, the implementation mandate under Article 4, sentence 1 CRC includes, according to the CRC Committee, States Parties’ obligation to develop training and capacity-building for all those involved in the implementation process such as government officials, parliamentarians and members of the judiciary, as well as for all those working with and for children, such as community and religious leaders, social workers, teachers and other professionals. The aim consists of encouraging the named persons to actively respect all provisions of the CRC.97 Child-specific and child-friendly training needs to be structured, on-going and should be regularly reviewed for effectiveness and impact. 98 19 Finally, in regards to the implementation of the rights set forth in the Convention and in light of the indivisibility and interdependence of human rights, regardless whether

90 Rightly so, J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 124. 91 P Alston, The Legal Framework of the Convention on the Rights of the Child, in: Bulletin of Human Rights 91/2 (1992), p. 1, at 1. 92 See, e.g., CRC Committee, Concluding Observations: Federated States of Micronesia, CRC/C/FSM/CO/2, 2020, paras 19-20. Further see T Kaime, “Vernacularizing” the Convention on the Rights of the Child: Rights and Culture as Analytic Tools, International Journal of Children’s Rights 18 (2010), p. 637 et seq. 93 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 53 et seq. See also → Article 29 mn. 5. 94 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 19; Cabo Verde, CRC/C/CPV/CO/2, 2019, paras 17-18; Botswana, CRC/C/BWA/CO/2-3, 2019, paras 15-16; Tonga, CRC/C/TON/CO/1, 2019, paras 17-18. 95 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.43, 1995, para. 26; CRC/C/15/Add.266, 2004, para. 20; CRC/C/DEU/CO/3-4, 2014, para. 20 a. See also CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 53. Further see → Article 29 mn. 5. 96 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 19 et seq.; CRC/C/DEU/CO/3-4, 2014, para. 20 b. 97 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 53. 98 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 52.

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they belong to the first or second generation (dimension) of human rights,99 the CRC Committee has considered it a matter of urgency that States Parties also accede to the two substantive Optional Protocols to the CRC, namely OPAC and OPSC.100 Moreover, according to Article 41 CRC, States Parties, through their national law, are free to introduce or maintain more favourable provisions and more comprehensive rights for children than those offered in the Convention.101 Since Article 4, sentence 1 CRC emphasises that the implementation of the Convention is a cooperative exercise, the CRC Committee also stresses that the Convention should form the framework for international development assistance related directly or indirectly to children.102

III. Reservation of Resource Availability (Article 4, sentence 2 CRC) Under Article 4, sentence 2 CRC, with regard to economic, social and cultural rights, 20 States Parties shall undertake such measures to the maximum extent of their available resources. Thus, Article 4, sentence 2 CRC explicitly differentiates between civil and political rights on the one hand, and economic, social and cultural rights on the other, without revealing exactly which rights belong to which group.103 Although there might be some overlaps between these two dimensions of rights, 104 their classification is crucial for international human rights protection, since economic, social and cultural rights are only to be ensured to the extent that financial capacity and resource availability allow.105 The original Polish draft did not distinguish between the two categories of rights 21 and made no reference to the availability of resources.106 Only at the first reading, the implementation of the rights enshrined in the Convention were subjected to available resources but did not actually make any distinction between the two sets of rights. 107 It was originally planned that all rights of the Convention should be subject to available resources.108 However, this would have led to a significant weakening of human rights protection under the CRC in comparison to other international human rights instruments such as the ICCPR and the ECHR, which contain no such reservations for civil and political rights (see Article 2 para. 2 ICCPR, Article 1 ECHR).109 With this in mind, the States’ representatives during the technical review of the draft have finally adopted a resource reservation attached only to economic, social and cultural rights, in parallel See → Introduction mn. 35. CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 17. 101 See → Article 41 mn. 1. 102 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 61; General Comment No. 15, CRC/C/GC/15, 2013, para. 86. 103 See also P Alston, The Legal Framework of the Convention on the Rights of the Child, in: Bulletin of Human Rights 91/2 (1992), p. 1, at 11; J Todres, Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and its Early Case Law, Columbia Human Rights Law Review 30 (1998), p. 159, at 179. 104 See M Bossuyt, International Human Rights Protection, 2016, p. 15-17. 105 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 103. 106 See Commission on Human Rights, Note verbale of the Polish People's Republic, E/CN.4/1349, 1980. 107 Commission on Human Rights, Report of the Working Group, E/CN.4/1988/WG.1/WP.a/Rev.1, 1988. 108 M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 19. 109 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/WG.1/CRP/1, 1989. 99

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to Article 2 para. 1 ICESCR.110 Civil and political rights contained in the CRC are not subject to the availability of State resources but require immediate implementation. 111 The CRC Committee rightly emphasises that its statements on economic, social and cultural rights and the corresponding State obligations to ensure progressive realisation and maximum available resources, are without prejudice to obligations that are immediately applicable according to international law.112 This is the case for all civil rights which pose the States Parties under immediate duties not to interfere with the enjoyment of the rights, as is the case, for instance, with the rights laid down in Articles 13 to 16 CRC. Also, the Third Optional Protocol to the CRC on a Communications Procedure (OPIC)113 takes the distinction in Article 4, sentence 2 CRC into account by stipulating that, where individual complaints allege infringement of economic, social and cultural rights, the CRC Committee has a limited amount of discretion with regard to the States’ obligations to protect and fulfil the right in question.114 In contrast, with regard to civil rights, the CRC Committee has regularly no discretion when the duty to respect human rights is at stake. 22 Despite this divisive classification of rights in Article 4 sentence 2 CRC, the CRC Committee has increasingly focused attention on the indivisibility and interdependence of all human rights. Given the indivisibility and interdependence of human rights, Convention rights may not be considered in isolation, but must be understood holistically and in a cross-cutting manner.115 All the rights and guarantees enshrined in the Convention are, in the view of the CRC Committee, immediate obligations on States Parties. In reference to the tripartite typology of international human rights,116 States Parties should respect, protect and fulfil children’s rights.117 This means that States Parties are under immediate duties not to interfere with the enjoyment of directly applicable civil and political rights, and to take steps to prevent third parties from interfering with the enjoyment of such rights. In that latter regard, it is certainly to acknowledge that the effective enjoyment of all rights, including civil and political rights, may require the allocation of, at least, a certain level of resources in order to protect a child from treatments that amount to an infringement of rights administered by a private individual.118 Also, with regard to economic, social and cultural rights, the CRC Committee has made clear 110 Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 173 et seq. See also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 103; M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 20 et seq., para. 53 et seq. 111 P Alston, The Legal Framework of the Convention on the Rights of the Child, in: Bulletin of Human Rights 91/2 (1992), p. 1, at 10; J Todres, Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and its Early Case Law, Columbia Human Rights Law Review 30 (1998), p. 159, at 178. See also, more recently: CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 65. 112 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 29. 113 See → Introduction mn. 7. 114 See Article 10 para. 4 OPIC. Further see → Individual Communications Procedure mn. 5. 115 See M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 16 et seq. See also CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 13; Concluding Observations: Australia, CRC/C/AUS/CO/5-6, 2019, paras 4-5. 116 On this tripartite model of human rights in general see O De Schutter, International Human Rights Law, 3rd edn. 2019, p. 292 et seq.; W Kälin/J Künzli, The Law of International Human Rights Protection, 2009, p. 96-120; T Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in: L Henkin (ed.), The International Bill of Rights, 1981, p. 77. 117 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 3; General Comment No. 16, CRC/C/GC/16, 2013, paras 26 et seq. 118 Rightly so, J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 130 et seq.

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that it regards the “protect and fulfil” analytical tool as applying also to this kind of rights.119 The CRC Committee considers the enjoyment of economic, social and cultural rights as inseparable from civil and political rights, especially since the survival and the development of the child under Article 6 para. 2 CRC depends mainly on economic and social rights.120 Therefore, the CRC Committee suggests that economic, social and cultural rights are equally justiciable.121 This view is in line with the recent rulings by the Inter-American Court of Human Rights. It, too, declares economic, social and cultural rights enshrined in the ACHR to be justiciable in the same way as civil and political rights.122 Nevertheless, Article 4, sentence 2 CRC reflects the realistic view that the lack of 23 financial and other resources in some States could hinder the full implementation of economic, social and cultural rights.123 Therefore, the Convention does not demand an “obligation of result” with regard to the implementation of economic, social, and cultural rights but rather an “obligation of conduct”. However, Article 4, sentence 2 CRC introduces a concept of “progressive realisation”, which means that States Parties should move as expeditiously and effectively as possible towards the full realisation of economic, social and cultural rights.124 This is so, even if the progressive obligation in Article 4, sentence 2 CRC is not formulated as clearly as in the parallel provision of Article 2 para. 1 ICESCR.125 The States Parties must demonstrate that they have exhausted their maximum available resources 126 and, if necessary, that they are performing measures of international cooperation.127 In any case, States Parties remain subject to an ongoing burden to remain actively seized of ways in which they can mobilise the resources required to implement children’s rights.128 The CESCR Committee highlights that economic, social and cultural rights of vulnerable groups even form a part of general international law,129 as evidenced in fact by the near-universal ratification of the CRC. This means, firstly, that States Parties enjoy a level of discretion in deciding which 24 measure will be appropriate within their jurisdiction for the purposes of ensuring 119 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 27-28. Different assessment by A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 250. 120 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 30. 121 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 6, 25; General Comment No. 13, CRC/C/GC/13, 2011, para. 65. The Committee’s view is supported by H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2011, p. 10; A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 68 et seq. Dissenting: G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 118, 169. 122 IACtHR, Judgment of 31 August 2017, No. 12795, para. 141 – Lagos del Campo v. Peru; Judgment of 8 March 2018, Series C No. 349, paras 130 et seq. – Poblete Vilches et al. v. Chile. 123 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 7. 124 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 39; General Comment No. 5, CRC/GC/2003/5, 2003, para. 7, referring to CESCR Committee, General Comment No. 3: The Nature of States Parties’ Obligations, 14 December 1990, E/1991/23, para. 9. 125 See A Nolan, Economic and Social Rights, Budgets and the Convention on the Rights of the Child, International Journal of Children’s Rights 21 (2013), p. 245, at 258-262; eadem, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 245. 126 In detail see CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 65, 73; General Comment No. 19, CRC/C/GC/19, 2016, para. 29 et seq. 127 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 60 et seq.; General Comment No. 19, CRC/C/GC/19, 2016, paras 35 et seq. See also the explicit references in the wording of Article 23 para. 4, Article 24 para. 4 and Article 28 para. 3 CRC. 128 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 75 et seq. 129 CESCR Committee, General Comment No. 8: The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, E/1998/22, para. 51.

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implementation of the Convention guarantees. However, as the means chosen will not always be self-evident, States Parties will bear the burden of demonstrating the basis on which they are considered to be appropriate under the concrete circumstances. 130 Measures are considered appropriate when they are relevant to directly or indirectly advancing children’s rights in a given context.131 This includes a wide range of resources encompassing not only financial resources but also other types of resources relevant for the realisation of economic, social and cultural rights such as human, technological, organisational, social, natural and information resources.132 States Parties have the ongoing obligation to adopt appropriate and sustainable policies with respect to fiscal and general governance matters to secure children’s rights.133 Furthermore, the CRC Committee recommends that States Parties assess available resources beyond financial measures, emphasising the importance of systematically supporting parents and families in favour of the child under their care.134 Secondly, the principle of system coherence demands that the measures adopted to implement one right must be consistent with the other rights under the Convention.135 25 Available resources within the meaning of Article 4, sentence 2 CRC are not, in the opinion of the CRC Committee, just limited to those available in the national context but include those available from the international community through international assistance.136 Although the drafting history indicates that the phrase “where needed within the framework of international cooperation” in Article 4, sentence 2 CRC appeared already in the original Polish draft and was never contested,137 it remains, however, doubtful whether true obligations of international cooperation may arise from Article 4 CRC. As far as the CRC Committee routinely encourages States Parties to use, as appropriate, the technical assistance offered by organisations such as UNICEF or other UN agencies in the process of implementing the Convention,138 States are in fact under an obligation not to unreasonably refuse assistance offered by the agencies.139 A more delicate question, however, arises with respect to the nature of the obligation imposed on a State Party whose assistance is requested by another State. Article 2 para. 1 CRC refers to States Parties’ responsibility to all children within their jurisdiction and may be understood, under certain circumstances, as having an extraterritorial scope. 140 No 130 J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 288. 131 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 22. 132 CRC Committee, Day of General Discussion on Resources for the Rights of the Child, 2007, paras 65 et seq. 133 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 75 et seq. 134 CRC Committee, Day of General Discussion on Resources for the Rights of Children – Responsibility of States, 2007, para. 25; A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 246. 135 See J Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, Harvard Human Rights Journal 23 (2010), p. 233 et seq. 136 CRC Committee, Day of General Discussion on Resources for the Rights of Children – Responsibility of States, 2007, para. 24; General Comment No. 15, CRC/C/GC/15, 2013, para. 86; General Comment No. 19, CRC/C/GC/19, 2016, paras 3, 35. See also CRC Committee: Concluding Observations: Bosnia and Herzegovina, CRC/C/15/Add.260, 2005, para. 17. 137 See Commission on Human Rights, Note verbale of the Polish People's Republic, E/CN.4/1349, 1980. 138 See CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 64. See also CRC Committee, Concluding Observations: Egypt, CRC/C/EGY/CO/3-4, 2011, para. 22; Belarus, CRC/C/BLR/CO/ 3-4, 2011, para. 17. 139 Rightly so, J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 137. 140 See → Article 2 mns. 2-3.

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mention is made of jurisdiction in Article 4 CRC, with its reference to “within the framework of international cooperation” apparently resulting, in the view of the CRC Committee, in the imposition of extraterritorial obligations.141 While the full scope of Article 4 CRC in this respect is not fully clear,142 it is questionable whether the growing awareness for international cooperation, prominently expressed in the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights issued by the CESCR Committee on 28 September 2011, really gives rise to legally binding obligations imposed on developed countries to assist developing countries.143 Given the historic and constant reluctance and even resistance of the States to economic, social and cultural rights in light of the burdens of financial and political accountability such rights impose, it can only and at best be considered as being a soft law rule.144 States are merely encouraged to provide and use, as appropriate, technical assistance in the process of implementing the Convention.145 States Parties which lack the resources needed are demanded to seek international cooperation, while States Parties with sufficient resources should, as far as possible, provide such cooperation with the aim of facilitating the implementation of children’s rights in the recipient State. 146 It might be wished, from a moral perspective, that States collaborate with other States’ efforts to mobilise the maximum available resources for children’s needs. 147 In contrast to the opinion expressed by the CRC Committee,148 there is, however, no obligation arising from international law or the Convention itself for States to cooperate on a transnational basis.149 Even more: There is certainly no competence conferred upon States to intervene in the jurisdictions of other States.150 Besides progressive realisation, non-retrogression is another immediate duty identi- 26 fied by the CRC Committee in the context of Article 4 CRC.151 The obligation not to take any retrogressive steps that could hamper the enjoyment of economic, social and cultural rights is considered to be inherent in the obligation towards progressive realisation of those rights.152 Such retrogressive measures might include cuts to economic rights-related programming, the withdrawal of funding or the cancellation of social

141 See M Langford/F Coomans/I Felipe Gómez, in: M Langford/W Vandenhole/M Scheinin/W van Genugten (eds.), Global Justice, State Duties, 2013, p. 51, at 58 et seq.; A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 250 et seq. 142 W Vandenhole, Economic, Social and Cultural Rights in the CRC: Is there a Legal Obligation to Cooperate Internationally for Development? International Journal of Children’s Rights 17 (2009), p. 23 et seq. 143 Rightly so, A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 251. Different assessment by O De Schutter, International Human Rights Law, 3 rd edn. 2019, p. 213 et seq. 144 S Schmahl, in: Martin Schmidt-Kessel (ed.), German National Reports on the 20th International Congress of Comparative Law, 2018, p. 483, at 505 et seq. 145 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 60 et seq. 146 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 35. 147 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 37. 148 See, e.g., CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 60; General Comment No. 15, CRC/C/GC/15, 2013, paras 86-89; General Comment No. 19, CRC/C/GC/19, 2016, para. 35. 149 Different assessment by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 4.10. 150 Different assessment by J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 112, 146 et seq. 151 See CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 72; General Comment No. 17, CRC/C/GC/17, 2013, para. 55; General Comment No. 19, CRC/C/GC/19, 2016, para. 32. 152 See A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 247.

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policies.153 However, States Parties shall secure that regressive measures may only be considered after assessing all other options. They shall demonstrate that such measures are necessary, reasonable, proportionate, non-discriminatory and temporary.154 In any case, States Parties should not allow the existing level of enjoyment of children’s rights to deteriorate. Even in times of economic or other crisis, children, in particular children in vulnerable situations, have to be the last to be affected by regressive measures, and the minimum and core obligations imposed by children’s rights should not be compromised by any retrogressive measures.155 The minimum core obligations encompass essential primary healthcare, basic shelter and housing, social security, family protection and the most basic forms of education.156 27 The financial resources devoted by States Parties for the realisation of children’s economic, social and cultural rights must be continuously monitored and controlled by the State, which in turn is under the control of the CRC Committee.157 It is, of course, inherently difficult to determine whether a country really exhausts the maximum means at its disposal.158 In this regard, a comparison of the realisation of economic, social and cultural rights of children in economically similar States could be made, which allows conclusions about the appropriate distribution of State resources. In addition, the CRC Committee has issued guidelines and procedures for effective, efficient, transparent and sustainable budgeting in order to strengthen the use of financial resources on the part of States Parties in the field of children's rights.159 28 The budget planning of the Contracting States must be child-friendly and aligned with the principles of effectiveness, efficiency, equal treatment, transparency and sustainability.160 The CRC Committee is of the opinion that a budget, in which the proportion of spending on children can be properly identified and monitored, helps States Parties to better align with the requirements of the Convention.161 The reference to financial constraints cannot, however, be used by States Parties to justify the omission or insufficiency of measures.162 Regardless of the economic situation, all States are encouraged to make the utmost efforts with a view to the realisation of children’s rights. If financial difficulty is present, States Parties must distribute services so that children receive particular priority and must, to the largest possible extent, guarantee financial resources assigned to protect children.163 Under no circumstances are cuts to be allowed

153 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 248. 154 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 31. 155 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 31-32; General Comment No. 21, CRC/C/GC/21, 2017, para. 34. 156 See CRC Committee, Day of General Discussion on Resources for the Rights of Children – Responsibility of States, 2007, para. 48; General Comment No. 15, CRC/C/GC/15, 2013, para. 73; General Comment No. 19, CRC/C/GC/19, 2016, paras 9, 17. Further see A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 249 et seq.; J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 143. 157 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 104 et seq. 158 M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 54, para. 136. 159 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 64 et seq.: "Planning, Enacting, Executing, Following-Up". 160 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 57 et seq. See also CRC Committee, Concluding Observations: Cabo Verde, CRC/C/CPV/CO/2, 2019, para. 12. 161 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 58. 162 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 14. 163 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 31.

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at the expense of the most disadvantaged and vulnerable children.164 The States Parties, according to the CRC Committee, also need to guarantee a fair distribution of resources between rural and urban areas.165 The fight against poverty has a special role in the realisation of children’s rights.166 Children in poverty are not only at particular risk of becoming victims of various forms of exploitation. Child poverty hinders the realisation of all Convention rights.167 All in all, the CRC Committee deems the public budgeting for the realisation of 29 children’s economic, social and cultural rights as one of the key factors for the implementation of the CRC. Therefore, States Parties have to constantly assess their budget decisions to ensure effectiveness and best possible outcomes for children. 168 They have to manage public resources and programmes in such a way as to ensure the obligation to respect, protect and fulfil children’s rights efficiently,169 to avoid corruption and mismanagement of public resources,170 to implement the principle of non-discrimination through resource mobilisation,171 to develop and maintain public finance systems that are transparent and open to scrutiny,172 and to take into account the best interests of current and future generations of children in sustainable budget decisions.173 Finally, States Parties should give a focus on participation of children when planning the budget.174 Such an emphasis on the importance of participatory budgeting is not found in the CESCR Committee’s work so far.175 In addition, the challenges associated with resource allocations in favour of children, as demanded by the CRC Committee, must not be underestimated. The CRC Committee has even stressed the need to prioritise children’s rights in budgets.176 However, since there are other human rights-holders and public interests as well, children’s rights cannot be considered the paramount or determinative argument, but only one, although important, budgetary consideration amongst others.177 The CRC Committee's rigorous budget-related requests to the States

164 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 8; see also CRC Committee, Concluding Observations: Jamaica, CRC/C/15/Add.210, 2003, paras 17 et seq.; Israel: CRC/C/15/ Add.195, 2002, para. 19. 165 CRC Committee, Concluding Observations: Romania, CRC/C/15/Add.199, 2003, para. 13; Spain, CRC/C/15/Add.185, 2002, para. 18 a; Ethiopia, CRC/C/ETH/CO/4-5, 2015, para. 12. See also the Guidelines of the Committee of Ministers of the Council of Europe CM/Rec[2015]3 on the access of young people from disadvantaged neighbourhoods to social rights. 166 M Rishmawi, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 4, 2006, Article 4, p. 31, paras 82 et seq.; K Arts, Twenty-five Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges, Netherlands International Law Review 61 (2014), p. 267, at 297. 167 See, e.g., CRC Committee, Concluding Observations: Romania, CRC/C/15/Add.199, 2003, para. 13; Spain, CRC/C/15/Add.185, 2002, para. 18 a. See also FRA, Annual Report 2014, p. 111 et seq. 168 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 59. 169 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 69. 170 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 34; General Comment No. 16, CRC/C/GC/16, 2013, para. 55. See also CRC Committee, Concluding Observations: Togo, CRC/C/15/Add.255, 2005, para. 17. 171 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 61. See also CRC Committee: Concluding Observations: Bosnia and Herzegovina, CRC/C/15/Add.260, 2005, para. 16. 172 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 62. 173 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 63. 174 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 33. 175 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 249. 176 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 12, 45. 177 Similar assessment by J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 122-123.

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Parties are therefore very extensive and correspond more closely to lobbying under children’s rights than to a human rights-balanced consideration.

IV. Embedding of Article 4 CRC into the System of International Human Rights Protection Article 4 CRC largely reflects the general implementation provisions of Article 2 para. 1 ICCPR and especially those of Article 2 para. 1 ICESCR. Given the close nexus between them, the CRC Committee often expressly refers to the provision of Article 2 ICESCR and the recommendations made by the CESCR Committee when interpreting the meaning of Article 4 CRC.178 The CRC Committee thus deliberately links its understanding of the umbrella obligation in terms of economic, social and cultural rights under Article 4, sentence 2 CRC with the CESCR Committee’s approach to the umbrella obligation applying such rights under Article 2 para. 1 ICESCR. This would be unproblematic, were it not for the fact that the wording and the aim of Article 2 para. 1 ICESCR are significantly different to that of Article 4 CRC.179 The unique formulation adopted under Article 4 CRC and its nexus with the other rights under the Convention demands that the interpretation of this provision must be relevant to the experiences and lives of children.180 In this regard, it is not very convincing that the CRC Committee thus far has not expressly considered the question of if and how the differences in wording of the provisions should operate in terms of Article 4 CRC. 181 31 At the regional level, the Council of Europe’s Convention on the Exercise of Children’s Rights of 25 January 1996182 serves the implementation of Article 4 CRC in Europe. It contains procedural requirements, which enable the assertion of children’s rights. To facilitate and promote the exercise of children’s rights, this CoE Convention provides, inter alia, that States Parties shall establish procedural enforcement options specifically for children. The Venice Commission of the Council of Europe also emphasises the indivisibility of the rights of the child and prioritises the child’s rights and his or her “ownership” thereof.183 A similar conclusion can be drawn with regard to Article 26 ACHR. With regard to the indivisibility of all human rights, the Inter-American Court of Human Rights urges the States Parties to also implement, to the maximum extent possible, economic, social and cultural rights.184 30

See, e.g., CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 9. Rightly so, A Nolan, Economic and Social Rights, Budgets and the Convention on the Rights of the Child, International Journal of Children’s Rights 21 (2013), p. 245 et seq.; eadem, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 245 et seq. 180 J Tobin, Article 4, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 108, at 110. 181 Similar criticism by A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 246. 182 ETS No. 160. 183 Venice Commission, Opinion No. 713/2013 of 24 March 2014, CDL-AD (2014) 005, paras 118, 145. 184 IACtHR, Judgment of 8 March 2018, Series C No. 349, paras 100 et seq. – Poblete Vilches et al. v. Chile. See also A Kohte, Die Unteilbarkeit und Gleichwertigkeit aller Menschenrechte im interamerikanischen Menschenrechtssystem: Der IAGMR entwickelt ein justiziables autonomes Recht auf Gesundheit im Fall Poblete Vilches, Zeitschrift für Europarechtliche Studien 2019, 573, at 574 et seq. 178

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Article 5 [Parental and Family Rights] States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Rights and Obligations of Parents and Immediate Family Members . . . . . . . . . III. Embedding of Article 5 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 13

I. Generalities For children, the family is the natural environment for their growth and well-being. 1 This is expressly stated in Recitals 5 and 6 of the Preamble to the CRC and further concretised in Article 5 CRC. 1 The norm stipulates the duty of the family or other legally responsible guardians to provide the child with appropriate direction and guidance in the exercise of their Convention rights. Article 5 CRC is an umbrella or cross-cutting provision that refers to all rights enshrined in the Convention.2 In its General Comment No. 21 (2017) on the rights of children in street situations, the CRC Committee even lists Article 5 CRC among the “general principles” of the Convention (alongside Articles 2, 3, 6 and 12 CRC), invoking it as an important component in a holistic child rights approach.3 This might explain the systematic positioning of the norm within the general provisions of the Convention. The obligation of States Parties to ensure this guidance and leadership function of parents is repeated and substantiated specifically with respect to the freedom of religion in Article 14 para. 2 CRC.4 Further provisions of the Convention that also deal with family issues and the necessary guidance of the child by his or her parents are Articles 9-11 and Article 18 CRC. Article 5 CRC does not contain a comprehensive upbringing and educational right 2 of the parents, but rather incorporates only partial aspects. A comprehensive regulation of parental rights and obligations would have overstepped the object and purpose of a universal convention concerning children’s rights. Moreover, parental rights are already sufficiently protected by other international law instruments.5 Because of its child-oriented perspective, Article 5 CRC is, however, not limited only to parents, but also covers the guidance and direction responsibility of the extended family, and all other legal guardians. The direction and guidance of parents and family members play an important role even with regard to children in street situations. If children in street 1 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 162. 2 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, para. 101. Further see G Van Bueren, The International Law on the Rights of the Child, 1995, p. 45, 51; K Hanson/L Lundy, Does Exactly What It Says on the Tin? International Journal of Children’s Rights 25 (2017), p. 285, at 301 et seq. 3 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 11. 4 See → Article 14 mn. 10. 5 P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 13.

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situations have few or no positive connections with parents, extended families or legal guardians, then the role of community members, as referenced in Article 5 CRC, takes on a stronger significance.6 In the opinion of the CRC Committee, this includes support from trustworthy adults associated with civil society organisations.7

II. Rights and Obligations of Parents and Immediate Family Members Article 5 CRC pays regard to the fact that in many societies, especially in developing and emerging countries, the prevailing family structures differ from those known in Western industrial nations. Instead of small families, there is a tendency towards large families, which is partly due to descent groups, and partly due to the possibility of polygamy. In many African and Muslim countries, polygamy is still authorised.8 Article 5 CRC takes these socio-cultural differences into account by considering both “local custom” and the role of “the members of the extended family or community”. The fact that the drafters of the Convention were aware of and sought to accommodate differing cultural practise regarding parenting9 is significant, since it is not only a cultural-sensitive approach but also affirms that the emphasis in Article 5 CRC is not on a biological conception of parents but rather on identifying the persons entrusted with the social responsibility for a child on a day-to-day basis. 10 The CRC Committee therefore explains that family refers to a variety of arrangements that can provide for children’s care and development, including the nuclear family, the extended family, on other traditional and modern community-based arrangements, provided that these are consistent with children’s best interests.11 Other provisions of the Convention, which concern the rights and obligations of parents, such as Article 14 para. 2, Article 18 para. 1, Article 19 or Article 27 para. 2 CRC, however, fail to include an explicit reference to the extended family. This divergence in the Convention text is inconsistent.12 Since the rights of the Convention must be considered as a whole, it is obvious that the other provisions of the Convention, in light of Article 5 CRC, must be subject to a wide interpretation that takes the relevant cultural and legal systems of parenting and family into account.13 4 The extended family is to be understood in both the vertical (grandparents, parents, descendants) and horizontal senses (cousins, siblings).14 In African societies, parenting is not only the task of biological parents, but also of the entire community, with a minimum of State intervention. Sometimes in these cultures, terms common in industrialised countries such as “uncle” and “aunt” are not used; instead, the terms “father” 3

CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 35. CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 35. 8 See C Tomuschat, Adaptation of Human Rights to Cultural Specificities, Die Friedens-Warte 93 (2020), p. 12, at 28. 9 Commission on Human Rights, Report of the Working Group, E/CN.4/1989/WG.1/CRP.1/Add.1, 1989, para. 13; E/CN.4/1989/48, 1989, para. 180. 10 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 169. 11 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 15. 12 See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 71. 13 This is, at least, the predominant view in literature, see G Van Bueren, The International Law on the Rights of the Child, 1995, p. 71; P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 14; B Walsh, The United Nations Convention on the Rights of the Child: A British View, International Journal of Family Law 5 (1991), p. 170, at 173. Dissenting: G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 116. 14 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 68. 6

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and “mother” are treated in a more general way.15 The CRC Committee rightly stresses that the term “family” in Article 5 CRC must be interpreted in a broad sense to include biological, adoptive or foster parents, or where applicable, the members of the extended family or community as provided for by local custom.16 Any more restrictive definition would transform the family into a far-fletched, artificial structure. Families, in fact, rather assume diverse forms and functions from one country to another, and within each national society. These express the diversity of individual preferences and societal conditions.17 This idea lies also behind the wording of Article 5 CRC.18 On the other hand, the CRC Committee is concerned about polygamy and asks States Parties to undertake studies on impact of polygamy on the upbringing and development of children.19 Because of the reference to cultural customs and factual realities in many societies, 5 alternative family forms (“patchwork families”) which are increasingly present in Western countries are also covered by Article 5 CRC. This type of family form, although not entirely new,20 results from an evolution of the social framework determining family life.21 The increased incidence of divorces and re-marriages as well as the increase in non-marital relationships and same-sex partnerships means that an understanding of the family limited to the traditional model in Western societies of the early and mid-20 th century would no longer reflect reality and the needs of modern society.22 The CRC Committee regularly emphasises the prominent role of the extended family in Article 5 CRC also for Western countries, and above all, it also points to the potential importance of grandparents, whose legal position is largely neglected in Western jurisdictions. The CRC Committee believes that the States should make efforts to promote the role of grandparents in children’s upbringing.23 In contrast, the fragmentation and multiplication of intentional, physical and social 6 parenthood caused by modern reproductive medicine, which produces new family forms and custody and care relationships with the child,24 are presumable not easily compatible with Article 5 CRC. It is true that the CRC, like all other human rights conventions, is a "living instrument" and thus, in principle, open to include new forms of social family life and a pluralisation of parenthood. The wide variety of individual choices with regard to family forms is especially obvious nowadays in Western countries G Van Bueren, The International Law on the Rights of the Child, 1995, p. 68. See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 59; Concluding Observations: Tonga, CRC/C/TON/CO/1, 2019, para. 39. See also CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 8.11. 17 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 163. 18 Different assessment by N Peleg, The Child’s Right to Development, 2019, p. 103-104. 19 CRC Committee, Concluding Observations: Djibouti, CRC/C/DIJ/CO/2, 2008, para. 40; Gabon, CRC/C/GBA/CO/2, 2016, para. 40; Côte d’Ivoire, CRC/C/CIV/CO/2, 2019, paras 37-38. 20 See, for instance, the so-called step-family. 21 R Hausmann, Die Patchwork-Familie, Deutsche Notar-Zeitschrift 2011, p. 602, at 603; N Dethloff, Familienrecht in Europa – Quo vadis?, Neue Juristische Wochenschrift 2018, p. 23, at 24-26. 22 For more detail see C-D Classen, Dynamische Grundrechtsdogmatik von Ehe und Familie? Deutsches Verwaltungsblatt 2013, p. 1086, at 1086 et seq.; H Keller, in: A Büchler/H Keller (eds.), Family Forms and Parenthood. Theory and Practice of Article 8 ECHR in Europe, 2016, p. 3-28. 23 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 648. 24 See, e.g., F Brosius-Gersdorf, Biologische, genetische, rechtliche und soziale Elternschaft: Herausforderungen für das Recht durch Fragmentierung und Pluralisierung von Elternschaft, Recht der Jugend und des Bildungswesens 2016, p. 136, at 136 et seq.; A Dutta, Bunte neue Welt: Gespaltene Elternschaft als Herausforderung für das Kindschaftsrecht des 21. Jahrhunderts, JuristenZeitung 2016, p. 845, at 846 seq., both with further references. 15 16

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where the range of family structures is characterised by the coexistence of traditional, newer and unfamiliar forms of family life.25 It is also true that for the purpose of Article 5 CRC it is the social conception of parenthood that is relevant because a social parent is a person who has the responsibility for the day-to-day care of a child, and this is exactly the focus of Article 5 CRC.26 The decisive factor is that the well-being and the best interests of the child as well as his or her personal development are safeguarded.27 Such an approach is in line with the views of the CRC Committee. In 2016, the CRC Committee expressed concerns that the definition of a stable family contained in Slovak legislation as consisting of the child’s father and mother as the most suitable environment for the complex and harmonic development of the child did not take into account the different kinds of families that exist and was not in conformity with the definition of the family environment as set out in Article 5 CRC. Therefore, the CRC Committee recommended that the State Party amend its legislation to bring it into full compliance with the CRC, focusing on the well-being of the child rather than the composition of the family.28 According to the CRC Committee, a family is understood as a variety of arrangements that can provide for children’s care, nurturance and development, including the nuclear family, the extended family and other traditional and modern arrangements, provided these are consistent with children’s rights and best interests.29 7 Nevertheless, the interpretation of the term “parent” under Article 5 CRC remains problematic in regards to the fragmentation and multiplication of intentional, physical and social parenthood. Issues related to developments in biomedical science and assisted reproduction become increasingly more complicated with the process having two main dimensions: the medical dimension concerns the recently announced possibility of a child having several, three up to six, genetic, intentional and social parents.30 As to the social dimension, one of the main concerns relates to the need to react to the multiple parentage phenomena (biological, gestational, genetic, intended and/or social parents) and to qualify and perhaps regulate the child’s relations with all these persons claiming parenthood on one or another way.31 In 2017, the Californian law was, for instance, modified in order to give the courts the competence to decide that more than two persons with a claim to parentage are parents if the court finds that recognising only two parents would be detrimental to the child’s physical or psychological well-being.32 On the other hand, the German Federal Constitutional Court states that the actual transformation of family life contexts, particularly in views of developments in biomedical science and assisted reproduction, does not require subordinating a child to the parental responsibility of several mothers and fathers at the same time. The content of parental rights places limits on multiple parenting, especially in order to safeguard the best interests of the child and to avoid responsibility divergences and conflicts of compe-

25 See H Keller, in: A Büchler/H Keller (eds.), Family Forms and Parenthood. Theory and Practice of Article 8 ECHR in Europe, 2016, p. 3, at 3; O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 164. 26 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 169. 27 N Dethloff, Familienrecht in Europa – Quo vadis?, Neue Juristische Wochenschrift 2018, p. 23, at 27. 28 CRC Committee, Concluding Observations: Slovakia, CRC/C/SVK/CO/3-5, 2016, paras 32-33. 29 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 15. See also O Khazova, in: U Kilkelly/Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 164. 30 J Scherpe, The Present and Future of European Family Law, 2016, p. 100 et seq. As to the problem of surrogate motherhood in cross-border situations, see → Article 7 mns. 21 et seq. 31 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 165. 32 West’s Ann. California Family Code § 7612.

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tence.33 Children need to be sure about who their parents are and who is ultimately responsible for their care and upbringing,34 which speaks prima facie for the legitimacy of the two-parent model.35 Incidentally, the numerical limitation of the parental right to two parents does not preclude other persons from exercising parental duties to a certain extent by granting them a (down-)graded parental authority.36 Guidance and direction of parents in the upbringing of children is one of the essential 8 principles of the Convention.37 In Recitals 5 and 6 of the Preamble, the family is accordingly recognised as an elementary social group that represents the natural environment for the growth and prosperity of children and should, therefore, be protected and supported by necessary measures. The responsibility for the child is primarily that of parents and the immediate or extended family.38 States authorities must respect the rights and duties of parents with respect to the upbringing, education and guidance of their children.39 A primary or even exclusive governmental education and care system is thus clearly rejected by the Convention.40 This is true even with regard to Article 3 para. 2 CRC that might suggest a different approach, which is not entirely consistent anyway.41 Article 5 CRC does not contradict but rather conforms to the right of the child to 9 express his or her views as guaranteed by Article 12 CRC.42 Recognition of a child as an independent rights-holder has significantly contributed to the child’s more active role within the family.43 Traditionally, the child was deprived of the right to have a voice in the family but was seen as a dependent, invisible and passive family member.44 The CRC, in contrast, acknowledges a child as a subject of rights capable of forming his or her own views.45 This is also the reason why Article 5 CRC replaces the formulation found in several older international agreements of parental custody into parental responsibilities. The replacement aims to symbolise that children are rights-holders and are placed neither under a hierarchical authority of parents nor under patria potestas, under which they were, according to historical conceptions of the child-parent relationship, conceived of as the property of the parents and more specifically their father. 46 33 See (German) Federal Constitutional Court, Judgment of 6 February 2001, 1 BvR 12/92, paras 47 et seq.; Decision of 9 April 2003, 1 BvR 1493/96, 1 BvR 1724/01, paras 60 et seq.; see also Federal Constitutional Court, Judgment of 19 February 2013, 1 BvL 1/11, 1 BvR 3247/09, para. 52. 34 See F Wapler, Kinderrechte und Kindeswohl, 2015, p. 186 et seq. 35 F Wapler, Familie und Familienschutz im Wandel, Rechtswissenschaft 2014, p. 57, at 76 et seq. Critical assessment by B Heiderhoff, Herausforderungen durch neue Familienformen – Zeit für ein Umdenken, Neue Juristische Wochenschrift 2016, p. 2629, at 2630 et seq. 36 See (German) Federal Constitutional Court, Judgment of 19 February 2013, 1 BvL 1/11, 1 BvR 3247/09, paras 52, 73. See also F Brosius-Gersdorf, Soziale Elternschaft, Jahrbuch des öffentlichen Rechts 62 (2014), p. 179, at 193 et seq. 37 See G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 108. 38 B Verschraegen, Die Kinderrechtskonvention, 1996, p. 4. 39 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 161. 40 W Heintschel von Heinegg, Spezielle Menschenrechtspakte, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, Vol. VI/2, 2009, § 175 mn. 50. 41 See → Article 3 mn. 19. 42 For more detail see J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 173-183; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 5.11. 43 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 167. 44 See CRC Committee, General Guidelines, CRC/C/34, 1994, para. 192. 45 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 167. 46 J Scherpe, The Present and Future of European Family Law, 2016, p. 101 et seq.; J Eekelaar, The Emergence of Children’s Rights, Oxford Journal of Legal Studies 8 (1986), p. 161, at 162.

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Article 5 CRC offers a different conception of the child-parent relationship which is best characterised as a trustee or fiduciary type relationship.47 In that sense, Article 5 CRC contains the right of a child to receive appropriate direction and guidance from his or her parents to secure the enjoyment of his or her rights.48 That is why the CRC Committee recommended the French Government consider replacing the term “autorité parentale” with “responsabilité parentale” or a similar terminology more consistent with the child-rights approach of the Convention.49 10 Some of the opponents of children’s rights deem these rights of the child to be heard under Article 12 CRC as posing a danger to the family and society. Concerns have been expressed that the CRC gives the child too many rights and freedoms, thereby weakening the position and authority of parents.50 These arguments fundamentally misunderstand the aims of the Convention. The CRC is in no sense “anti-family”, nor does it pit children against their parents.51 Proper application of the CRC merely requires a change of minds and conception concerning the role that children play in the family and in social life.52 By giving rights to children, the Convention raises the level of dignity and respect for all family members and does not undermine the significance of parental rights and protection.53 The CRC rather takes a clear stand in Articles 5 and 18 CRC as to the importance of the role that parents and the family play in a child’s life. 11 Therefore, Article 5 CRC assumes that children and adolescents are subject to certain restrictions on the exercise of their rights arising from the parents’ or other legal guardians’ rights of upbringing. The Convention does not intend to detach the child from the educational responsibility of his or her parents or other legal guardians (see also Article 18 CRC). Article 5 CRC illustrates that it is not about competing rights and obligations of parents and children, but rather about a congruent interaction in all matters affecting the child.54 The family should be protected from arbitrary State interference, but it should not have unlimited control over the child.55 This is demonstrated by the wording of Article 5 CRC, pursuant to which the parents have to direct and guide their children “appropriately”. With the term “appropriate direction and guidance” an objective element of proportionality is introduced into the parenting right. The direction and guidance functions are to be exercised in a manner consistent with the development and maturity of the child and his or her evolving capacities. As they age, the capacities of

47 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 161. See also BB Woodhouse, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 237, at 243. 48 G Kamchedzera, Article 5, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 5, 2012, p. 13 et seq. 49 CRC Committee, Concluding Observations: France, CRC/C/FRA/CO/5, 2016, paras 49-50. 50 See O Cvejić Jančić, in: eadem (ed.), The Rights of the Child in a Changing World, 2016, p. 1, at 3-4; E Sutherland/L-A Barnes Macfarlane, in: easdem (eds.), Implementing Article 3 of the United Nations Convention on the Rights of the Child, 2016, p. 11, at 13, both with relevant references. 51 Rightly so: G Lansdown, The Evolving Capacities of the Child, 2005, p. 6; R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007. See also CRC Committee, Concluding Observations: Tuvalu, CRC/C/TUV/CO/2-5, 2020, para. 13. 52 J Tobin, in: M Ruck/M Peterson-Badali/M Freeman (eds.), Handbook of Children’s Rights: Global and Multidisciplinary Perspectives, 2016, p. 53 et seq.; BB Woodhouse, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 237, at 238 et seq. 53 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 77; O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 167. 54 I Baer, Verabschiedung des UN-Übereinkommens über die Rechte des Kindes im November 1989 in New York, Familie und Recht 1990, p. 192, at 193. 55 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 117; A Holzscheiter, Children’s Rights in International Politics, 2010, p. 187 et seq.

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children evolve; this period can be determined as “dynamic self-determinism”.56 Parental responsibilities must be geared to the child’s development, must take the opinions of the child into account according to their evolving capacities and must give guidance that is consistent with the other provisions of the Convention.57 Article 5 CRC contains the principle that parents have the responsibility to continually adjust the levels of support and guidance they offer to their child. These adjustments take account of the child’s interests and wishes as well as the child’s capacities for autonomous decision-making and comprehension of his or her best interests.58 Thus, the evolving capacities should be seen as a positive and enabling process, not an excuse for authoritarian practices that restrict children’s autonomy and self-expression.59 The influence of those responsible for the child must decrease in proportion to the age and increasing maturity of the child.60 Parental authority is limited insofar and as long as the child is able and mature to exercise his or her autonomy or self-determinism.61 In general, the parental right is the only human right inherently containing a power of determination over others and which aims to become superfluous and obsolete over the course of time.62 However, in one aspect, Article 5 CRC goes beyond several national provisions regarding the parenting right insofar as it stipulates that the child should be instructed by the parent or guardian to exercise the rights which he or she has under the Convention vis-à-vis the State community and to make use of them.63 Furthermore, there is an expectation that the care, direction and assistance given to the child will be provided without the unjustified, arbitrary or unreasonable intervention of the State.64 Article 5 CRC also contains a State’s duty to respect the rights of parents and the 12 (extended) family and to protect the rights of the child within the family. This means, first, that States Parties, under the obligation to respect, have the duty to refrain from taking measures that would unlawfully or arbitrarily interfere with parental rights and responsibilities regarding the upbringing of their children.65 In this respect, it is important to note that Article 9 CRC provides that a child can only be separated from his or her parents where this is necessary to secure the best interests of the child. 66 States Parties have also a positive obligation to take all appropriate measures to protect children’s right to parental guidance in line with their evolving capacities from unjustified interference from non-State actors, for example, from social workers, teachers, medical professionals or sports coaches.67 Therefore, the States Parties are called upon to enact 56 J Eekelaar, The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self Determinism, International Journal of Law, Policy and the Family 8 (1994), p. 42 et seq. 57 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 18. See also G Lansdown, Innocenti Insights: The Evolving Capacities of the Child, 2005, p. 6. Further see → Article 12 mn. 41. 58 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 17. 59 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 18. 60 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 18; P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 14 et seq. 61 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 152. Similarly, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 5.09. 62 O Klein, Fremdnützige Freiheitsgrundrechte, 2003, p. 71. 63 R Eichholz, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 197, at 200 et seq. 64 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 161. 65 For more detail see J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 163 et seq. 66 See → Article 9 mns. 3 et seq. 67 G Kamchedzera, Article 5, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 5, 2012, p. 27 et seq.

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clear legislative regimes and promote appropriate education and training for all nonState actors working with children.68 Second, from the duty to protect the rights of the child within the family it follows that the States Parties should develop in cooperation with civil society, families and children a holistic national children and family policy that supports and strengthens families.69 States Parties should also take active measures, such as counselling programmes for families, parenting classes for parents or training of professionals having contact with children in order to raise awareness of the model of parenting required by Article 5 CRC.70 Third, parents enjoy significant discretion with respect to the implementation of their obligation to provide children with appropriate guidance and direction in light of their evolving capacities. This direction is, however, not unlimited. For parental guidance to be considered appropriate it must be consistent with all the provisions of the CRC. This means, first and foremost, that parents and other child carers should be encouraged to offer direction and guidance in a child-centred way, according to the evolving capacities of the individual child, through dialogue and example.71

III. Embedding of Article 5 CRC into the System of International Human Rights Protection The principle that upbringing and education from parents forms one of the fundamental rights of the child, is found in many international instruments.72 In other human rights treaties, the family is also understood as the basic group unit on which society rests. The family is entitled to societal and State protection (see, e.g., Article 23 ICCPR and Article 10 para. 1 ICESCR). Nevertheless, Article 5 CRC is unique in that there is no equivalent provision in any other human rights instrument that commits to the idea that the exercise of parental responsibilities would be directed towards having due regard for the importance of allowing the child to develop the skills and knowledge required for an independent adulthood.73 Even the African Charter on the Rights and Welfare of the Child, which mirrors many provisions in the CRC, has no equivalent to Article 5 CRC. 14 Given the different cultural forms of family life, a legal definition of family is not present in any human rights treaty. Likewise, Article 8 ECHR presupposes the concept of the family, without defining it.74 It is explained by the ECtHR on a case-by-case basis and depends on the existence of family ties between a child and a person concerned.75 Polygamous marriages also fall under the family concept of Article 8 ECHR. However, a prohibition of family reunification on the basis of polygamy has been regarded as 13

68 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 166 et seq. 69 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 645. 70 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 163. 71 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev. 1, 2006, para. 17; General Comment No. 16, CRC/C/GC/20, 2016, para. 18. 72 See, e.g., UN General Assembly Resolutions A/RES/1386 (XIV), para. 6; A/RES/41/85, para. 3. See also Article 16 para. 3 UDHR. 73 J Tobin/S Varadan, Article 5, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 159, at 159-160. See also Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 100 et seq. 74 ECtHR, Judgment of 13 June 1979, No. 6833/74, para. 31 – Marckx v. Belgium. 75 B Rainey/E Wicks/C Ovey, The European Convention on Human Rights, 7th edn. 2017, p. 335.

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justified by the (European) public order.76 Yet, there is a general tendency that human rights monitoring bodies and international tribunals increasingly broaden the concept of family to include the natural and so-called de facto family.77 Also, family life within the meaning of Article 8 ECHR nowadays includes close relatives, e.g., grandparents and grandchildren,78 as well as relations between more remote family members, such as between an uncle and his nephew, if there are close family ties between them.79 Furthermore, the ECtHR holds that de facto family ties may constitute family ties even in the absence of a biological or adoptive relationship.80 According to the Court, the time an adult and a child have spent living together and the quality of the relationship must be taken into account. Where there is a family tie with a child, the State must act in such a way as to allow the social bond to grow stronger and provide legal protection to facilitate the child’s integration in the family.81 This even applies in cases where the father and the child believed that they were family until it was eventually revealed that the applicant was not the child’s biological father.82 All in all, from the general human rights perspective, the concept of family is nowa- 15 days not legally defined, but based rather on actual relationship conditions. The concept, therefore, includes both marital and non-marital forms of cohabitation between a man and a woman;83 a family relationship can also exist between foster parents and a child.84 Actual cohabitation is not absolutely necessary for family life; instead, it depends upon whether, based on the specific circumstances, a sufficiently constant and close personal relationship and close family ties between parent and child exist.85 By contrast, biological paternity without any personal component is insufficient to establish the presence of family life.86 Relationships with immediate relatives, according to the case-law of the ECtHR, fall within the concept of the family when a sufficiently close family structure going beyond the usual emotional bond exists. An example would be the relationship between grandparents and grandchildren.87 This is similar to the requirement of Article 76 EComHR, Decision of 29 June 1992, No. 19628/92 – R.B. v. The United Kingdom. See also ECtHR, Judgment of 1 July 2014, No. 43835/11 – S.A.S. v. France. See further P Czech, Das Recht auf Familienzusammenführung nach Art. 8 EMRK in der Rechtsprechung des EGMR, Europäische Grundrechte Zeitschrift 2017, p. 229, at 230. 77 See Human Rights Committee, A/36/40(SUPP), 1981, p. 134 et seq.; ECtHR, Judgment of 13 June 1979, No. 6833/74, para. 31 – Marckx v. Belgium; Judgment of 26 May 1994, No. 169/90, para. 44 – Keegan v. Ireland; Judgment of 15 September 2011, No. 17080/07, para. 79 – Schneider v. Germany; Judgment of 3 May 2011, No. 56759/08, para. 55 – Negrepontis-Giannisis v. Greece. 78 See ECtHR, Judgment of 4 December 2012, No. 47017/09, para. 76 – Butt v. Norway; Decision of 17 September 2013, No. 3202/09, para. 36 – F.N. v. The United Kingdom; Judgment of 25 November 2014, No. 10140/13, paras 108 et seq. – Kruškić v. Croatia. Similar assessment by CJEU, Judgment of 6 November 2012, Case C-245/11, ECLI:EU:C:2012:685, para. 38 – K/Bundesamt. 79 ECtHR, Decision of 24 February 1994, No. 15/1993/410/489 – Boyle v. The United Kingdom. 80 ECtHR, Decision of 27 October 1994, No. 18535/91, para. 30 – Kroon v. The Netherlands. See also ECtHR, Judgment of 9 April 2019, No. 72931/10, paras 90 et seq. – V.D. v. Russia. 81 ECtHR, Judgment of 6 October 2011, No. 76240/01, – Wagner and J.M.W.L. v. Luxembourg; Decision of 27 April 2010, No. 16318/07 – Moretti and Benedetti v. Italy; Judgment of 4 October 2012, No. 43631/09 – Harroudj v. France; Judgment of 16 December 2014, No. 52265/10 – Chbihi Loudoudi v. Belgium. 82 ECtHR, Judgment of 16 July 2015, No. 39438/13, para. 58 – Nazarenko v. Russia. 83 D Coester-Waltjen, in: J Scherpe (ed.), European Family Law, Vol. I, 2016, p. 49-94. 84 ECtHR, Judgment of 13 July 2000, No. 25735/94, para. 43 – Elsholz v. Germany; Decision of 27 April 2010, No. 16318/07, paras 46 et seq. – Moretti and Benedetti v. Italy. See also M Palm-Risse, Der völkerrechtliche Schutz von Ehe und Familie, 1990, p. 205 et seq. 85 ECtHR, Judgment of 21 June 1988, No. 10730/84, para. 21 – Berrehab v. The Netherlands; Judgment of 21 June 1988, No. 10730/84, para. 30 – Brauer v. Germany; Decision of 18 March 2008, No. 33375/03 – Hülsmann v. Germany; Judgment of 15 September 2011, No. 17080/07, para. 80 – Schneider v. Germany. 86 See ECtHR, Judgment of 1 June 2004, No. 45582/99, para. 37 – Lebbink v. The Netherlands. 87 ECtHR, Decision of 13 February 2001, No. 47160/99, para. 34 – Ezzouhdi v. France.

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5 CRC. Furthermore, at European regional level, a family relationship can even be evidenced by a potential relationship; for example, a relationship which could develop between the biological father and a child born out of wedlock.88 16 In contrast, a more restrained approach of the ECtHR was initially seen in regard to homosexual relationships.89 But again, the Court, in the face of increasing social and legal recognition of same-sex relationships within the States Parties, has stated recently that the relationship of a “cohabiting same-sex couple in a permanent de facto partnership” also falls within the concept of family.90 This is true even if the same-sex couple does not live together permanently91 and irrespective of the fact whether the States Parties recognise same-sex marriages.92 Also, the CJEU has lately found that Member States have the obligation to recognise a marriage between persons of the same sex concluded in another Member State in order to grant a derived right of residence to a third-country national. Although Member States are free to decide whether or not to allow marriage for persons of the same sex,93 such recognition for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law does not undermine the institution of marriage in the first Member State.94 A marriage of convenience, regardless of whether it includes a heterosexual or homosexual couple, does however not enjoy the protection of family life.95 Once family life is formed, it ends only in exceptional situations, for instance through circumstances of adoption establishing a new family or through temporary State welfare measures.96 The death of a family member does not prevent the application of Article 8 ECHR.97 17 All human rights conventions protect the privacy and intimacy of family relationships from State intervention, and are therefore conceived primarily as civil rights against State interference. Article 8 ECHR and Article 17 ICCPR demonstrate the close connection between family and private life through their defensive legal function against arbitrary or unlawful State interference. In this context, for a long time, the child was however treated as a dependent, invisible and passive family member who was

88 ECtHR, Decision of 29 June 1999, No. 27110/95 – Nylund v. Finland; Decision of 21 December 2010, No. 20578/07, para. 62 – Anayo v. Germany; Judgment of 15 September 2011, No. 17080/07, para. 81 – Schneider v. Germany. 89 See ECtHR, Decision of 10 May 2001, No. 56501/00 – Estevez v. Spain; Judgment of 24 July 2003, No. 40016/98 – Karner v. Austria. – In the 1950 s, the ECtHR still employed the language of crime and pathology when describing homosexuality, see, e.g., ECtHR, Judgment of 17 December 1955, No. 104/55 – W.B. v. Germany. This attitude only changed in the early 1980 s, see ECtHR, Judgment of 22 October 1981, No. 7525/76 – Dudgeon v. The United Kingdom. 90 ECtHR, Judgment of 24 June 2010, No. 30141/04, para. 94 – Schalk and Kopf v. Austria; Judgment of 9 June 2016, No. 40183/07, paras 36 et seq. – Chapin and Charpentier v. France; Judgment of 14 December 2017, No. 26431/12, 26742/12, 44057/12, 60088/12, para. 143 – Orlandi v. Italy; Judgment of 23 February 2016, No. 68453/13, paras 61 et seq. – Pajic v. Croatia. 91 ECtHR, Judgment of 7 November 2013, Nos. 29381/09 and 32684/09, para. 73 – Vallianatos and Others v. Greece. 92 ECtHR, Judgment of 16 July 2014, No. 37359/09, paras 61, 69 – Hämäläinen v. Finland; Judgment of 21 July 2015, No. 18766/11, para. 190 – Oliari v. Italy. 93 CJEU, Judgment of 24 November 2016, Case C‑443/15, ECLI:EU:C:2016:897, para. 59 – Parris. 94 CJEU, Judgment of 5 June 2018, Case C-673/16, ECLI:EU:C:2018:385, para. 45 – Coman and Hamilton. As to the development of the CJEU’s jurisprudence on the matter see D Kochenov/U Belavusau, Same-Sex Spouses: More free movement, but what about marriage?, Common Market Law Review 57 (2020), p. 227, at 235 et seq. 95 ECtHR, Decision of 6 November 1980, No. 7654/76 – van Oosterwijck v. Belgium. 96 T Marauhn/J Thorn, in: O Dörr/R Grote/T Marauhn (eds.), EMRK/GG, Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz, 2nd edn. 2013, Chapter 16, mn. 43. 97 ECtHR, Decision of 30 October 2001, No. 37794/97, paras 35 et seq. – Pannulo & Forte v. France.

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at the mercy of parental (private) authority.98 It is largely thanks to the CRC that the relationship between the State and family in view of the status of children has changed. The privacy of the family is no longer “sacrosanct”; instead States Parties are required to increase their involvement in internal family relations where the child’s welfare is significantly threatened.99 Therefore, all modern human rights treaties now respect a family’s right to privacy and establish defensive rights against State interference; but simultaneously they also obligate States Parties to intervene in internal family relations when a child’s welfare is severely endangered. In particular, the ECtHR has highlighted that Article 8 ECHR essentially aims to protect the individual against arbitrary interference by the public authorities. However, a positive obligation can arise from the duty of the States Parties to engage, which is also a part of an effective protection of private or family life.100 Encompassed here are both the creation of statutory provisions as well as the obligation of public authorities to protect and support family relationships. Thus, Article 8 ECHR entails an obligation upon the State to ensure that the child is fully integrated in the family from birth, irrespective of whether he or she is born in or out of wedlock.101 The State must also ensure that the relationship between family members can develop normally, especially the relationship of the biological parents or a parent to their child when this best serves the child’s interests,102 but also in regard to the relationship between siblings.103 These obligations may even include measures having a third-party effect in order to protect the family and private life with respect to relations among individuals.104 If the State allows arbitrary intrusion into the right to respect for family and private life by third parties, it acts in violation of its obligation to protect and ensure family life under Article 8 ECHR.105 In the context of the child’s status in family, the question often arises whether chil- 18 dren have any duties toward their parents as well. The CRC does not contain any provisions in this regard. At the drafting stage, a proposal to include the child’s duty to respect the parents and to give them assistance in case of need was discussed but finally rejected, since it raises difficulties for the States Parties to ensure and to report on their compliance with such a rule.106 It is only Article 31 ACRWC which expressly mentions the responsibilities of every child toward his or her family.

98 CRC Committee, Recommendations, Day of General Discussion: Role of the Family, CRC/C/34, 8 November 1994, para. 192. 99 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 67 et seq. See also → Article 9 mns. 5 et seq. 100 ECtHR, Judgment of 6 February 1981, No. 6289/73, paras 32 et seq. – Airey v. Ireland; see also ECtHR, Judgment of 15 September 2011, No. 17080/07, paras 82 et seq. – Schneider v. Germany. 101 ECtHR, Judgment of 13 June 1979, No. 6833/74, para. 31 – Marckx v. Belgium. 102 ECtHR, Judgment of 26 February 2004, No. 74969/01, para. 43 – Görgülü v. Germany; Judgment of 8 July 2003, No. 31871/96, para. 66 – Sommerfeld v. Germany; Judgment of 15 September 2011, No. 17080/07, paras 93 et seq. – Schneider v. Germany. As to the limits in regards of the best interests of the child see ECtHR, Decision of 22 March 2012, No. 45071/09, paras 70 et seq. – Ahrens v. Germany; Judgment of 26 July 2018, No. 16112/15, paras 60 et seq. – Fröhlich v. Germany. 103 ECtHR, Judgement of 6 April 2010, No. 4694/03 – Mustafa and Armağan Akin v. Turkey. 104 ECtHR, Judgment of 26 March 1985, No. 8978/80, para. 23 – X and Y v. The Netherlands; Decision of 12 July 2005, No. 41138/98, para. 93 – Moldovan v. Romania. 105 M Palm-Risse, Der völkerrechtliche Schutz von Ehe und Familie, 1990, p. 248. 106 See O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 170.

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[Right to Life]

Article 6 [Right to Life] 1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right to Life (Article 6 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Right to Survival and Development (Article 6 para. 2 CRC) . . . . . . . . . . . . . . . . . IV. Embedding of Article 6 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 15 22

I. Generalities Article 6 CRC, together with Articles 2, 3 and 12 CRC, constitutes a “general principle” of the Convention.1 Since the right to life and the right to survival and development are essential preconditions to the enjoyment of any of the rights protected in the CRC, they apply to all considerations relating to the promotion and protection of the rights of the child.2 Without guaranteeing and protecting the right to life, to survival and development, all other Convention rights would be meaningless.3 In particular, the right to life is the precondition for any further rights contained in the CRC. Its inclusion in the Convention is based on the recognition that individual rights cannot be effectively protected in isolation.4 However, the interdependence between the right to life as a general principle and all other Convention guarantees shall not obscure the fact that Article 6 CRC is a genuine individual right and not a mere programmatic principle.5 The article comprises three separate, but nonetheless interdependent rights: the right to life, the right to survival and the right to development. It protects the lifespan of the child from its birth until the child reaches legal adulthood.6 Article 6 CRC, as a whole, aims to ensure that the child is not deprived of life, that he or she receives support for the physical survival, and that he or she is given the means necessary to develop the individual potential to the maximum. 2 The right to life is a familiar inclusion in all human rights instruments (see, e.g., Article 3 UDHR, Article 6 ICCPR, Article 10 ICRPD, Article 2 ECHR, Article 4 ACHR, Article 4 ACHPR, to name a few). Moreover, its legitimacy is rarely if ever questioned, since it is the basis to and for the realisation of all other human rights.7 Yet, the right 1

1 See CRC Committee, General Guidelines for Periodic Reports CRC/C/5, 1991, para. 13; General Guidelines for Periodic Reports, CRC/C/58, 1996, paras 40-41; General Comment No. 5, CRC/GC/2003/5, 2003, para. 12. Further see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 127. 2 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 293, 450 et seq. 3 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mns. 1, 7. 4 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 293. 5 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 23. 6 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 144 and 146 et seq. 7 See C Tomuschat, The Right to Life – Legal and Political Foundations, in: idem/E LaGrange/S Oeter (eds.), The Right to Life, 2010, p. 3. See also Human Rights Committee, General Comment No. 6: Right to life, HRI/GEN/1/Rev.9 (Vol. I), 1982, p. 176, para. 1; General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 2.

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to life, in its manifestation as a right to survival and development in the sense of Article 6 para. 2 CRC is a relatively recent addition to international human rights law. It was suggested to the Working Group of the Commission on Human Rights on the draft of Article 6 CRC by the Indian delegation. The original proposal concerned only the obligation of States Parties to undertake to create an environment, within their capacities and constitutional processes, which ensures, to the maximum extent possible, the survival and healthy development of the child.8 Although the right to social and economic development of the child had been established in a similar way in Article 22 ACHPR, the same result could not be achieved for the right to survival. Therefore, the discussions in the drafting process of the CRC focused mainly on the definition of the concepts of survival. It was observed that life and survival were complementary and not mutually exclusive.9 Consequently, the Working Group included alongside the general right to life the guarantees to a child’s right to survival and development.10 The child’s right to development was aimed at closing the gap between the right to life and the right to survival in order to establish a life-survival-development continuum.11 The rights to survival and development of the child remain exposed to various risks. 3 According to estimates by UNICEF, 8.8 million children died worldwide in 2009 from extreme poverty, starvation and treatable diseases.12 In 2018, the total number of deaths among children and young adolescents under 15 years of age dropped to 6.2 million. Still, one child or young adolescent died every five seconds in 2018.13 Also, in Western industrial countries such as Germany, children are increasingly growing up in difficult circumstances.14 Despite slight improvements, one in four children (persons below the age of 18 years) in Europe live at risk of poverty or social exclusion.15 The survival of children must be ensured regardless of their age; the duty arising from Article 6 para. 2 CRC also applies in relation to young people and adolescents. They must be adequately protected against risks relevant to their particular age groups, such as sexually transmitted diseases and street crime.16 The CRC Committee has explicitly linked the right to development of adolescents to measures to help them to thrive, explore their emerging identities, beliefs, sexualities and opportunities, balance risk and safety, build capacity for making free, informed decisions and life choices, and successfully navigate the transition into adulthood.17 These development goals of Article 6 CRC are facilitated, and sometimes challenged, by the digital environment and the media as enshrined in Article 17 CRC.18 Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, para. 14. Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, para. 18. See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 293. 10 For more detail see Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, paras 21-26. Further see T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 577. 11 N Peleg, The Child’s Right to Development, 2019, p. 87-88. 12 See G Gysi, Wie viel Armut verträgt das Kindeswohl?, Familie-Partnerschaft-Recht 2009, p. 572, at 572. 13 See UNICEF, Levels & Trends in child Mortality, Report, 2019, p. 4 et seq. 14 See Federal Ministry of Labour and Social Affairs, The German Federal Government’s 5 th Report on Poverty and Wealth, 2017, p. 5, 9 et seq., 25 et seq. For more detail see S Schmahl, in: M Schmidt-Kessel (ed.), German National Reports on the 20th International Congress of Comparative Law, 2018, p. 483, at 484 et seq. 15 See FRA, Annual Report 2014, p. 127; Annual Report 2016, p. 137; Annual Report 2017, p. 175; Annual Report 2018, p. 177; Annual Report 2019, p. 179. 16 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 41. 17 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 16. 18 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 493. See also → Article 17 mn. 3. 8

9

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[Right to Life]

II. Right to Life (Article 6 para. 1 CRC) The right to life in Article 6 para. 1 CRC, as in Article 6 para. 1 ICCPR, forms together with Article 37 lit. c CRC, which refers to the “inherent dignity of the human person”, the only Convention rights designated as an “inherent” right of every human being.19 This reference is made due to the natural law philosophies and approaches on the one hand,20 and its status as jus cogens within the international legal order on the other.21 In order to avoid any misunderstanding: the right to life is not the right to obtain and maintain life but the right to be free to live and the right of everybody – and of every child – not to be arbitrarily deprived of his or her life.22 In addition, the concept of an “inherent right” allows the conclusion that the right to life cannot be understood narrowly, but requires rather a wide interpretation in keeping with the meaning of survival and development. The CRC Committee clearly points to and assumes that the right to life under Article 6 CRC concerns individuals’ entitlement to be free from acts and omissions intended or expected to cause their unnatural or premature death, and to enjoy a life with dignity.23 Against this background, the right to life must be classified as inalienable and non-derogable.24 Such a classification is not expressly stipulated in Article 6 CRC. However, due to its similarity to the right to life in Article 6 ICCPR, read in conjunction with the derogation clause under Article 4 para. 2 ICCPR, the non-derogability (not: the absoluteness) of the right to life even in times of emergency can be safely assumed.25 5 The wording of Article 6 CRC is not clear as to whether the right to life of the child exists before birth. The fact that Article 6 para. 1 CRC states an “inherent” right to life suggests that the life protected by Article 6 CRC begins with birth.26 The majority of States had rejected an express reference to the moment of conception as the beginning of the protection of life or any other reference to the unborn child or the foetus during the negotiations for the preparation of the Convention.27 Also in view of Article 1 CRC, it can be assumed that the unborn child does not fall under the protection of Article 4

19 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 126 et seq. 20 E Wicks, The Meaning of “Life”: Dignity and the Right to Life in International Human Rights Treaties, Human Rights Law Review 12 (2012), p. 199 et seq. See also J Tobin, Justifying Children’s Rights, International Journal of Children’s Rights 2013, p. 395, at 426. 21 See IAComHR, Decision of 16 October 1996, Case 11.436, Report 47/96, para. 79 – Victims of the Tugboat “13 de Marzo” v. Cuba. 22 M Bossuyt, International Human Rights Protection, 2016, p. 9. See also CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 32. 23 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 29. See also Human Rights Committee, General Comment No. 6: Right to life, HRI/GEN/1/Rev.9 (Vol. I), 1982, p. 176, paras 1, 5; General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 3. Also the ECtHR, the IACtHR and the African Commission on Human and Peoples’ Rights have adopted a similar approach. For a full account on this issue see N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 195. 24 Similarly, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 6.08. 25 See Human Rights Committee, General Comment No. 6: Right to life, HRI/GEN/1/Rev.9 (Vol. I), 1982, p. 176, para. 1; General Comment No. 26: Right to Life, CCPR/C/GC/36, 2018, para. 67. 26 See R Bethke, Das Übereinkommen der Vereinten Nationen über die Rechte des Kindes und seine Umsetzung in der Bundesrepublik Deutschland, 1996, p. 55. 27 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 133 et seq.; M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 41. Further see → Preamble mn. 5.

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6 CRC.28 When such a proposal to include the protection of the foetus into Article 6 CRC was discussed in 1988, several members of the Working Group observed that the Group had agreed not to reopen the debate concerning the moment at which life begins.29 As a consequence, the view taken during drafting was that the decision as to whether life should extend to some point before birth was a matter left to the discretion for each State Party.30 Therefore, the States Parties are not obliged to prohibit, limit or criminalise abortions. By contrast, they are entitled to adopt their own position as to whether childhood and human life begins at the moment of conception, at some point during pregnancy, or upon the birth of a child.31 They remain also free to extend the right to life under Article 6 para. 1 CRC to prenatal life.32 On the other hand, the Human Rights Committee points to the duty of States towards women and girls to give support in cases of unwanted pregnancies and to ensure that they must not resort to secret and dangerous abortions.33 That abortion per se does not violate the right to life in Article 6 para. 1 CRC is also implicit in the CRC Committee’s work.34 By no means compatible with Article 6 para. 1, read in conjunction with Article 2 6 CRC, are selective abortions and infanticide. In some States, there is still a tendency to condone the abortion of female foetus because male offspring are considered “more valuable”.35 Also worrying in terms of the Convention is the abortion after a diagnosis of a disability of the embryo, as a negative consequence of existing family planning policies and societal attitude. The CRC Committee recommends that States Parties strengthen the implementation of existing laws against selective abortions and infanticide and take all necessary measures to eliminate any negative attitude towards girls and children with disabilities.36 In a similar way, modern methods of preimplantation diagnostic have been criticised because they allow severe genetic diseases to be recognised at an early stage during pregnancy and, in doing so, open the doors for forms of selective breeding.37 On the other hand, the Convention remains silent with respect to the issue of abortions and the legal personality of an unborn child. Therefore, there remains the concern as to how the CRC Committee’s views with respect to selective abortions fall within its mandate. 38 Although the wording of Article 6 para. 1 CRC does not give any clue, it is clear 7 that the right to life is not protected in human rights law in an absolute manner. Article 28 29

seq.

See → Article 1 mn. 8. Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, paras 18 et

30 N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 191. 31 N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 191. 32 See R Bethke, Das Übereinkommen der Vereinten Nationen über die Rechte des Kindes und seine Umsetzung in der Bundesrepublik Deutschland, 1996, p. 56; P Alston, The Legal Framework of the Convention on the Rights of the Child, Bulletin of Human Rights 91/2 (1992), p. 1, at 3. 33 Human Rights Committee, General Comment No. 28: The equality of rights between men and women, CCPR/C/21/Rev.1/Add.10, 2000, para. 10. 34 See, e.g., CRC Committee, Concluding Observations: Costa Rica, CRC/C/CRI/CO/4, 2011, para. 64 c; Tonga, CRC/C/TON/CO/1, 2019, para. 52 c. See also → Article 1 mn. 7. 35 See CRC Committee, Report on the eighth session: General Discussion on the girl child, CRC/C/38, 1995, para. 286. 36 CRC Committee, Concluding Observations: India, CRC/C/15/Add.115, 2000, para. 49; CRC/C/IND/CO/3-4, 2014, paras 33-34; China, CRC/C/CHN/CO/2, 2005, paras 28-29. 37 See, for instance, S Kunz-Schmidt, Präimplantationsdiagnostik (PID) – der Stand des Gesetzgebungsverfahrens und der aktuellen Diskussion, Neue Justiz 2011, p. 231-239. 38 Rightly so, C Dillard, Prospective Parents and the Children’s Rights Convention, American University International Law Review 25 (2010), p. 485, at 506 et seq.; N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 192. See also → Article 1 mn. 9.

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6 para. 1 CRC must be interpreted in the context of all other applicable human rights treaties. For instance, Article 6 para. 1, sentence 3 ICCPR determines that “no one shall be arbitrarily deprived of his life”. Positively expressed, this indicates that there are means of performing lawful and non-arbitrary homicides.39 The standard, however, is exceptionally high.40 As the Human Rights Committee asserts, even those exceptional circumstances leading to deprivations of life which are not arbitrary per se must be applied in a manner which is not arbitrary in fact. Such exceptional measures should be established by law and accompanied by effective institutional safeguards.41 Moreover, the notion of arbitrariness must include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as missing elements of reasonableness, necessity and proportionality.42 Killing can also be justified on particular exceptional grounds according to Article 2 para. 2 ECHR, for example, if death is the result of force which is absolutely necessary to defend any person from unlawful violence.43 The principles of these provisions are applicable to the interpretation of Article 6 CRC as well. However, given the lower cognitive capacity and the normal physical inferiority of children, any application of such justifications would only be admissible in extreme cases (e.g., school killing sprees), where the use of force resulting in the death of a child was absolutely necessary to defend against the threat posed.44 8 Pursuant to Article 15 para. 2 ECHR, the scope of the right to life in Article 2 para. 1 ECHR does not extend to deaths resulting from lawful acts of war. Such actions are also not classified as arbitrary by Article 6 para. 1, sentence 3 ICCPR. However, it is questionable whether a transfer of this concept to Article 6 CRC can be reasonably affected. There are doubts as to whether the killing of a child can ever constitute a legitimate act of war. According to international humanitarian law, the killing of combatants is, in principle, lawful.45 Civilians, in contrast, shall enjoy a high level of protection (see Article 27 of Geneva Convention IV), unless they play a direct role in hostilities (see Article 51 of the First Additional Protocol to the Geneva Conventions). The question of whether the killing of children can be considered a legitimate act of war is therefore largely determined by whether and to what extent the involvement of children in acts of war may be lawful. According to recent developments in international law that have been triggered mainly by Article 38 CRC as well as by the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (OPAC)46 and have found their expression also in Article 8 para. 2 lit. e no. vii ICC Statute, the use of child soldiers in general must be considered inadmissible. The consequence of this proscription is that the killing of a 39 See Human Rights Committee, General Comment No. 6: Right to life, HRI/GEN/1/Rev.9 (Vol. I), 1982, p. 176, para. 6; General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 10. 40 N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 189, 201. 41 Human Rights Committee, General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, paras 10, 16. 42 Human Rights Committee, General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 12. See also UN General Assembly, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, A/69/265, 2014, para. 47. 43 For more detail see ECtHR, Judgment of 27 September 1995, No. 18984/91, paras 146-147 – McCann and Others v. The United Kingdom; Judgment of 4 May 2001, No. 24746/94, paras 102-104 – Hugh Jordan v. The United Kingdom; Judgment of 24 February 2005, No. 57950/00, para. 173 – Isayeva v. Russia. Further see S Schmahl, in: C Tomuschat/E Lagrange/S Oeter (eds.), The Right to Life, 2010, p. 233, at 239 et seq. 44 Similarly, M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 37. 45 See K Ipsen, Völkerrecht, 7th edn. 2018; § 62 mns. 8, 9. 46 See → Article 38 mn. 6.

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child soldier can only be a legitimate act of war if the child poses an immediate and concrete danger within the meaning of Article 51 para. 3 of the First Additional Protocol to the Geneva Conventions.47 Nevertheless, the CRC Committee refuses, in general, to differentiate between categories of children in armed conflicts and underscores that also child combatants deserve special protection as victims of war.48 Different from the situation of adult convicts, where the death penalty is allowed pro- 9 vided certain conditions are satisfied (see Article 6 para. 2 ICCPR), the prohibition of capital punishment for acts of minors amounts to jus cogens49 and is found explicitly in Article 6 para. 5 ICCPR and Article 37 lit. a CRC.50 Reservations to Article 6 para. 5 ICCPR, such as from the United States of America, are considered by the Human Rights Committee as inadmissible since they violate the object and purpose of the ICCPR.51 Also, the CRC Committee has addressed the issue of the death penalty within the context not only of Article 37 lit. a CRC but also of Article 6 CRC. It recommends the States Parties, which still apply the death penalty to children aged 16 and 17 years in contravention to Article 37 lit. a CRC, to intensify their efforts to ensure that the right to life of all children are in line with Article 6 CRC.52 The CRC Committee further remains concerned at reports that a person was sentenced to death for an offence committed while he or she was under 18 years of age and urges the States Parties not to carry out the death penalty on children or on persons who were under the age of 18 at the time of the commission of the crime. 53 Interestingly, the CRC Committee has also addressed life imprisonment, torture and gang-related violence in the context of Article 6 CRC, 54 although these issues are tackled by Article 37 CRC.55 This fact demonstrates two aspects: the CRC Committee does not always clearly differentiate between the provisions set forth in the Convention; and it obviously follows a (too) expansive understanding of the right to life under Article 6 para. 1 CRC.56 The obligation upon States Parties as established in Article 6 para. 1 CRC to recognise 10 the inherent right to life of every child arises already from the universal human right to life in Article 6 para. 1 ICCPR. The States Parties must therefore, firstly, respect this right and refrain from any unlawful or arbitrary interference or action which might violate the child’s right to life.57 Such threats on the part of State authorities to children’s 47 Similarly, M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mns. 30 et seq. 48 CRC Committee, Concluding Observations: Myanmar, CRC/C/15/Add.237, 2004, para. 67; Sierra Leone, CRC/C/15/Add.166, 2000, para. 87; United Kingdom, CRC/C/15/Add.188, 2002, para. 53. See also → Article 38 mn. 16. 49 T Schilling, Internationaler Menschenrechtsschutz, 3 rd edn. 2016, mn. 171. 50 See → Article 6 mn. 22, → Article 37 mns. 3 et seq. 51 Human Rights Committee, General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, 1994, para. 8. 52 See CRC Committee, Concluding Observations: Liberia, CRC/C/LBR/CO/2-4, 2012, paras 37 et seq.; Nigeria, CRC/C/NGA/CO/3-4, 2010, paras 32 et seq. 53 CRC Committee, Concluding Observations: Egypt, CRC/C/EGY/CO/3-4, 2011, paras 38 et seq.; Sudan, CRC/C/SDN/CO/3-4, 2010 paras 35 et seq. See also → Article 37 mn. 7. 54 See, e.g., CRC Committee, Concluding Observations: Egypt, CRC/C/EGY/CO/3-4, 2011, para. 38; Argentina, CRC/C/ARG/CO/3-4, 2010, paras 37 et seq.; Algeria, CRC/C/DZA/CO/3-4, 2012, para. 33 a; Syrian Arab Republic, CRC/C/SYR/CO/3-4, 2012, para. 37; Paraguay, CRC/C/PRY/CO/3, 2010, paras 29 et seq.; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 32; Jamaica, CRC/C/JAM/CO/3-4, 2015, para. 25. 55 See → Article 37 mns. 1 et seq. 56 Different assessment by N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 208 et seq. 57 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6, p. 37-38.

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lives and survival can occur, for example, when the police raid and kill street children, as it has happened in the Candelária massacre in Rio de Janeiro in 1993.58 11 Secondly, far from being only a negative obligation of non-interference, the States Parties must also guarantee the right to life through the adoption of positive measures. Failing to protect the right to life makes the realisation of all other human rights lack meaning.59 Therefore, the States Parties have the duty to protect the right to life against any interference by third parties and non-State actors (indirect horizontal effect) and the obligation to fulfil, which in turn incorporates an obligation to facilitate the enjoyment of human rights and to provide services.60 The positive elements of this duty are made particularly clear in the wording of Article 6 para. 1, sentence 2 ICCPR. The Human Rights Committee therefore states that in any case, the obligation to guarantee the right to life mandates positive action on the part of the States Parties.61 The same applies to the obligation under Article 6 para. 1 CRC. Also, here, the right to life imposes an obligation on States Parties to take all reasonable preventive measures in order to protect children against infringements of their right to life. In practice, this imposes a States’ due diligence obligation to undertake reasonable positive measures in response to foreseeable threats to life originating from private persons or entities, whose conduct is not attributable to the State.62 States Parties are also under an obligation to investigate, prosecute and punish all violations of a child’s right to life.63 The CRC Committee has adopted this procedural duty upon States to investigate any death where there is a reasonable prospect that the cause of death may involve a violation of the right to life and has recommended that States ensure child-friendly mechanisms to thoroughly investigate complaints of killings and that the alleged perpetrators are brought to justice.64 Furthermore, the CRC Committee has indicated that child victims and their families must be provided with adequate support, reparation and compensation for actual or threatened violations.65 Furthermore, the States Parties have the duty to take

58 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 23. See also M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, p. 18 et seq.; N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 144. 59 See IACtHR, Judgment of 19 November 1999, No. 63, para. 144 – Villagrán-Morales v. Guatemala. 60 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mns. 38 et seq. 61 Human Rights Committee, General Comment No. 6: Right to life, HRI/GEN/1/Rev.9 (Vol. I), 1982, p. 176, para. 5; General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 18. 62 See Human Rights Committee, General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 21. See also ECtHR, Judgment of 28 October 1998, No. 23452/94, paras 115 et seq. – Osman v. The United Kingdom; Judgment of 9 June 2009, No. 33401/02, para. 128 – Opuz v. Turkey. For a fuller account see N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 202 et seq. 63 Human Rights Committee, General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, paras 27-29. See also V Rusinova, The Duty to Investigate the Death of Persons Arrested and Detained by Public Authorities, in: C Tomuschat/E LaGrange/S Oeter (eds.), The Right to Life, 2010, p. 65. 64 See, e.g., CRC Committee, Concluding Observations: Colombia, CRC/C/COL/CO/4-5, 2015, para. 24 b; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 33 b; El Salvador, CRC/C/SLV/CO/3-4, 2010, para. 32 a. 65 See CRC Committee, Concluding Observations: Colombia, CRC/C/COL/CO/4-5, 2015, para. 24 c; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 33 c; El Salvador, CRC/C/SLV/CO/3-4, 2010, para.32 a. See also Human Rights Committee, General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 28. See also N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 189, 205.

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all reasonable measures to fulfil and promote children’s right to life.66 In sum, Article 6 para. 1 CRC should be interpreted in broad terms to include both negative and positive obligations. The right to life protects children against both intentional and unintentional actions by State authorities or third parties, as well as direct and indirect States’ actions or omissions.67 Accordingly, the States Parties must take various legislative, administrative, judicial and other positive measures to safeguard the life of children in order to protect against unlawful and arbitrary deprivation of life, including preventive measures to protect children from threats to their life, the prosecution and punishment of those responsible for the death of a child, and the provision of compensation and reparation for victims.68 In practice, States Parties must, above all, enact effective laws to protect children against threats to their life from both State and non-State actors in satisfaction of their obligation to respect and protect a child’s right to life. This will typically require the adoption of appropriate criminal laws that make it an offence to take the life of a child unlawfully and/or arbitrarily.69 Positive measures under Article 6 para. 1 CRC have particularly to be taken with 12 respect to children in specific vulnerable situations. Thus, for instance, the need to protect children in street situations requires an interpretation of the right to life that encompasses the minimum conditions for a life with dignity. 70 Children with disabilities, including those with albinism, are especially vulnerable to be abused by third parties, as in some cultures they are considered as a “bad omen” that may “tarnish the family pedigree”. They are often killed or discarded upon birth.71 Positive measures for the protection of life of children with disabilities must therefore be taken in all areas of law, especially in the areas of criminal, family, police and labour law. Homicides and other life-threatening actions against children with disabilities must be qualified as a crime and punished with penalties equivalent to those attached to the homicide of an adult.72 In addition, the CRC Committee has regularly expressed deep concern at the direct and indirect threat posed by armed conflicts to the child’s right to life. Even if this statement is correct in a general way, it is deplorable that the CRC Committee makes no clear distinction between international and non-international armed conflicts, even when caused by non-State actors.73 Moreover, the CRC Committee does not always address the complex relationship between human rights law and international humanitarian

66 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mns. 18 et seq.; see also W Kälin/J Künzli, The Law of International Human Rights Protection, 2009, p. 275 et seq. 67 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 144. 68 See M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mns. 24 et seq.; N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 199. 69 N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, p. 199. 70 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, paras 29, 32. 71 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 31. See also CRC Committee, Concluding Observations: Tanzania, CRC/C/TZA/CO/3-5, 2015, para. 29; Guinea-Bissau, CRC/C/GNB/CO/2-4, 2013, para. 28; Burundi, CRC/C/BDI/CO/2, 2010, para. 33. Further see → Article 2 mn. 29. 72 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 128 et seq. 73 See CRC Committee, Concluding Observations: Israel: CRC/C/ISR/CO/2-4, 2013, paras 25 et seq.; Iraq, CRC/C/IRQ/CO/2-4, 2015, para. 23; Colombia, CRC/C/COL/CO/4-5, 2015, para. 23; Afghanistan, CRC/C/AFG/CO/1, 2011, para. 29; Philippines, CRC/C/PHL/CO/3-4, 2009, para. 32; Syrian Arab Republic, CRC/C/SYR/CO/5, 2019, para. 19.

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law in accurate terms.74 Yet, the CRC Committee has rightly implored States Parties to implement measures to mitigate the collateral effects of armed conflicts, such as forcible displacement, high rates of deaths caused by preventable diseases, the girl victims of sale and sexual slavery, malnutrition and poverty.75 Furthermore, it has correctly pondered that the short- and long-term traumas of any armed conflict can have an overall negative impact on children’s survival and development. The indivisibility of all rights enshrined in Article 6 CRC requires States Parties to install post-conflict rehabilitation programmes to children.76 Also, Article 39 CRC calls for such a rehabilitation and restorative programme.77 Finally, harmful traditional practices against the girl child, which are forbidden under Article 24 para. 3 CRC, can also undermine children’s right to health, and some of these practices, such as “honour killings” and female genital mutilation, can also cause a child’s death or undermine the rights of survival and development.78 The CRC Committee regularly condemns these practices79 and urges the States Parties to implement awareness-raising campaigns, education programmes and legislation aimed at changing prevailing attitudes, and address gender roles and stereotypes that contribute to harmful practices.80 13 Positive obligations emanating from Article 6 para. 1 CRC concern also the right to life, survival and development of children in the context of international migration. While migration can provide opportunities to improve living conditions and escape from abuses, migration processes can pose risks, including physical harm and psychological trauma.81 At the same time, the lack of regular and safe channels for children and families to migrate contribute to children taking life-threatening and extremely dangerous migration journey.82 In the view of the CRC Committee, the obligations of States Parties include the prevention and reduction – to the maximum extent possible – of migration-related risks faced by children which may jeopardise the right enshrined in Article 6 CRC.83 States, especially those of transit and destination, should devote special attention to the protection of undocumented and unaccompanied children and take positive measures to avoid such vulnerable circumstances. This duty, which is also enshrined in Article 22 CRC, includes legislative protection against refoulement, which requires States Parties to avoid the deportation or extradition of a child to another

74 See also → Article 38 mn. 8. Similar assessment by N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 214 et seq. 75 See, e.g., CRC Committee, Concluding Observations: Sri Lanka, CRC/C/LKA/CO/3-4, 2010, para. 33 b; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 36; Niger, CRC/C/NER/CO/2, 2009, paras 70 et seq.; Syrian Arab Republic, CRC/C/SYR/CO/5, 2019, para. 21. 76 CRC Committee, Concluding Observations: Australia, CRC/C/15/Add.79, 1997, para. 15; Libyan Arab Jamahiriya, CRC/C/15/Add.84, 1998, para. 14; Austria, CRC/C/15/Add.251, 2005, para. 40. 77 See → Article 39 mns. 4 et seq. 78 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 145. For more detail see → Article 24 mns. 26 et seq. 79 CRC Committee, Concluding Observations: Pakistan, CRC/C/PAK/CO/4, 2009, para. 38; Jordan, CRC/C/15/Add. 125, 2000, para. 36; Jordan, CRC/C/JOR/CO/4-5, 2014, para. 21. 80 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 24; CEDAW Committee/CRC Committee, General Comments No. 31 and No. 18, CEDAW/C/GC/31-CRC/C/GC/18, 2014, paras 30-86. 81 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 76. 82 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 41. 83 See CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 42.

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jurisdiction where there are substantial grounds for believing that there is a real risk that the child will be subject to treatment that will violate his or her right to life.84 A final concern of the CRC Committee within the context of the right to life is 14 accidental causes of death. Within this context, a particular concern is traffic accidents, 85 but also preventable domestic accidents that cause deaths.86 The CRC Committee calls upon States Parties to implement traffic and other awareness-raising campaigns, and to generally enforce child safety measures.87 Such recommendations represent a significant departure from the obligations associated with a traditional understanding of the right to life. It is doubtful whether they are still within the mandate of the CRC Committee under Article 6 CRC.88

III. Right to Survival and Development (Article 6 para. 2 CRC) With the protection of life alone, the States Parties do not completely fulfil their 15 obligations under Article 6 CRC. The obligation to protect the development of children, as established in Article 6 para. 2 CRC, demonstrates that the right to life must be understood in a comprehensive and holistic sense. International law has long held an explicit commitment to the development of children. The 1924 Geneva Declaration of the Rights of the Child89 proclaims that the child must be given the means requisite for its normal development, both materially and spiritually. Article 2 of the 1959 UN General Assembly Declaration90 reaffirms these commitments by providing that the child shall enjoy special protection to enable him or her to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.91 Against this background, the inclusion in the CRC of an explicit obligation to ensure the survival and development of children can be seen as a logical extension of this historical commitments to these objectives.92 Article 6 para. 2 CRC specifies the positive duties of the State in terms of the survival 16 and development of the child already following from Article 6 para. 1 CRC.93 As regards the survival of the child, it means that States Parties have the duty to take positive steps to prolong the life of children and to contribute to their ongoing physical survival.94 Elements that are hazards to a child’s physical survival include malnutrition, disease,

84 See → Article 22 mn. 25. In a similar vein, see also Human Rights Committee, General Comment No. 31: The nature of the general legal obligation imposed on States Parties to the Covenant, CCPR/C/21/ Rev.1/Add.13, 2004, para. 80; General Comment No. 36: Right to life, CCPR/C/GC/36, 2018, para. 30. 85 See, e.g., CRC Committee, Concluding Observations: Portugal, CRC/C/PRT/CO/3-4, 2014, para. 29; Slovenia, CRC/C/SVN/CO/3-4, 2013, para. 31; Cyprus, CRC/C/CYP/CO/3-4, 2012, para. 26. 86 CRC Committee, Concluding Observations: Guinea, CRC/C/GIN/CO/2, 2013, para. 40; Dominican Republic, CRC/C/DOM/CO/3-5, 2015, para. 21; Portugal, CRC/C/PRT/CO/3-4, 2014, para. 30. 87 See, e.g., CRC Committee, Concluding Observations: Portugal, CRC/C/PRT/CO/3-4, 2014, para. 30 a; Dominican Republic, CRC/C/DOM/CO/3-5, 2015, para. 22. 88 Different assessment by N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 219. 89 See → Introduction mn. 12. 90 See → Introduction mn. 14. 91 For a fuller account see N Peleg, The Child’s Right to Development, 2019, p. 36-39. 92 N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 220. 93 See → Article 6 mns. 11 et seq. 94 See Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, paras 19 et seq.

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lack of clean water, inadequate sanitation and the effects of drugs.95 Such measures overlap significantly with the entitlements of children under several provisions of the Convention such as Articles 26 to 29 CRC and Articles 32 to 36 CRC. The positive obligations under Article 6 para. 2 CRC are furthermore clarified through the provisions of Article 24 CRC which stipulate the requirements to protect health and to adequate nutrition and safe drinking water.96 This interdependence and overlapping relationship between survival and several rights under the Convention97 illustrates why the CRC Committee has listed Article 6 CRC as a “general principle” of the CRC.98 Yet, with regard to the survival of children under Article 6 para. 2 CRC, the CRC Committee has particularly expressed concern on the high infant mortality rate due to, for instance, intestinal infectious diseases and inadequate prenatal and postnatal care.99 States Parties are therefore called upon to introduce and maintain effective health programmes that prevent the spread of life-threatening diseases.100 The infant mortality rate in developing countries is many times higher than that of industrialised nations.101 Half of the 1.4 million children under the age of five who die in India are even newborns.102 However, infant mortality is mostly due to avoidable circumstances. Predominant causes include poverty, armed conflicts, inadequate treatment of curable diseases, malnutrition, lack of access to clean water, poor hygiene and a lack of health and educational resources.103 This overview shows that the States Parties are essentially responsible for the high number of child deaths. Therefore, pursuant to Article 6 para. 2 CRC, States Parties are obliged to keep records of child mortality and its causes, and to adopt positive measures to effectively combat it.104 In particular, States Parties need to improve their medical care, which also includes a provision of appropriate vaccination programmes to prevent and to counteract epidemics.105 17 Under the term of “survival”, the CRC Committee has also consistently expressed concern for the issue of child suicide. Whilst noting that child suicide may often be the result of social pressure,106 the CRC Committee urges States Parties to undertake 95 Declaration on the Survival, Protection and Development of Children, World Summit for Children, 30 September 1990, para. 6. 96 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 73; T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 578. 97 For a fuller account see J Sloth-Nielsen/S Philpott, The Intersection between Article 6 of the UN Convention on the Rights of the Child and Early Childhood Development, Stellenbosch Law Review 26 (2015), p. 295-317. 98 N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 222. 99 CRC Committee, Concluding Observations: Nepal, CRC/C/15/Add.261, 2005, para. 60; Burkina Faso, CRC/C/15/Add. 193, 2002, para. 38. 100 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2006, para. 10. See also M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 23. 101 Further see → Article 24 mn. 18. 102 CRC Committee, Concluding Observations: India, CRC/C/IND/CO/3-4, 2014, para. 63 a. See also JA Gathia/SV Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015 p. 122. 103 See, e.g., CRC Committee, Concluding Observations: Côte d'Ivoire, CRC/C/15/Add.155, 2001, para. 38; Burkina Faso, CRC/C/15/Add.193, 2002, para. 38. Further see M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 3. 104 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 41. See also → Article 24 mns. 15 et seq. 105 See → Article 24 mn. 15. 106 CRC Committee, Concluding Observations: Turkey, CRC/C/TUR/CO/2-3, 2012, para. 32; Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 31; CRC/C/KOR/CO/5-6, 2019, para. 19; Japan, CRC/C/JPN/CO/3, 2010, para. 42.

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positive actions that should focus on preventing the suicide of children. At least, it regularly complains of the high rate of suicide among children and adolescents in some States Parties and therefore calls on the national governments to intensify their efforts to prevent the suicide of minors. Corresponding counselling options, early detection procedures for mental health problems and other measures against undue pressure and stress should be taken.107 Such preventive measures should be supported by the provision of adequate social workers and psychological consultations for children at risk.108 The CRC Committee has explained that the term “development” must be understood 18 in its broadest sense as a holistic concept.109 The UN General Assembly’s Declaration on the Right to Development of 1986110 defines development in Article 1 as “ [...] an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”. This holistic view is also applicable to Article 6 para. 2 CRC. The development of the child is to be understood not only in a physical and material meaning, but also in an intellectual and psychological sense. It includes the physical, mental, spiritual, moral, psychological and social development of the child.111 The right to development is universal for all children, irrespective of their age, and thus includes adolescents. 112 The CRC Committee has identified additional risk factors, including early childhood diseases, poor sanitation and poverty.113 In general, it can be said that Article 6 para. 2 CRC is closely connected to the principle of non-discrimination under Article 2 para. 1 CRC. On many occasions, the CRC Committee suggests that discrimination on whatever grounds has a negative effect on child development and that it constitutes a violation of children’s right to survival and development.114 While the States Parties have a general obligation to guarantee the development of the 19 child, the primary responsibility for the survival and development of the child remains with his or her parents.115 Parental duties are separately contained in Article 5 and Article 18 CRC. The State safeguards the child’s development primarily by recognising the responsibility of parents in this respect and, secondly, by providing parents and legal

107 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 44 et seq.; Japan, CRC/C/JPN/CO/3, 2010, para. 42; Tonga, CRC/C/TON/CO/1, 2019, para. 50. 108 CRC Committee, Concluding Observations: Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 31; Japan, CRC/C/JPN/CO/3, 2010, para. 42. 109 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 31. 110 A/RES/41/128, 4 December 1986. 111 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 12; General Comment No. 16, CRC/C/GC/16, 2013, para. 18; General Comment No. 21, CRC/C/GC/21, 2017, para. 31. See also E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 8. 112 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 76. 113 CRC Committee, Concluding Observations: Nepal, CRC/C/15/Add.261, 2005, para. 60; Honduras, CRC/C/15/Add.24, 1994, para. 15; Madagascar, CRC/C/15/Add.218, 2003, para. 47; Ethiopia, CRC/C/15/ Add.146, 2000, para. 22; Democratic People’s Republic of Korea, CRC/C/PRK/CO/4, 2009, para. 44. 114 See, e.g., CRC Committee, Concluding Observations: Sierra Leone, CRC/C/15/Add.116, 2000, para. 40; France, CRC/C/15/Add.240, 2004, para. 16; Burundi, CRC/C/15/Add.113, 2000, para. 77; India, CRC/C/15/Add.228, 2004, para. 81. For more detail see N Peleg, The Child’s Right to Development, 2019, p. 97-102. 115 M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 61.

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guardians with appropriate support.116 This support can be performed in various ways, such as through the provision of institutions and child welfare establishments.117 The more vulnerable a child is, the greater is in principle the State’s involvement in ensuring the child’s development. Therefore, the State has a prominent role in regards to the protection of orphans, homeless and refugee children118 as well as in regards to children with disabilities119 and children of parents who have been incarcerated.120 20 The requirements established by Article 6 para. 2 CRC, that the survival and development of the child shall be guaranteed to the maximum extent, afford States Parties a certain discretion in respect to the actual measures to be taken. In this way, regard is paid to the economic circumstances and prevailing social and cultural conditions of the State. The right to development is largely related to economic, social and cultural rights, which according to Article 4, sentence 2 CRC, are subject to the available, particularly financial, resources of the State.121 Although general minimum limits cannot be set, a prohibition of insufficient, ineffective and inconsistent actions applies.122 This is particularly true when considering the interrelation between Articles 6 para. 2 CRC and Article 27 para. 1 CRC. States Parties should ensure that all children, including those in the context of international migration, have a standard of living adequate for their physical, mental, spiritual and moral development.123 Furthermore, States Parties must take various legislative, administrative, judicial and other positive measures to safeguard the development of children in order to protect against violence, abuse, exploitation, neglect and traditional harmful practices, such as genital mutilation, forced marriage and “virginity testing” of girls.124 21 In addition, the CRC Committee’s recent position on the States’ responsibilities under Article 6 para. 2 CRC goes beyond the management of the States’ activities and encompasses the actions of non-State actors.125 It concludes, for instance, that the activities and operations of business enterprises can impact on the realisation of Article 6 CRC in different ways. For example, environmental degradation and contamination arising from business activities can compromise children’s rights to health, food security, and

116 As regards the problematic reversal of the parent-State-relationship under Article 3 para. 2 CRC see → Article 3 mn. 19. 117 See Article 18 para. 2 CRC. 118 See, e.g., CRC Committee, Concluding Observations: Russian Federation, CRC/C/RUS/CO/3, 2005, para. 12; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 73; Turkey, CRC/C/15/Add. 152, 2001, para. 64; Greece, CRC/C/GRC/CO/2-3, 2012, para. 28; Sri Lanka, CRC/C/15/Add.40, 1995, para. 12. Further see M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mn. 61. 119 See, e.g., CRC Committee, Concluding Observations: Russian Federation, CRC/C/15/Add. 110, 1999, para. 40; Estonia, CRC/C/15/Add.196, 2003, para. 39; Sudan, CRC/C/15/Add. 190, 2002, para. 46; Latvia, CRC/C/LTV/CO/2, 2006, para. 40; Belgium, CRC/C/BEL/CO/3-4, 2010, para. 45. 120 CRC Committee, Concluding Observations: Bolivia, CRC/C/15/Add.256, 2005, para. 40; Mexico, CRC/C/MEX/CO/3, 2006, para. 40. 121 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 131 et seq. See also → Article 4 mns. 20 et seq. 122 N Peleg/J Tobin, Article 6, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 186, at 228. 123 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 43. 124 CEDAW Committee/CRC Committee, General Comments No. 31 and No. 18, CEDAW/C/GC/31CRC/C/GC/18, 2014, paras 16 et seq.; M Nowak, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 6, 2005, Article 6 mns. 24 et seq. For a fuller account on genital mutilation see → Article 24 mns. 26 et seq. 125 See T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 568. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 6.19.

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access to safe drinking water and sanitation.126 Thus, in order not to give Article 6 CRC a direct third-party effect, which would clearly contravene the ratio of international human rights protection, States Parties are called upon to provide safeguards for all kinds of environmental threats on the survival and development of children and ensure that such measures apply to all sectors of governance and the economy.127 All in all, the CRC Committee demands that States Parties ensure that the business sector adheres to a higher level of diligence with regard to the impact of their activities on children’s rights.128

IV. Embedding of Article 6 CRC into the System of International Human Rights Protection The right to life is also guaranteed in Article 3 UDHR, Article 6 ICCPR, as well as 22 in Article 2 ECHR and Article 2 of the EU Charter of Fundamental Rights. With regard to the life-sustaining treatment of children, the ECtHR underlines the States’ positive obligations following from Article 2 ECHR.129 In that regard, a fair balance must be struck between the competing interests of the child, those of his or her parents and the public order within the margin of appreciation afforded to States in such highly sensitive moral and ethical issues. However, the best interests of the child must be paramount.130 Article 6 para. 5 ICCPR contains an express prohibition of the death penalty for crimes committed by persons below 18 years.131 In Europe, the death penalty is completely abolished. The founders of the ECHR did not consider the death penalty to be inadmissible in every case, as shown in Article 2 para. 1, sentence 2 ECHR. The attitude to the capital punishment has, however, changed fundamentally over the past 35 years. In 1985, Additional Protocol No. 6 to the ECHR entered into force, prohibiting the imposition and execution of the death penalty in peacetime.132 In 2002, this Protocol was followed by Additional Protocol No. 13 to the ECHR on the complete abolition of the death penalty, even in times of war or analogous emergencies.133 Against this background, the Grand Chamber of the ECtHR ruled in the famous case Öcalan v. Turkey (2005) that, as a result of this development, the territories of the Member States of the Council of Europe have become a “death penalty-free zone”. Therefore, Article 2 para. 1, sentence 2 ECHR can be regarded as obsolete in terms of content. 134 The rights to survival and development are unique to children in the context of 23 international human rights law. No other universal human rights treaty acknowledges CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 18 et seq. Similarly, T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 569. 128 See, e.g., CRC Committee, Concluding Observations: Bangladesh, CRC/C/15/Add.221, 2003, para. 53; Thailand, CRC/C/THA/CO/2, 2006, para. 55. 129 ECtHR, Judgment of 5 June 2015, No. 46043/14, para. 124 – Lambert and Others v. France; Decision of 27 June 2017, No. 39793/17, paras 79 et seq. – Charles Gard and Others v. The United Kingdom. 130 ECtHR, Judgment of 26 November2013, No. 27853/09, para. 95 – X v. Latvia; Decision of 27 June 2017, No. 39793/17, paras 105-108 – Charles Gard and Others v. The United Kingdom. 131 See Human Rights Committee, Clive Johnson v. Jamaica, Views adopted on 20 October 1998, No. 592/1994, CCPR/C/64/D/592, para. 10.3. For more detail see M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 6 mns. 66 et seq. 132 ETS No. 114. 133 ETS No. 187. 134 ECtHR, Judgment of 12 May 2005, No. 46221/99, paras 163 et seq. – Öcalan v. Turkey. For more detail see S Schmahl, Die Abschaffung der Todesstrafe in Europa, DTIEV-Online No. 2/2011, p. 1, at 11 et seq. 126

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them.135 These rights have been recognised, however, at the regional level, in particular in Article 5 ACRWC.136 During the Convention drafting process, it was suggested that the right to a healthy development and the right to food should be explicitly mentioned as part of the child’s right to life and survival. 137 Although these proposals were ultimately rejected, Article 11 ICESCR encompasses explicitly the right to food. The CESCR Committee has drawn strong connections between this right and the right to life, since malnutrition and lack of adequate food can deprive a person of his or her right to life.138 Although this interpretation is plausible, such an approach should be rejected in terms of Article 6 CRC, since it is Article 24 CRC that specifically addresses this issue.

Article 7 [Identity Rights of the Child] 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right to Birth Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Right to a Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Right to Acquire a Nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Right to Knowledge of Origin and to Be Cared for by Parents . . . . . . . . . . . . . . . VI. Embedding of Article 7 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 9 11 16 26

I. Generalities 1

Article 7 CRC guarantees the child special identity rights endowed by birth, upon which the viability of many further Convention rights relies. Identity asserts a person’s existence and establishes his or her individuality while distinguishing him or her from others. The concept of identity is basic to the claim, guarantee and enjoyments of human rights.1 The relationship between Article 7 CRC and the other provisions under the Convention can thus be described as complementary, interpretative and enabling. In particular, the protection of the identity rights under Article 7 CRC contributes to the creation of several aspects of the child’s identity that have to be preserved by States

135 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 242. 136 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 146. 137 Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, paras 14 et seq. 138 See N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 146, with further references. 1 See M Freeman, The New Birth Right?, Identity and the Child of the Reproduction Revolution, International Journal of Children’s Rights 4 (1996), p. 273, at 283; U Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 400.

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authorities under Article 8 CRC.2 Article 7 CRC also plays a role in the interpretation of those provisions that concern the relationship between children and parents, such as Article 9 and 18 CRC, and, in general, for enabling the child to make use of his or her rights set forth in the Convention.3 Article 7 para. 1 CRC contains five separate rights. Whereas out of these five rights 2 under Article 7 para. 1 CRC, three of them, namely the right to birth registration, the right to a name, and the right to acquire a nationality, are widely recognised in international instruments,4 the rights to know and be cared for by one’s parents were, at least until the adoption of the African Charter on the Rights and Welfare of the Child in 1990, unique to the Convention.5 The drafting history indicates that all these five discrete rights were included in one provision to ensure the psychological stability of the child through his or her development to a person with a sense of self.6 Article 7 para. 2 CRC states, however, that the rights contained in Article 7 para. 1 3 CRC are to be implemented only in accordance with national law and with the States’ obligations under the relevant international instruments in this field. This restriction was included in an attempt to accommodate two potentially conflicting objectives.7 On the one hand, the drafters sought to avoid children from being stateless. On the other hand, States Parties desired to retain their power to determine the basis upon which they granted nationality. Yet, the requirement to act in accordance with national law and relevant international instruments is not only confined to a child’s right to a nationality. The wording in Article 7 para. 2 CRC that States “shall ensure the implementation of these rights” makes clear that it applies to all rights enshrined in Article 7 para. 1 CRC. 8 Furthermore, Article 7 para. 2 CRC imposes a mandatory burden on States Parties to take all appropriate measures to ensure the effective enjoyment of the rights under Article 7 para. 1 CRC. Although States Parties enjoy a level of discretion with respect to the measures they adopt for this purpose, they must be effective and consistent with the Convention as a whole.9 States are not allowed to defeat the object and purpose of Article 7 para. 1 CRC by relying on domestic law. Article 7 para. 2 CRC gives States merely a leeway with respect to their own cultural premises when adopting legislation to ensure the effective protection of the rights contained in Article 7 para. 1 CRC. 10

2 A MacDonald, The Rights of the Child: Law and Practice, 2011, p. 393; J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 239. Further see → Article 8 mn. 1. 3 J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 239. 4 See → Article 7 mns. 26 et seq. 5 J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 238. 6 Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 93-114. 7 As to the following see Commission on Human Rights, Report of the Working Group, E/CN.4/L.1542, 1988, para. 37; E/CN.4/1989/48, 1989, paras 93 et seq., 103 et seq. 8 J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 274. 9 See J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 274. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 7.11. 10 See CRC Committee, Concluding Observations: Seychelles, CRC/C/SYC/CO/2-4, 2012, para. 41; Thailand, CRC/C/THA/CO/3-4, 2012, para. 42; Canada, CRC/C/CAN/CO/3-4, 2012, para. 39; Monaco, CRC/C/MCO/CO/2-3, 2013, para. 23. See also J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 275.

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II. Right to Birth Registration Pursuant to Article 7 para. 1 CRC, the child is to be registered immediately after birth. The birth of a child establishes his or her individual existence and is the starting point of the recognition of the right to identity, which is rooted in human dignity. Registration immediately after birth is a measure to promote recognition of a child’s legal personality as the first step toward establishing, developing and preserving an individual’s identity.11 The recognition of a child’s existence through the birth registration system also serves as a protective measure by contributing toward the prevention of harm. 12 The child’s right to specific measure for his or her protection include the protection against negligence of parents and caregivers and from other harmful circumstances. 13 Through the obligation to register, the sale and trafficking of children, child abduction and other related practices of private actors inconsistent with the Convention rights shall be combated more effectively.14 Only through the registration of children, can certain minimum age limits be respected, for example, the minimum age limits of employees and for enrolment in armed forces.15 Thirdly, birth registration also plays a critical role in a State’s planning for the provision of services and to adopt targeted programmes for children.16 The registration obligation finally serves the social and child policies of the State which are based on population figures.17 This right is of particular importance in areas inhabited by refugees and illegal immigrants.18 With respect to illegal immigrants, however, registration is virtually impossible to achieve in many countries.19 5 The CRC Committee has not yet defined what is meant by the time frame “immediate” for the purposes of Article 7 para. 1 CRC. But it is clear that a period of days and weeks, rather than months and years is meant.20 At least, children are to be registered without any undue barriers and within a reasonable time frame.21 This obligation also applies to rural areas, which are difficult to access,22 as well as to States with large 4

11 CRC Committee, Concluding Observations: Yemen, CRC/C/YEM/CO/4, 2014, paras 37 et seq.; Morocco, CRC/C/MAR/CO/3-4, 2014, paras 30 et seq.; Fiji, CRC/C/FJI/CO/2-4, 2014, paras 24 et seq.; Paraguay, CRC/C/15/Add.166, 2001, para. 30. See also U Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 400. 12 See U Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 401. See also ACERWC, General Comment No. 2 on the Right to a Name, Registration at Birth, and to Acquire a Nationality, ACERWC/GC/02, 2014, para. 44. 13 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 9, 21; U Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 401. 14 See Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child), HRI/GEN/1/Rev. 9, Vol. I, 1989, para. 7. 15 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 118. 16 CRC Committee, Concluding Observations: Nicaragua, CRC/C/15/Add.36, 1995, para. 16; Ethiopia, CRC/C/15/Add.67, 1997, para. 29. 17 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 118. 18 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 28. 19 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 10. 20 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 8; R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 100. 21 CRC Committee, Concluding Observations: Morocco, CRC/C/MAR/CO/3-4, 2014, para. 31; Congo, CRC/C/COG/CO/2-4, 2014, para. 37. 22 CRC Committee, Concluding Observations: Thailand, CRC/C/THA/CO/3-4, 2012, para. 43; Panama, CRC/C/PAN/CO/3-4, 2011, paras 39 et seq.; India, CRC/C/IND/CO/3-4, 2014, para. 40; South Africa, CRC/C/15/Add.122, 2000, para. 20; Malawi, CRC/C/MWI/CO/3-5, 2017, paras 17 et seq.

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nomadic populations.23 If necessary, the State must use mobile units to reach those individuals who are unable to travel to the appropriate authorities.24 Children who are not immediately registered should be registered by specific reporting units such as schools.25 Critically, the CRC Committee has stressed that the imposition of fines or other penalties for late registration would not be compatible with the Convention, as this is likely to discourage parents from registering children.26 Although States Parties enjoy, according to Article 7 para. 2 CRC, a margin of 6 appreciation with respect to which system they adopt to register a child’s birth, any system used must comply with the so-called “3AQ model” (i.e. availability, accessibility, acceptability and appropriate quality).27 The phrase “shall ensure the implementation of the rights” in Article 7 para. 2 CRC imposes a duty on States Parties to take all appropriate measures to ensure the effective enjoyment of the rights under Article 7 para. 1 CRC. This means that birth registration must be available, accessible, acceptable and of appropriate quality in terms of the integrity and confidentiality of the information recorded.28 In particular, States Parties have to ensure that effective systems for birth registration exist;29 that these have adequate human, technical and financial resources at hand in order to ensure the implementation of the strategy to register all children; 30 that the existence of a birth registration system is widely known to the public;31 that the institutional structures are accessible in all regions of the State;32 and that the registry personnel is adequately trained for each local reality.33 The CRC Committee has further indicated that the absence of basic documentation detailing the child’s age and family affiliations may hamper the implementation of a child’s other rights.34 States Parties are not only obliged to provide the system with which children are 7 registered, they must also ensure that every child born within their jurisdiction is actually registered.35 This includes children with disabilities, whose births, in practice, go frequently unreported.36 States Parties should raise public awareness of this general and

23 CRC Committee, Concluding Observations: Algeria, CRC/C/15/Add.76, 1997, para. 36; Ethiopia, CRC/C/ETH/CO/4-5, 2015, paras 33 et seq.; Congo, CRC/C/COG/CO/2-4, 2014, para. 37; Chad, CRC/C/TCD/CO/2, 2009, para. 40; Djibouti, CRC/C/15/Add.131, 2000, para. 31. 24 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 424. See also CRC Committee, Concluding Observations: Congo, CRC/C/COG/CO/2-4, 2014, para. 37; Malawi, CRC/C/MWI/CO/ 3-5, 2017, para. 18; Vanuatu, CRC/C/VUT/CO/2-4, 2017, para. 23. 25 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 36. 26 CRC Committee, Concluding Observations: Fiji, CRC/C/FJI/CO/2-4, 2014, para. 24; China, CRC/C/CHN/CO/3-4, 2013, paras 39 et seq.; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 25. 27 J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 241, 244 et seq. 28 Ibid. 29 See, e.g., CRC Committee, Concluding Observations: India, CRC/C/IND/CO/3-4, 2014, para. 40; Sierra Leone, CRC/C/15/Add.116, 2000, para. 42; Canada, CRC/C/CAN/CO/3-4, 2012, paras 38 et seq.; Nicaragua, CRC/C/NIC/CO/4, 2010, para. 45; Nigeria, CRC/C/NGA/CO/3-4, 2010, paras 36 et seq. 30 CRC Committee, Concluding Observations: Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 37. 31 CRC Committee, Concluding Observations: India, CRC/C/IND/CO/3-4, 2014, para. 40; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 31; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 26. 32 CRC Committee, Concluding Observations: Guinea-Bissau, CRC/C/GNB/CO/2-4, 2013, para. 33. 33 CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 26; Myanmar, CRC/C/MMR/CO/3-4, 2012, para. 44. 34 CRC Committee, Concluding Observations: Honduras, CRC/C/15/Add.24, 1994, para. 12. 35 CRC Committee, General Guidelines for Periodic Reports CRC/C/58, 1996, p. 13, para. 49; I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 9. In a similar vein, see also Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child), HRI/GEN/1/Rev. 9, Vol. I, 1989, para. 7. 36 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 35.

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complete registration obligation and educate registration personnel appropriately.37 The registration must be free and universally accessible.38 States Parties remain free to design the registration process provided it is accessible, acceptable and non-discriminatory. 39 In particular, there must be no discrimination with respect to the nature of the information that is registered for each child.40 8 In the CRC Committee’s point of view, the non-discrimination principle also applies to the registration of newborns of illegal immigrants and refugees. As national registry offices are often obliged, under domestic law, to check the legality and place of residence of the parents when registering their child and to inform the immigration authorities about irregularities, in practice, illegal immigrants typically refrain from registering their children. The CRC Committee sees this practice as a mediated discrimination of the child41 and calls on the governments to take countermeasures and to abolish the information duty of the registry offices to the immigration authorities.42 Any fact which makes the child’s registration dependent on the status of parents is contrary to Article 7 CRC, read in conjunction with Article 2 CRC.43

III. Right to a Name 9

Pursuant to Article 7 para. 1 CRC, the child has a right from birth to a name. The child’s right to a name is a fundamental right to protection of identity and individual development of personality and a sense of self, since a name represents the first point of reference for the child and for the society to identify the child and his or her family. 44 A name fulfils both symbolic and functional roles by linking a child to the parents and his or her extended family, granting the child membership into a family group and cultural background and, ultimately, integration of the child into a society.45 Thereby, it is not necessary that the name consists of a surname and a first name since in many cultures naming practices are far more complex than in Western countries. 46 The CRC Committee also considers that the assignment of two surnames to children, in keeping with domestic law, does not constitute a barrier to the ability of children to have full knowledge of their biological origins or does not fail to respect their right to preserve their identity.47 It is problematic, however, when the consequence of naming a CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 13, para. 50. CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 41. 39 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 8. 40 CRC Committee, Concluding Observations: Russian Federation, CRC/C/RUS/CO/4-5, 2014, para. 29. Further see J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 247-248. 41 On the issue of “mediated discrimination” see → Article 2 mns. 8, 11, 20. 42 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 28 et seq. See also CRC Committee, Concluding Observations: Cyprus, CRC/15/Add.59, 1996, para. 17; Venezuela, CRC/C/15/Add.109, 1999, para. 21; Cambodia, CRC/C/KHM/CO/2-3, 2011, paras 37 et seq.; Russian Federation, CRC/C/RUS/CO/4-5, 2014, paras 28 et seq. 43 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 29; Russian Federation, CRC/C/RUS/CO/4-5, 2014, para. 29; Malta, CRC/C/MLT/CO/2, 2013, para. 35; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 37; Japan, CRC/C/JPN/CO/3, 2010, paras 45 et seq. 44 O Cvejić Jančić, in: eadem (ed.), The Rights of the Child in a Changing World, 2016, p. 1, at 30 et seq. 45 U Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 401. 46 See J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 249, with further references. 47 CRC Committee, J.A.B.S. v. Costa Rica, Decision adopted on 17 January 2017, CRC/C/74/D/5/2016, para. 4.2. 37

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child leads to potential discrimination. For instance, the CRC Committee has expressed concern that the procedure for the determination of the name of children born out of wedlock in Uruguay paves the way for their stigmatisation.48 The right to a name is, of course, closely associated with the obligation to register 10 because the registration requires that a name is given.49 As is natural, the right to name the child is exercised by the parents; the child has, in principle, no right to choose its own name.50 Whether the child has a right to change his or her name later, possibly as an adolescent or as an adult person, is not addressed by Article 7 CRC but can be resolved in light of the right to be heard under Article 12 CRC.51 It is within this context that the CRC Committee took a critical stance with regard to a domestic law that allowed parents to change the name of the child without the child’s consent until the child turned 21 years of age.52 In principle, the parents have large discretion in the choice of the name of the child, in conformity with their cultural traditions. The State may restrict the right to choose a name where the choice can endanger the welfare of the child.53 It must, however, take ethnic and cultural characteristics into consideration.54 Especially in regards to indigenous families, the cultural tradition of the ethnic group must be given due weight.55

IV. Right to Acquire a Nationality While Article 15 UDHR and Article 20 ACHR speak of the universal right of every- 11 one to a nationality, the formulation of the right to a nationality in Article 7 para. 1 CRC is more restrictive. By merely protecting the right to acquire a nationality, it establishes a weaker form of the right.56 This compromised formula is modelled on the wording of Article 24 para. 3 ICCPR in order to prevent, as far as possible, the statelessness of children.57 Article 7 para. 1 CRC reflects the contested nature of the right and the desire of the States to maintain their prerogative to determine and to confer nationality. 58 Indeed, Article 15 UDHR does not reflect customary international law,59 although it CRC Committee, Concluding Observations: Uruguay, CRC/C/15/Add.62, 1996, para. 11. I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 11. 50 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 117. 51 S Schmahl, The Rights of the Child in Germany, in: M Schmidt-Kessel (ed.), German National Reports on the 19th International Congress of Comparative Law, 2014, p. 581, at 596. 52 See CRC Committee, Concluding Observations: Niue, CRC/C/NIU/CO/1, 2013, paras 30 et seq. See also J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 251. 53 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 11. See also ACERWC, General Comment No. 2 on the Right to a Name, Registration at Birth, and to Acquire a Nationality, ACERWC/GC/02, 2014, para. 40. 54 CRC Committee, Concluding Observations: Iceland, CRC/C/15/Add.50, 1996, para. 11; Algeria, CRC/C/DZA/CO/3-4, 2012, para. 39. See also CERD Committee, Concluding Observations: Japan, CERD/C/304/Add.114, 2001, para. 18. 55 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 44. See also → Article 30 mns. 1 et seq. 56 S Detrick, A Commentary to the United Nations Convention on the Rights of the Child, 1999, p. 143 et seq.; I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 12. 57 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mns. 54 et seq. 58 See Commission on Human Rights, E/CN.4/L.1542, paras 37 et seq. See also J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, 253. 59 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 12. 48

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can be held that a new customary rule is emerging in view of increasingly favourable international case-law in this respect.60 In principle, however, the States Parties still remain free to confer nationality.61 The International Court of Justice merely clarified in the Nottebohm case that the grant of nationality must not be arbitrary, but must depend upon a genuine link.62 It has not made any further international legal requirement for the acquisition of nationality but respected the nationality laws of a State. As methods of granting nationality, the principles of jus sanguinis and of jus soli as well as mixed forms thereof are recognised.63 According to the jus sanguinis principle, the child acquires the citizenship of the parents or a parent irrespective of the place of birth. On the basis of the jus soli principle, the child acquires the nationality of the country of birth, regardless of the nationality of the parents. A combined form can be found, for instance, in the German Nationality Act of 1999. 12 During the drafting process of the CRC, representatives of some States tried to force those (other) States that determined nationality on the basis of the principle of jus sanguinis to adopt the principle of jus soli if a child would otherwise be stateless. Yet, a number of delegates warned that this would lead to reservations being made to Article 7 CRC by a large number of States.64 The result was the inclusion of para. 2 in Article 7 CRC, which was prepared in order to reconcile the competing tensions.65 This paragraph seeks to respect the power of the State to determine the scope of its nationality laws while at the same time addressing the problem of statelessness by demanding that States Parties act in conformity with the obligations they have assumed under other international instruments.66 In particular, the 1961 Convention on the Reduction of Statelessness67 provides for States to accord citizenship on the basis of jus soli where otherwise a child would be stateless. The CRC Committee has repeatedly affirmed the relevance of the 1961 Convention for the purposes of Article 7 para. 1 CRC. 68 This demand has a clear application to children born in the host country to irregular migrant parents.69 However, the drafting history of Article 7 CRC suggests that States never intended to impose such an obligation and the 1961 Convention has merely limited effects since it has a relatively low number of ratifications.70 60 See J Chan, The Right to Nationality as a Human Right: The Current Trend towards Recognition, Human Rights Journal 12 (1991), p. 1, at 3; A Peters, Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty, and Fair Principles of Jurisdiction, German Yearbook of International Law 53 (2010), p. 623, at 660 et seq. See also (German) Federal Administrative Court, Judgment of 26 February 2009, 10 C.50.07, para. 18; Court of Appeal of England and Wales, Decision of 31 July 2007, EB v. Secretary of State for the Home Department, 2007 EWCA CIV 809. 61 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 12. 62 ICJ, Judgment of 6 April 1955, ICJ Reports 1955, p. 4, at 23 – Liechtenstein v. Guatemala. 63 G‑R de Groot/O Vonk, Acquisition of Nationality by Birth on a Particular Territory or Establishment of Parentage: Global Trends Regarding Ius Sanguinis and Ius Soli, Netherlands International Law Review 65 (2018), p. 319, at 321 et seq. 64 Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, para. 17. 65 Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 103. See also J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 253 et seq. 66 See S Detrick, A Commentary to the United Nations Convention on the Rights of the Child, 1999, p. 151. 67 989 UNTS 175. The Convention entered into force on 13 December 1975. 68 CRC Committee, Concluding Observations: Indonesia, CRC/C/IDN/CO/3-4, 2014, para. 28; Croatia, CRC/C/HRV/CO/3-4, 2014, para. 27; Fiji, CRC/C/FJI/CO/2-4, 2014, para. 27; Morocco, CRC/C/MAR/CO/3-4, 2014, para. 31. 69 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 427. 70 The Convention has only 75 Contracting Parties (as of May 2020).

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Regardless of the drafting history and the clear wording of Article 7 para. 1 CRC, the 13 CRC Committee has, however, maintained a strong commitment to eliminate statelessness of children. To this end, it has adopted a robust approach regarding the obligation of States Parties to ensure the right to a nationality for all children. While acknowledging that States under general international law are not obliged to grant their nationality to every child born in their territory, the CRC Committee nevertheless urges the Contracting States to adopt every appropriate measure both internally and in cooperation with other States Parties to ensure that every child has a nationality when he or she is born. 71 A key measure is the conferral of nationality to a child born on the territory of the State at birth or as early as possible after birth, if the child would otherwise be stateless. 72 Furthermore, the CRC Committee urges States Parties to take immediate steps to reform nationality laws that discriminate against women by granting equal rights to men and women to confer nationality on their children.73 In regards to the protection against discrimination when acquiring nationality within 14 the meaning of Article 7 para. 1 CRC, there exist two major practical issues which are of particular relevance in light of Article 2 para. 1 CRC. On the one hand, the CRC Committee recommends that States Parties be aware of the fact that the conditions under which nationality is acquired can be discriminatory. Thus, in some countries, women and girls are placed in nationality laws at a disadvantage compared to men and boys. The CRC Committee urges States Parties to grant women equal rights with men with respect to the nationality of their children.74 The same applies to certain ethnic groups. The African Committee of Experts on the Rights and Welfare of the Child, for instance, ruled in 2009 that the Kenyan Government shall take all relevant measures to ensure that children of Nubian descent acquire Kenyan nationality at birth and that the birth registration in Kenya shall be modified by implementing a birth registration system in a manner that is non-discriminatory.75 On the other hand, a person who is denied nationality is at risk of being discriminat- 15 ed against on grounds of his or her statelessness.76 Such differentiations on grounds of statelessness contradict international obligations, and especially the prohibitions on discrimination. They are no longer acceptable.77 In particular, any disadvantage of stateless children must be avoided in all cases.78 For instance, the 1954 Convention relating to 71 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 24. 72 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 20 et seq. 73 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 26. See also CRC Committee, Concluding Observations: Syrian Arab Republic, CRC/C/SYR/CO/5, 2019, para. 23 c; Côte d’Ivoire, CRC/C/CIV/CO/2, 2019, para. 26. 74 CRC Committee, Concluding Observations: Norway, CRC/C/15/Add.126, 2000, paras 20 et seq. See also CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 25; Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, paras 21-26. 75 ACERWC, Institute for Human Rights and Development in Africa and Open Society Justice Initiative on Behalf of Children of Nubian Descent in Kenya v. Kenya, Decision adopted on 22 March 2011, Com/002/2009. 76 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, p. 16 et seq. 77 See CERD Committee, General Recommendation No. XXX on discrimination against non-citizens, 2005, paras 16, 27. 78 See Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child), HRI/GEN/1/Rev. 9, Vol. I, 1989, paras 7-8.

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the Status of Stateless Persons79 accords stateless people various socio-economic rights, but these are predicated on such people being lawfully in the territory. Thus, it falls short of imposing an obligation on States to give residency to persons who are stateless. Accordingly, whether or not to do so remains a matter for each State. It should be noted, however, that stateless persons are entitled to apply for international protection according to the 1951 Geneva Refugee Convention.80 This underscores the importance of appropriate challenging into and between immigration procedures, in particular regarding children.81 This does not mean, though, that children who are nationals of another State have an unconditional right to acquire the nationality of the State where they are resident.82 Contrary to the opinion expressed by the CRC Committee,83 nothing flowing from the wording and the object and purpose of both Articles 7 and 2 CRC contradicts this stance. In the same vein, Article 7 para. 1 CRC and Article 3 CRC do not require the early naturalisation of a minor by accepting permanent multiple nationalities if the waiting period until reaching the age of majority does not endanger the best interests of the child.84

V. Right to Knowledge of Origin and to Be Cared for by Parents Article 7 para. 1 CRC secures “as far as possible” the child’s right to know his or her parents and be cared for by them. Therefore, when possible, the unmarried/non-marital father of the child must also be recorded in the birth certificate.85 On the other hand, according to Article 8 para. 1 CRC, the recognition of the parentage of a child does not depend on the submission of proof of biological descent.86 The meaning of “parent” for the purposes of Article 7 CRC must not be confined to a biological or to a dualist and heteronormative conception of parents, but should extend to all persons who play a gestational, biological and/or social role in the creation and care of a child.87 This opens up the possibility that a child may have more than two parents or caregivers and that such a person does not need to be in a heterosexual relationship.88 Article 7 para. 1 CRC actually provides children with a right to know the identity of those persons who have a gestational, biological or social link with their creation and care.89 17 The reserved formulation of Article 7 para. 1 CRC (“as far as possible”) is the result of objections lodged by the (former) German Democratic Republic, the USSR and the 16

360 UNTS 117. Entered into force on 6 June 1960. UNHCR, Guidelines on Statelessness No. 1: The Definition of Stateless Person in Article 1 (1) of the 1954 Convention relating to the Status of Stateless Persons, HCR/GS/12/01, 2012, para. 7. 81 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 427. 82 Rightly so: Higher Administrative Court Bremen, Judgment of 7 January 2013, 1 P 295/12. 83 See → Article 7 mn. 13. 84 See (German) Federal Administrative Court, Judgment of 21 February 2013, 5 C 9.12, para. 23. 85 CRC Committee, Concluding Observations: Ireland, CRC/C/15/Add.85, 1998, para. 36. 86 I Ziemele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 7, 2007, Article 7, p. 26 et seq. 87 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 27. 88 See J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 241, 259. 89 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 7-13. 79

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United States of America during the drafting of the Convention.90 In the case of adoption, the laws of those States did not or do not require the submission of information regarding the biological parents.91 A similar legal approach is also present in many other countries; sometimes the right to inspect the documents is conditioned upon a minimum age requirement of the adopted child.92 The issue of confidentiality about adoption is problematic and complex, because it concerns the rights of, at least, three parties (the biological and/or gestational parents, the adoptive parents and the child). In some cases, confidentiality may be justified by the child’s well-being. Yet, although Article 7 para. 1 CRC remains silent upon whether children have a right of access to adoption documents, the CRC Committee has opposed the principle of refusal of access to the adoption files. According to the CRC Committee, adopted children have a right, in due time, to know their true origin.93 For the development of children, it is probably beneficial that they learn as early as possible about their true origin. The trauma attached to such realisation can heal during childhood, whereas the acknowledgment in adulthood often leads to significant detachment from the adoptive parents and might cause severe psychological problems.94 Given the restrictive wording of Article 7 para. 1 CRC, there may be circumstances 18 which justify a restriction of the child’s right to know his or her biological parents. In this context, the opinion of the CRC Committee which often sets the right to identity in an absolute manner95 goes too far and might be considered as a statement ultra vires. It is true that the Convention shows little tolerance for the non-disclosure and concealment of the identity of a child’s parents. It rather creates a presumption that where it is possible to know the identity of a child’s parent, a child has a right to know that information. But this presumption does have caveats which are or the best interests of the child or their parents’ right to privacy.96 It is widely recognised that the knowledge of one's own descent is an important part of the right to identity. However, another question is to what extent and in which context the child has a claim to knowledge of his or her own descent. Here, balanced and differentiated solutions must be given. For instance, the ECtHR derives the right to knowledge of one's own descent from the right to privacy in Article 8 ECHR.97 Any child has a vital interest, protected by the Convention, in receiving the information necessary to know and to understand his or her childhood and early development.98 But the Court has, however, held that the refusal by State authorities to provide information concerning biological descent does not

90 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 107, 112-114; see also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 153. 91 Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 92. 92 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 123 et seq. 93 See CRC Committee, Concluding Observations: Ukraine, CRC/C/15/Add.191, 2002, para. 49; Kyrgyzstan, CRC/C/15/Add.244, 2004, para. 41; China, CRC/C/CHN/CO/2, 2005, para. 53; Czech Republic, CRC/C/15/Add.201, 2003, paras 8 et seq.; CRC/C/CZE/CO/3-4, 2011, paras 37 et seq.; Kazakhstan, CRC/C/15/Add.213, 2003, paras 45 et seq. 94 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 120 et seq. 95 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 30 et seq. 96 For a fuller account see J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 262 et seq. 97 ECtHR, Judgment of 7 July 1989, No. 10454/83, para. 49 – Gaskin v. The United Kingdom; Judgment of 16 June 2011, No. 19535/08, para. 59 – Pascaud v. France. 98 ECtHR, Judgment of 14 June 2016, No. 30955/12, para. 38 – Mandet v. France; Judgment of 26 June 2014, No. 65192/11, paras 46, 99 – Mennesson and Others v. France.

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necessarily and under any circumstance constitute a violation of the Convention.99 Only the complete absence of the possibility of obtaining at least anonymised information about one’s own biological roots, constitutes, according to the ECtHR, a violation of Article 8 ECHR.100 Against this background, and in view of the inclusion of the phrase “as far as possible”, the child’s enjoyment of the right enshrined in Article 7 para. 1 CRC is qualified by both practical considerations with respect to what is possible and the need to balance the child’s rights and best interests against those of his or her parents.101 The CRC Committee recognises that there is a possible conflict between biological parents’ right to privacy,102 but has, however, repeatedly asked States Parties to facilitate the possibility of disclosure.103 In its recommendations for the Holy See, the CRC Committee asks that all necessary measures be taken to ensure that children of priests who had fathered them know their fathers. The CRC Committee demands that churches no longer impose confidentiality agreements as a condition to providing the unmarried mothers with financial plans to support their children.104 19 The CRC Committee also criticises anonymous births and the practice of the socalled “baby boxes” as a violation of the child-like right to knowledge his or her origin and the right to identity105 and demands that the child should be able to become aware of his or her biological origin as an adolescent.106 It even recommends that States Parties consider removing the requirement of the biological mother’s consent to reveal her identity.107 This view, however, is inaccurate on the basis of general human rights law. A balanced decision in such a case depends on the context in which the information is sought. There are particularly valid reasons for allowing anonymous adoption as a means by which women, in particular unmarried women and girls, are encouraged to continue with an unwanted pregnancy and provide the child to the relevant authorities upon birth for adoption.108 The ECtHR therefore accepts that in certain circumstances a woman’s demand for anonymity will be reasonable and proportionate, notwithstanding that it would interfere with the right to respect for private life of an adopted child. 109 99 ECtHR, Judgment of 13 February 2003, No. 42326/98, paras 40 et seq. – Odièvre v. France; see also ECtHR, Judgment of 13 July 2006, No. 58757/00, para. 38 – Jäggi v. Switzerland; Judgment of 16 June 2011, No. 19535/08, para. 68 – Pascaud v. France; Judgment of 22 March 2012, No. 23338/09, para. 78 – Kautzor v. Germany. See also R Uerpmann-Wittzack, Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zum Familienrecht seit 2014, Zeitschrift für das gesamte Familienrecht 2016, p. 1897, at 1900. 100 ECtHR, Judgment of 25 September 2012, No. 33783/09, paras 57 et seq. – Godelli v. Italy. 101 J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 261, 263 et seq. 102 CRC Committee, Concluding Observations: Norway, CRC/C/15/Add.23, 1994, para. 10; Seychelles, CRC/C/SYC/CO/2-4, 2012, paras 40 et seq. 103 CRC Committee, Concluding Observations: Morocco, CRC/C/MAR/CO/3-4, 2014, para. 33; Holy See, CRC/C/VAT/CO/2, 2014, para. 34. 104 CRC Committee, Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, para. 34. 105 CRC Committee, Concluding Observations: France, CRC/C/15/Add.20, 1994, para. 14; CRC/C/FRA/CO/5, 2016, para. 22; Germany, CRC/C/DEU/CO/3-4, 2014, paras 30 et seq.; Holy See, CRC/C/VAT/CO/2, 2014, para. 35 et seq.; Austria, CRC/C/AUT/CO/3-4, 2012, paras 29 et seq.; Lithuania, CRC/C/LTU/CO/3-4, 2013, paras 22 et seq. 106 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 31. 107 CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, paras 29 et seq.; Germany, CRC/C/DEU/CO/3-4, 2014, para. 31. 108 Correctly so, J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 264; S Besson, Enforcing the Child’s Right to Know Her Origins: Contrasting Approaches under the Convention on the Rights of the Child and the European Convention on Human Rights, International Journal of Law, Policy, and the Family 21 (2007), p. 137 et seq. 109 ECtHR, Judgment of 13 February 2003, No. 42326/98, paras 44 et seq. – Odièvre v. France. See also ECtHR, Judgment of 25 September 2012, No. 33783/09, paras 57 et seq. – Godelli v. Italy.

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In contrast, the CRC Committee’s view is unacceptable insofar as it does not even attempt to balance the right of the child to know his or her mother against the right to privacy of the mother. The CRC Committee has, however, justifiably urged States Parties to increase their efforts to address the root causes that lead parents to choose to use confidential birth.110 Similar considerations must also apply to the cases of conception by anonymous 20 sperm donation, even if the initial circumstances are significantly different. 111 In such cases, in contrast to adoption, a child is not provided with a new family, but rather the (prospective) parents with a new child. Without sperm donation, the child would not have been born. In addition, in cases of artificial insemination, as opposed to adoption (with the exception of stepchild adoption), usually at least one parent is the biological parent. However, despite these differences, the interests of the child remain comparable. Again, the child has a legitimate interest in discovering his or her biological origin at the latest upon obtaining legal age.112 The policy of States Parties to keep the identity of sperm donors secret is, therefore, rightly viewed by the CRC Committee as being in contradiction to Article 7 CRC. 113 Different to anonymous adoptions, there will never be a real conflict with a potential donor’s right to privacy as he can simply refuse to make a sperm donation if he wishes to stay anonymous.114 Particular difficulties arise, however, with respect to ovus donation and surrogate 21 motherhood, i.e. when a woman who gives birth to a child (gestational mother) is not the genetic mother. Both, ovus donation and surrogacy are prohibited in various countries in order to prevent "split motherhood" and to put a stop to the economic exploitation of women through ovus planting or surrogate motherhood agreements.115 The law of these countries also strictly stipulates that only the woman who gives birth to a child is the child’s mother, even if she is a gestational surrogate, or, in different words, genetically unrelated to the child she gave birth to. However, the laws may permit the re-assignment of legal parenthood to the intending parents at a later stage through a post-birth legal process, mostly adoption.116 On the other hand, since surrogate motherhood has become legalised in many countries, couples who wish to have children increasingly go abroad to conclude a transnational surrogacy agreement.117 In general, in these countries the law permits, under certain circumstances, that an “intending mother” who has not given birth to the child can be registered as the child’s legal mother in a birth certificate, as is the case, for instance, in Russia and Ukraine.118 110 CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, paras 29 et seq.; Germany, CRC/C/DEU/CO/3-4, 2014, para. 31; Holy See, CRC/C/VAT/CO/2, 2014, para. 36; Luxembourg, CRC/C/LUX/CO/3-4, 2013, paras 28 et seq. 111 On the issue see also ECtHR, Judgment of 3 November 2011, No. 57813/00, paras 108 et seq. – S.H. and others v. Austria. 112 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 126. 113 CRC Committee, Concluding Observations: Norway, CRC/C/15/Add.23, 1994, para. 10; Denmark, CRC/C/15/Add.33, 1995, para. 11. 114 For a fuller account on this issue see J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 266 et seq. 115 See, for instance, the French law as referred to in ECtHR, Advisory Opinion of 10 April 2019, No. P16-2018-001, paras 9, 27 et seq. – Cour de Cassation (Gestational Surrogacy Arrangement), and the Italian law as referred to in ECtHR, Judgment of 24 January 2017, No. 25358/12, para. 203 et seq. – Paradiso and Campanelli v. Italy. 116 See, in detail, the articles in: K Trimmings/P Beaumont (eds.), International surrogacy arrangements. Legal regulation at the international level, 2013. 117 See K Boele-Woelki, (Cross-border) Surrogate Motherhood, We Need to Take Action Now!, in: Essays in honour of Hans van Loon, 2013, p. 47, at 51 et seq. 118 K Trimmings/P Beaumont (eds.), International surrogacy arrangements. Legal regulation at the international level, 2013, p. 311 et seq., p. 357 et seq. As regards Russian law on gestational surrogacy see

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Yet, after the birth of the child in cross-border-surrogacy situations, the focus is then on who may be the legal parent of the child. In countries where the law strictly prohibits surrogate motherhood arrangements at all, the intending parents frequently travel abroad to more surrogacy-friendly jurisdictions, which leads to problems with the child’s parentage. In addition, a child born as a result of such cross-border arrangements may face difficulties related to the uncertainty of his or her legal status, including nationality.119 According to those legal systems, which consider surrogacy to be permissible, often the intended or ordering parents and not the surrogate mother are qualified as parents.120 The ensuing non-recognition of the foreign decision in countries which prohibit surrogate motherhood is deemed to violate the child's best interests since the child remains – at least for a certain period of time – without any mother.121 23 The dignity of children and their general right to privacy and identity dictates that they should not be deprived of their rights merely because they were conceived and/or born by means of a medical reproduction method which is not permitted in some countries. A child has no influence on the circumstances of his or her creation and cannot be held responsible for it.122 The ECtHR therefore recognises in such cases that the absolute non-recognition of foreign birth certificates constitutes a violation of the child's right to respect for his private and family life pursuant to Article 8 ECHR. 123 This also applies if the child is "only" deprived of one parent.124 In addition, since the non-recognition of the foreign decision on parenthood often leads to the fact that the child cannot acquire nationality and becomes stateless, the ECtHR decided that such a refusal puts the child in a position of legal uncertainty, restricts his or her ability to establish his or her identity in law, and constitutes a violation of Article 8 ECHR.125 In such a case, there would also be a violation of Article 7 para. 1 CRC and the right to privacy, which not only relates to the right to know one's own descent, but also extends to other basic conditions for the development of personality, which include the acquisition of nationality.126 24 Furthermore, in cases of transnational surrogacy and assisted reproduction, the right to knowledge of one's own descent may extend not only to the identity of the genetic mother, but also to the identity of the birth-giving mother. When looking for the building of one’s individual identity, which is guaranteed by Article 7 para. 1 CRC, it is a complex process. It may be important for the individual and the personality 22

also ECtHR, Judgment of 24 January 2017, No. 25358/12, para. 131 – Paradiso and Campanelli v. Italy. As regards Ukrainian law on gestational surrogacy see ECtHR, Judgment of 16 July 2020, No. 11288/18 – D. v. France. 119 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 165. 120 Partly by law, partly by court decision, see N Dethloff, Leihmütter, Wunscheltern und ihre Kinder, JuristenZeitung 2014, p. 922, at 925 et seq. 121 B Heiderhoff, Rechtliche Abstammung im Ausland geborener Leihmutterkinder, Neue Juristische Wochenschrift 2014, p. 2673, at 2674 et seq. 122 See K Duden, Leihmutterschaft im Internationalen Privat- und Verfahrensrecht, 2015, p. 282. 123 ECtHR, Judgment of 26 June 2014, No. 65192/11, paras 96 et seq. – Mennesson v. France; Judgment of 26 June 2014, No. 65941/11, paras 60 et seq. – Labassée v. France; Judgment of 21 July 2016, Nos. 9063/14 and 10410/14, paras 35 et seq. – Foulon and Bouvet v. France. See also ECtHR, Advisory Opinion of 10 April 2019, No. P16-2018-001, paras 38, 46 et seq. – Cour de Cassation (Gestational Surrogacy Arrangement). 124 J Gernhuber/D Coester-Waltjen, Familienrecht, 6 th edn. 2010, § 48 mn. 9. 125 ECtHR, Judgment of 26 June 2014, No. 65192/11, paras 100 et seq. – Mennesson v. France; Judgment of 26 June 2014, No. 65941/11, paras 75 et seq. – Labassée v. France. See also ECtHR, Advisory Opinion of 10 April 2019, No. P16-2018-001, paras 35 et seq. – Cour de Cassation (Gestational Surrogacy Arrangement). 126 N Dethloff, Leihmütter, Wunscheltern und ihre Kinder, JuristenZeitung 2014, p. 922, at 928.

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development of the child to gain knowledge of the circumstances under which he or she was born and from or with the support of whom.127 The CRC Committee recommends that the States Parties intensify their efforts to ensure, as far as possible, respect for the right of a child born as a result of medically assisted procreation to know his or her origin.128 The same applies to children born through surrogacy motherhood. Also here, the CRC Committee demands that the child has to be given the opportunity to get access to the information about his or her origin.129 Against this background, the following solution is at hand: Insofar as the birth-giving surrogate mother is named in a foreign judgment or a foreign birth certificate, a corresponding reference to the woman giving birth can be included in the register of civil status.130 From a fundamental rights perspective, Article 7 CRC protects against the withholding of obtainable information on the child’s identity. However, due to the lack of consensus within the Member States, the ECtHR chooses a different, more cautious approach. Although it finds that the child’s right to privacy within Article 8 ECHR requires that the European country’s domestic law provides the possibility of recognition of the intended mother as the legal mother, recognition in the legal documents is not required. Other legal means such as legal adoption by the intended mother may be used, since they produce similar effects to registration of the foreign birth details.131 What is important, however, is that, at the latest when the relationship between the child and the intended mother has become a practical reality, an effective mechanism should exist enabling that relationship to be recognised. Adoption may satisfy this requirement provided that the conditions which govern it are appropriate and the procedure enables a decision to be taken rapidly and effectively so that the child is not kept for a lengthy period in a position of legal uncertainty as regards the relationship.132 In regards to the right of children to receive care from and be brought up by their 25 parents, it is easy to understand that for factual reasons this right cannot be realised under all circumstances, for example, because one or both parents are deceased or unwilling or unable to care for a child. The right of parents to bring up their children can also be restricted on legal grounds.133 A child may need to be removed from his or her family environment when to remain would pose a risk to the child’s well-being (see Article 9 para. 1, Article 20 para. 1 CRC). The arbitrary and forcible removal of a child and the replacement of his or her identity, however, constitute a form of forced disappearance, which is contrary to Article 7, Article 8, Article 9 and Article 18 CRC. 134

127 Chamber Court Berlin, Judgment of 1 August 2013, 1 W 413/12, para. 36; N Dethloff, Leihmütter, Wunscheltern und ihre Kinder, JuristenZeitung 2014, p. 922, at 928. 128 CRC Committee, Concluding Observations: Switzerland, CRC/C/CHE/CO/2-4, 2015, paras 32-33. 129 CRC Committee, Concluding Observations: Georgia, CRC/C/GEO/CO/4, 2017, para. 19. 130 See also N Dethloff, Leihmütter, Wunscheltern und ihre Kinder, JuristenZeitung 2014, p. 922, at 928. 131 ECtHR, Advisory Opinion of 10 April 2019, No. P16-2018-001, paras 50 et seq. – Cour de Cassation (Gestational Surrogacy Arrangement). See also ECtHR, Judgment of 19 November 2019, Nos. 1462/18 and 17348/18, para. 39 – C. and E. v. France. 132 ECtHR, Advisory Opinion of 10 April 2019, No. P16-2018-001, paras 54-55 – Cour de Cassation (Gestational Surrogacy Arrangement); Judgment of 19 November 2019, Nos. 1462/18 and 17348/18, paras 39 et seq. – C. and E. v. France. 133 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 24 et seq. 134 See IACtHR, Judgment of 23 February 2011, Series C No. 221, paras 121 et seq. See also → Article 9 mn. 16.

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VI. Embedding of Article 7 CRC into the System of International Human Rights Protection The obligation to immediately register children as well as the right of the child to acquire a nationality pursuant to Article 7 para. 1 CRC are also found in Article 24 para. 2 and para. 3 ICCPR. The Human Rights Committee has often commented on insufficient safeguards to ensure that children who would otherwise be stateless are able to acquire a nationality and have access to identity documents.135 The Human Rights Committee has also ruled that the forgery of a birth certificate and the adoption of an abducted child is a violation of the child’s rights under Article 17 ICCPR (right to privacy), Article 23 para. 1 ICCPR (right of the family to protection) and Article 24 para. 1 and para. 2 ICCPR (right of the child to protection).136 The fact that a grandmother, in a disappearance case, was precluded from exercising the rights of her grandchild in court due to lack of a power of attorney, was also considered a violation of Article 24 ICCPR.137 The ECHR does not explicitly state the obligation to register children. However, the ECtHR has found that a difference in treatment between marital and non-marital children by registration is a violation of Articles 8 and 14 ECHR.138 27 Article 8 ECHR guarantees the right to identity and development of the person and the right to form and develop relationships with other people and the outside world.139 The preservation of mental and emotional stability is a prerequisite for the effective exercise of the right to respect for private life. 140 Knowledge of the details of personal identity is an element of personal development.141 The birth and especially the circumstances, under which a child is born, are part of the private life of a child and later the adult, which are protected by Article 8 ECHR.142 The right to private life comprises acknowledgment that individuals have a vital interest in establishing the biological truth about their origins, early developments and identities.143 The failure to obtain such information may imply mental and psychological suffering.144 28 Article 8 ECHR also recognises the right to respect of one’s decision to maternity and paternity.145 Therefore, in a case concerning a State-approved anonymous birth (“accouchement sous X”), the ECtHR has ruled that the refusal of the public authorities to provide the child information about his or her biological mother is in conformity with the requirements of Article 8 ECHR, since the mother could also invoke Article 8 ECHR to protect her right to continued secrecy. In addition, there is a public interest 26

135 Human Rights Committee, Concluding Observations: Cambodia, CCPR/C/KHM/CO/2, 2015, para. 27; Croatia, CCPR/C/HRV/CO/3, 2015, para. 8; Kuwait, CCPR/C/KWT/CO/2, 2011, para. 12. Further see M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mn. 59. 136 Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child), HRI/GEN/1/ Rev. 9, Vol. I, 1989, p. 22-24. 137 Human Rights Committee, Mónaco de Gallicchio v. Argentina, Views adopted on 27 April 1995, No. 400/1990, paras 10.3 et seq. 138 ECtHR, Judgment of 13 June 1979, No. 6833/74, para. 31 – Marckx v. Belgium; Judgment of 28 May 2009, No. 3545/04, para. 43 – Brauer v. Germany. 139 For a fuller account see WA Schabas, The European Convention on Human Rights. A Commentary, 2015, Article 8, p. 358, at 375 et seq. 140 ECtHR, Judgment of 15 March 2012, Nos. 4149/04 and 41029/04, para. 58 – Aksu v. Turkey; Judgment of 6 February 2001, No. 44599/98, para. 46 – Bensaid v. The United Kingdom. 141 ECtHR, Judgment of 7 February 2002, No. 53176/99, paras 54, 64 – Mikulic v. Croatia. 142 ECtHR, Judgment of 13 February 2003, No. 42326/98, para. 29 – Odièvre v. France; Judgment of 14 February 2012, No. 2151/10, para. 51 – A.M.M. v. Romania. 143 ECtHR, Judgment of 21 June 2011, No. 46185/08, para. 34 – Kruskovic v. Croatia. 144 ECtHR, Judgment of 25 September 2012, No. 33783/09, para. 56 – Godelli v. Italy. 145 ECtHR, Judgment of 10 April 2007, No. 6339/05, para. 71 – Evans v. The United Kingdom.

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in ensuring that the health of mother and child is protected during pregnancy and childbirth and that abortion, in particular clandestine abortions, and a “wild” abandonment of children are as far as possible avoided.146 In contrast, an obligation of States to legally allow artificial reproduction with third-person gametes cannot be deduced from Article 8 ECHR.147 However, the ECtHR considers the legal parent-child relationship to be part of the 29 identity of a child whose recognition may not be denied by national law even in cross-border surrogacy cases.148 In that regard, the Court even expressly makes reference to the best interests of the child under Article 3 CRC.149 Yet, while the Court also derives a right to knowledge of one's own descent from Article 8 of the ECHR,150 the absence in national law of the possibility of an isolated pedigree has not yet been complained.151 The ECtHR has rather emphasised that Article 8 ECHR does not impose any obligation on the State to institute a corresponding declaratory action.152 This applies even more, if a supposedly biological father wants to contest the legitimacy of the child in the case of marriage and given paternity acknowledgment of the spouse. In such a case, an action for declaring the social-family relationship between a legal father and a child is not conducive for the well-being of the child.153 Likewise, the ECtHR ruled that the placement in social-service care of a 9-month-old child who had been born in Russia following a gestational surrogacy contract entered into with a Russian woman by an Italian couple who had no biological relationship with the child did not violate Article 8 ECHR. The Court did not consider that the Italian courts were obliged to give priority to the preservation of the relationship between the Italian couple and the child. Rather, they had to make a difficult choice between legalising the illegal situation created by the couple as a fait accompli, or taking measures with a view to providing the child with a family in accordance with the legislation of adoption.154 The lack of genetic lineage between the wishing parents and the infant was one of several factors that apparently led to the ECtHR questioning a real surrogacy constellation and suspecting human trafficking.155 The ECtHR decided in a similar way when it was concerned with the question of legal motherhood of the desired mother who, although she did not give birth to the child, was genetically related to the child. Even in the case of genetic relationships, 146 ECtHR, Judgment of 13 February 2003, No. 42326/98, para. 45 – Odièvre v. France; see also ECtHR, Judgment of 25 September 2012, No. 33783/09, para. 58 – Godelli v. Italy. 147 ECtHR, Judgment of 3 November 2011, No. 57813/00, paras 88 et seq. – S.H. and others v. Austria. 148 ECtHR, Judgment of 26 June 2014, No. 65192/11, paras 96 et seq. – Mennesson v. France, Judgment of 26 June 2014, No. 65941/1, para. 79 – Labassée v. France; Judgment of 24 January 2017, No. 25358/12, paras 161 et seq. – Paradiso and Campanelli v. Italy. 149 ECtHR, Judgment of 24 January 2017, No. 25358/12, para. 208 – Paradiso and Campanelli v. Italy. 150 ECtHR, Judgment of 13 July 2006, No. 58757/00, para. 37 – Jäggi v. Switzerland; Judgment of 16 June 2011, No. 19535/08, para. 59 – Pascaud v. France. 151 See EGMR, Judgment of 16 June 2011, No. 19535/08, para. 68 – Pascaud v. France; Judgment of 22 March 2012, No. 23338/09, para. 78 – Kautzor v. Germany. 152 ECtHR, Decision of 5 November 2013, No. 26610/09 – Hülsmann v. Germany; Decision of 10 March 2015, No. 42719/14, para. 23 – Markgraf v. Germany. See also ECtHR, Advisory Opinion of 10 April 2019, No. P16-2018-001, paras 48 et seq. – Cour de Cassation (Gestational Surrogacy Arrangement). 153 For a fuller account see R Uerpmann-Wittzack, Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zum Familienrecht seit 2014, Zeitschrift für das gesamte Familienrecht 2016, p. 1897, at 1900. 154 ECtHR, Judgment of 24 January 2017, No. 25358/12, paras 209 et seq. – Paradiso and Campanelli v. Italy. 155 See K Duden, Anmerkung zum Fall Paradiso, Zeitschrift für das gesamte Familienrecht 2017, p. 445, at 445-446; R Uerpmann-Wittzack/A Prechtl, Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zum Familienrecht seit Ende 2016, Zeitschrift für das gesamte Familienrecht 2020, p. 469, at 470.

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[Identity Rights of the Child]

the Court holds that it is sufficient that there is the possibility of establishing legal parenthood by means of adoption, provided that this takes place sufficiently quickly.156 30 The name of a person is also a part of private life and personal identity and thus falls under the protection of Article 8 ECHR.157 In the refusal of State authorities to register double-family names for children, however, the ECtHR sees no violation of Article 8 ECHR, as this serves to protect future generations from "growing name chains" and thus from impairing the identity-forming function of names.158 With regard to the choice of given names, the Strasbourg Court also refers to the best interests of the child and the cultural importance of the name.159 Dress and other features of personal appearances, such as a person’s image, are also matters that concern private life.160 By contrast, the ECHR does not contain the right to a nationality.161 To some extent, however, this right can be vindicated through Article 8 ECHR in cases that the citizenship scheme results in statelessness for an individual.162 31 Under the ACRWC, its Article 6 only provides for the rights to birth registration, a name and nationality. No separate right to an identity of the child is provided. However, the African Committee of Experts on the Rights and Welfare of the Child holds the view that rights enshrined in Article 6 ACRWC together constitute the pillars of a person’s identity.163 This approach supports the view that there are other elements that form part of a person’s identity.164 With regard to nationality, the ACRWC is a rather progressive law instrument which is based on Article 1 of the 1961 Convention on the Reduction of Statelessness. Article 6 para. 4 ACRWC establishes State obligations with regard to the implementation of the right to a nationality, with particular focus on the prevention of statelessness. By doing so, the provision offers more explicit protection against statelessness for a child than Article 7 para. 1 CRC.165 It forces the Contracting States to adopt the principle of jus soli if the child would otherwise be stateless.166 Interestingly, also the American Convention on Human Rights, being a general human rights treaty, addresses the question of statelessness. Article 20 ACHR provides that every person has the right to the nationality of the State in whose territory he or she was born if he or she does not have the right to any other nationality. The provision establishes the jus soli principle as 156 ECtHR, Judgment of 16 July 2020, No. 11288/18, paras 58 et seq. – D. v. France. But see also the critical assessment by C von Bary, Anmerkung, Zeitschrift für das gesamte Familienrecht 2020, p. 1475. 157 See ECtHR, Judgment of 22 February 1994, No. 16213/90, para. 24 – Burghartz v. Switzerland; Judgment of 24 October 1993, No. 22500/93, para. 21 – Guillot v. France; Judgment of 2 June 2005, No. 77785/01, para. 23 – Znamenskaya v. Russia; Judgment of 3 May 2011, No. 56759/08, para. 55 – Negrepontis-Giannisis v. Greece. Similar assessment by CJEU, Judgment of 14 October 2008, Case C-353/06, ECLI:EU:C:2008:559 – Grunkin and Paul; Judgment of 8 June 2017, Case C-541/15, ECLI:EU:C:2017:432, paras 39 et seq. – Freitag. 158 ECtHR, Judgment of 6 May 2008, No. 33572/02 – v. Rehlingen and Others v. Germany. 159 See ECtHR, Judgment of 24 October 1993, No. 22500/93, para. 27 – Guillot v. France; Judgment of 6 September 2007, No. 10163/02, paras 31 et seq. – Johansson v. Finland; Judgment of 21 October 2008, No. 37483/02, paras 55 et seq. – Güzel Erdagöz v. Turkey. 160 ECtHR, Judgment of 1 July 2014, No. 43835/11, para. 107 – S.A.S. v. France; Judgment of 15 January 2009, No. 1234/05, para. 40 – Reklos and Davourlis v. Greece. 161 WA Schabas, The European Convention on Human Rights. A Commentary, 2015, Article 8, p. 358, at 378-379. 162 ECtHR, Judgment of 26 June 2012, No. 26828/06, para. 337 – Kuric and Others v. Slovenia. 163 ACERWC, General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child, ACERWC/GC/02, 2014, para 23. 164 U Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 400. 165 Similarly, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 7.12; DB Thronson, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 223, at 228. 166 ACERWC, General Comment No. 2 on the Right to a Name, Registration at Birth, and to Acquire a Nationality, ACERWC/GC/02, 2014, paras 83, 88.

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the law of last resort, should a person be unable to establish a nationality on any other basis.167 In contrast, the ECHR does not confer a right to a nationality, or the right to acquire one, upon either adults or children. However, the 1997 European Convention on Nationality aims to redress this deficiency. It affirms the general position that each State shall determine who is a national under its domestic law, but adds the requirement that statelessness shall be avoided, and no one shall be arbitrarily deprived of his or her nationality. Thus, also in Europe there is evidence for a slow but gradual shift towards ensuring that children should not remain stateless.168

Article 8 [States’ Duty to Protect the Identity of the Child] 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Protection of Identity (Article 8 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Re-establishment of Identity (Article 8 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 8 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 8 12

I. Generalities Article 8 para. 1 CRC is closely linked to the right in Article 7 CRC. Therefore, Article 1 8 CRC may appear, at first glance, to be an unnecessary and superfluous provision when compared to the more sophisticated rules laid down in Article 7 CRC. This is, however, not true. Because Article 8 para. 1 CRC does not provide an exclusive enumeration of the elements of identity, but is instead openly formulated in a non-exhaustive way, its rules and guarantees provide a more comprehensive protection than Article 7 CRC. 1 In addition, while Article 7 CRC guarantees the acquisition of the listed elements in a child’s identity, Article 8 para. 1 CRC seeks to preserve those elements. 2 As such, arbitrary deprivation of a given nationality, even if it does not leave a child without a nationality, could, for instance, still be challenged on the grounds that the result is inconsistent with the preservation of the child’s identity under Article 8 para. 1 CRC. 3 The background of Article 8 para. 2 CRC is the prevention of a reoccurrence of the 2 atrocities in the 1970 s and 1980 s under the military junta in Argentina when a large number of babies and children disappeared, some to be killed, others to be adopted by 167 J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 278. 168 J Chan, The Right to Nationality as a Human Right: The Current Trend towards Recognition, Human Rights Journal 12 (1991), p. 1, at 11. 1 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 291 et seq. 2 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 8.01. 3 J Tobin/F Seow, Article 7, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 237, at 257.

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childless couples linked to the official authoritarian regime at that time.4 Through Article 8 para. 2 CRC, Argentina sought recognition of the child’s inalienable right to retain his or her genuine personal, legal and family identity.5 The provision ensures that children are not only identified and registered after birth but their right to preserve their identities is respected, and in case of illegal deprivation, speedily re-established. 6

II. Protection of Identity (Article 8 para. 1 CRC) Article 8 para. 1 CRC obliges States Parties to undertake to respect a child’s right to preserve his or her identity. What is meant exactly by a child’s identity is not defined in the Convention. Article 8 para. 1 CRC only contains an exemplary list of various elements contributing to the identity of the child, such as nationality, name and family relationships, thus making reference to Article 7 para. 1 CRC. The drafting history illustrates that Article 8 para. 1 CRC aims to guarantee comprehensive protection of the identity and legal status of the child7 and obliges States Parties to undertake any appropriate measures to respect and ensure the preservation of this status. This includes special assistance from the State authorities in re-establishing an identity which has been the subject of interference.8 4 Since Article 8 para. 1 CRC does not exhaustively list the elements which build the child’s identity, its protection goes beyond the scope of Article 7 CRC. The CRC Committee has not yet given a definition of identity which is unsurprising given the complexity, the ambiguousness and the fluidity of the term.9 Both the development and preservation of identity are matters concerning the individual rights-holder, and as such, Article 12 CRC demands that the view of the child be given due weight.10 In any case, particular weight must be given under Article 8 para. 1 CRC to the cultural, ethnic, sexual, social and religious identity of the child.11 Likewise, the child’s right to knowledge of his or her biological parentage in the case of artificial insemination, especially when performed through in-vitro fertilisation with third persons’ gametes or in cases of gestational surrogacy agreements, can be subsumed under Article 8 CRC. 12 Because the right, in regards to family relationships, is only recognised within the domestic legal order, the Convention does not offer stronger protection than the one 3

4 See, e.g., F Lessa, Beyond Transitional Justice: Exploring Continuities in Human Rights Abuses in Argentina between 1976 and 2010, Journal of Human Rights Practice 3 (2011), p. 25 et seq. 5 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 282. 6 J Fortin, Children’s Rights and the Developing Law, 2003, p. 5 et seq. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 8.03. 7 See J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 10 et seq.; S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 162. 8 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 283. 9 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 292. 10 For a full discussion of this issue see J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 293 et seq. 11 D Hodgson, The International Legal Protection of the Child’s Right to a Legal Identity and the Problem of Statelessness, International Journal of Law and the Family 7 (1993), p. 255, at 265. 12 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 11 et seq. See also → Article 7 mns. 21 et seq.

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Art. 8

offered by States Parties.13 However, the CRC Committee regards the right to respect for one's own identity as crucial to the well-being of the child and even understands it as an absolute right.14 Given the rights of the biological or social parents and the rights of third parties, this view is by no means unproblematic.15 Also, under Article 8 para. 1 CRC, a child’s right to preserve his or her identity is not absolute and can be subject to lawful interference and must be balanced against the rights and interests of other persons. The phrase “undertake to respect” has been criticised as too vague and weakening 5 States’ obligations under Article 8 para. 1 CRC.16 However, it is clear from the drafting history that the obligation is mandatory and the presence of the word “undertake” does not absolve States Parties of their responsibility to ensure this right.17 Article 8 para. 1 CRC requires that States Parties refrain from actions which would violate a child’s right to preserve his or her identity. It also requires positive measures to be taken in order to give full effect to the child’s right to identity preservation.18 This means that States must take all reasonable measures to prevent non-State actors from unlawfully interfering with a child’s right to preserve his or her identity and to ensure that a child is able to effectively enjoy this right. Although States Parties enjoy a margin of appreciation in determining which measures to implement in order to respect, protect and ensure the right under Article 8 para. 1 CRC, the CRC Committee rightly stresses the importance of an effective system of birth registration.19 It has also called on States Parties to provide homeless/street children20 and children of ethnic minorities21 with identity documents, and to provide identity documents for internally displaced children.22 The CRC Committee further expresses concern at the overrepresentation of indigenous children in care and urges the States Parties to ensure full respect for the preservation of the cultural identity of children belonging to ethnic minorities.23 Moreover, the CRC Committee underscores that children who are adopted or born through assisted reproduction or surrogacy have the right to access information about their origins as well as their medical history.24 It is not entirely clear whether this approach is, in fact, a reasonable interpretation of Article 8 para. 1 CRC or whether it should not be better

13 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 161. See also ECtHR, Judgment of 3 November 2011, No. 57813/00, para. 97 – S.H. and others v. Austria. 14 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 31. 15 See → Article 7 mn. 18. 16 See, e.g., G Van Bueren, The International Law on the Rights of the Child, 1995, p. 119. 17 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 286. 18 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 286 et seq. 19 See → Article 7 mn. 4. 20 CRC Committee, Concluding Observations: Egypt, CRC/C/EGY/CO/3-4, 2011, para. 81. See also CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 42. 21 CRC Committee, Concluding Observations: Cambodia, CRC/C/KHM/CO/2-3, 2011, para. 80; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 36. 22 CRC Committee, Concluding Observations: Afghanistan, CRC/C/AFG/CO/1, 2011, para. 63. 23 CRC Committee, Concluding Observations: Canada, CRC/C/CAN/CO/3-4, 2012, para. 42; Australia, CRC/C/AUS/CO/4, 2012, paras 37 et seq. 24 CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/2, 2005, para. 53; Sierra Leone, CRC/C/SLE/CO/2, 2008, para. 46; Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 7 h; Israel, CRC/C/ISR/CO/2-4, 2013, para. 34.

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placed under the rules of Article 7 para. 1 CRC, where, of course, this position also remains controversial.25 6 Yet, a State Party clearly violates the identity rights of a person under Articles 7 and 8 CRC insofar it alters elements of his or her identity by attributing to him or her an age and a date of birth that do not match the information on the birth certificate or another official document that accredits the age, even after the individual has presented a copy of the certificate or the document to the competent authorities. 26 The CRC Committee considers that a child’s age and date of birth form part of his or her identity and that States Parties have an obligation to respect the right of the child to preserve this identity without depriving him or her of any elements of that identity.27 In the cases A.L. v. Spain (2019) and R.K. v. Spain (2019), the CRC Committee therefore noted that, although the author of the communication provided the authorities of the State Party with a copy of his birth certificate issued by his country of origin, which contained data pertaining to the child’s identity, the State Party failed to respect the identity of the author by denying the birth certificate had any probative value, without having checked the data contained in the certificate with the authorities of the author’s country of origin.28 A similar decision was taken by the CRC Committee in the case J.A.B. v. Spain (2019) where the authorities did not analyse the validity of the documents provided by the author and did not check the data of said documents with the authorities of the author’s country of origin.29 7 Not only within the context of Article 7 CRC but also within the context of Article 8 para. 1 CRC, the CRC Committee remains aware of the threat posed to a child’s identity by non-State actors. It therefore calls on States Parties to take reasonable measures to support children in the preservation of their identity and, in particular, to protect children against threats of sale and trafficking by private individuals.30 This demand is consistent with Article 25 lit. b of the Convention on the Protection of All Persons from Enforced Disappearance (CED) which recognises that acts of falsification, concealment or destruction of documents attesting to a child’s true identity shall be punishable as criminal offences under domestic law.31

III. Re-establishment of Identity (Article 8 para. 2 CRC) 8

The special content of Article 8 para. 2 CRC is revealed in its drafting history. The provision is based on a proposal from Argentina, which sought to react to the numerous forced disappearances and related crimes violating the identity of many babies and children during the military junta in the 1970 s and 1980 s.32 The introduction of Article 8 para. 2 CRC into the Convention text sought to create a legal basis to prevent such dis25 See J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 11 et seq. See also → Article 7 mns. 21 et seq. 26 CRC Committee, J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.10. 27 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, paras 3.5 and 12.10; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.10. 28 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.10; R.K. v. Spain, Views adopted on 18 September 2019, CRC/C/81/D/27/2017, para. 9.10. 29 CRC Committee, J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.10. 30 CRC Committee, Concluding Observations: Ukraine, CRC/C/15/Add.42, 1995, paras 11, 28. 31 For more detail see J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 291. 32 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 159; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 118 et seq.

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Art. 8

appearances, to re-establish identity after unlawful interferences and to assist in the reunification of parents with their children.33 Its main purpose is remedial.34 In contrast, Article 8 para. 2 CRC does not extend its scope to international child abduction, as addressed in Article 11 CRC, nor to potential loss of identity rights as a consequence of legal adoption in the sense of Article 21 CRC. The separation from parents, which is not always accompanied by a loss of identity, is to be fundamentally assessed pursuant to Article 9 para. 1 CRC. Certain overlaps between these protections are, nevertheless, conceivable.35 It is noteworthy, however, that Article 8 para. 2 CRC also extends its personal scope to unaccompanied and separated minors, in presupposing a mechanism for identifying the unaccompanied and separated child.36 Although originally intended to apply to disappeared children only, the CRC Committee considers that Article 8 para. 2 CRC extends to a duty to identify separated or unaccompanied children at ports of entry or as soon as their presence becomes known to the State authorities.37 According to Article 8 para. 2 CRC, in the case of an unlawful interference with 9 the child’s identity, States Parties have the duty to re-establish the identity of a child speedily. This obligation is unique within the system of human rights conventions.38 States Parties must ensure compliance with this obligation without undue delay, because time is a crucial factor when interventions in children’s rights are concerned. Where the separation of a child from his or her parents spans too long a time period, it may be contrary to the interests of the child to be returned to his or her parents because alienation may have occurred.39 The CRC Committee has not yet clarified the meaning of the term “speedily”. According to the ECtHR, however, speediness is to be determined in light of the facts of each individual case.40 The onus is on the State to explain and justify any delay. Neither an excessive workload nor a vacation period is a valid reason for delay,41 and States Parties are obliged to organise their administrative and judicial systems effectively. Taken together, Article 7 and Article 8 para. 2 CRC are critical for assisting displaced 10 and forcibly disappeared children to re-establish contact with their parents and family as well as for those children in the care of State authorities or who have been adopted, 33 See, in detail: OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 385-387. See also, with regard to the CED: IACtHR, Judgment of 24 February 2011, Series C No. 221, paras 121 et seq. – Gelman v. Uruguay; K Theurer, Durch Referendum bestätigte Amnestiegesetze in Fällen gewaltsamen Verschwindenlassens unvereinbar mit der Amerikanischen Menschenrechtskonvention, Europäische Grundrechte Zeitschrift 2012, p. 682, at 685 et seq. 34 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 300. 35 See J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 9 et seq. 36 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 428. 37 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 31. 38 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 5. 39 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 8. See also ECtHR, Judgment of 27 June 2000, No. 32842/96, para. 110 – Nuutinen v. Finland; Judgment of 10 November 2005, No. 40324/98, para. 100 – Süss v. Germany, both cases concerning the lengths of custody disputes. See further ECtHR, Judgment of 15 January 2015, No. 62198/11, paras 102 et seq. – Kuppinger v. Germany, as regards the enforcement of access rights. 40 ECtHR, Judgment of 21 October 1986, No. 9862/82, para. 55 – Sanchez-Reisse v. Switzerland. 41 See ECtHR, Judgment of 25 October 1989, No. 11400/85, para. 25 – Bezicheri v. Italy. However, a temporary backlog of business does not involve liablity on the part of the Contracting States provided that they take, with the requisite promptness, remedial action, see ECtHR, Judgment of 25 June 1987, No. 10527/83, para. 18 – Milasi v. Italy.

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to trace their roots at a later stage in life.42 Although the CRC Committee has yet to address the nature of the obligation to provide appropriate assistance and protection, it is reasonable to conclude that Article 8 para. 2 CRC requires States Parties to provide a legal mechanism for the re-establishment of the child’s identity.43 States authorities have to prevent falsification of a child’s true identity and to search for and identify any child whose identity has been altered and to return children subjected to enforced disappearances to their families of origin, provided the return is in the best interests of the child.44 Furthermore, the assistance provided must be accompanied by the necessary human, psychological, financial, logistic, scientific and other resources.45 A further example is found in Article 25 para. 4 CED, which requires a review of adoptions with the possibility of annulment where there is an implication of forced disappearance. But, also here, the State has to carry out the process of re-establishing the child’s identity in a way that prevents, or at least, minimises, any harm to the child’s well-being.46 11 Whereas Article 8 para. 1 CRC places the States Parties under a duty to respect and ensure the preservation of the child’s identity, Article 8 para. 2 CRC protects against unlawful or arbitrary interference with a child’s identity or with parts thereof (such as cultural identity).47 Falling within the meaning of “unlawful interference” are third-party acts or omissions that violate the national law of a State, or which are contrary to international law.48 Therefore, Article 8 para. 2 CRC must accommodate the possibility of a child’s identity or elements thereof being deprived lawfully.49 All lawful interferences in the identity of the child must, however, pursue a legitimate aim, the measures employed to achieve that aim must be proportionate and strictly required by the exigencies of the situation and be designed to support the welfare and the best interests of the child under Article 3 CRC. This means, for instance, that potential developments in the field of genetic engineering could find their limits in Article 8 CRC.50

IV. Embedding of Article 8 CRC into the System of International Human Rights Protection 12

Prior to the adoption of the CRC, no other general human rights treaty had included a right to preservation of identity. Even the African Charter on the Rights and Welfare of the Child, which was adopted after the CRC in 1990, contains no provision equivalent to Article 8 CRC.51 It was not until the adoption of the Convention on the Protection of 42 U Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 400. 43 JS Cerda, The Draft Convention on the Rights of the Child: New Rights?, Human Rights Quarterly 12 (1990), p. 115, at 116. 44 R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3 rd edn. 2007, p. 117. 45 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 302. 46 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 303. 47 OHCHR, Legislative History of the convention on the Rights of the Child, 2007, p. 386. 48 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 119; see also recently IACtHR, Judgment of 24 February 2011, Series C No. 221, paras 121 et seq. – Gelman v. Uruguay. 49 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 301. 50 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 163. 51 J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 283.

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[Separation from Parents]

All Persons from Enforced Disappearance in 2006 that included recognition of the right to preserve one’s identity.52 Article 25 para. 4 CED echoes various provisions of the CRC such as Article 3 and Article 12 CRC. Although other international human rights instruments do not incorporate a right to 13 identity, the issue has arisen in fact under international law. The ECtHR has recognised various elements of individual and family identity as part of the right to private and family life under Article 8 ECHR.53 It has also ruled on the "theft" of a child's identity on the Internet, by stating that the State’s positive duty to protect the private life under Article 8 ECHR extends to the protection of a person’s identity in online matters.54 Various Articles of Geneva Convention IV and of the Additional Protocols to the Geneva Conventions as well as Article 11 lit. e of the International Convention on the Prevention and Punishment of the Crime of Genocide also indirectly deal with the concept of a child’s identity. They aim to ensure proper identification of children, to facilitate reunification with parents and, in particular, recognise the harm of forcibly changing a child’s identity.55

Article 9 [Separation from Parents] 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

A/RES/61/177. Entered into force on 23 December 2010. ECtHR, Judgment of 13 July 2006, No. 58757/00, para. 37 – Jäggi v. Switzerland. See further → Article 7 mns. 27 et seq. 54 ECtHR, Judgment of 2 December 2008, No. 2872/02, paras 42 et seq. – K.U. v. Finland. 55 For a fuller account see J Tobin/J Todres, Article 8, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 281, at 284-285. 52

53

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[Separation from Parents] I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Prerequisites for Separation (Article 9 para. 1, para. 2 CRC) . . . . . . . . . . . . . . . . . 1. Substantive Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Conditions of Procedural Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Right to Contact and Maintenance of Personal Relations (Article 9 para. 3 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Information Requirements of the State Regarding the Whereabouts of Absent Family Members (Article 9 para. 4 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Embedding of Article 9 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 5 8 11 16 17

I. Generalities According to Article 9 para. 1 and para. 2 CRC, the child shall not, in principle, be separated from his or her parents against their will. Thus, the Convention recognises the significant importance of the biological and emotional bonds between parents and their children, the destruction of which is generally to be avoided. The CRC clearly positions family cohesion as highly important, which is confirmed in Recitals 5 and 6 of the Preamble. Under international human rights law, the family is recognised as the natural and fundamental unity of society.1 This recognition is also consolidated by several provisions in the Convention, for instance in Article 5, Article 7, Article 10 and Article 18 CRC. The interests of the child are usually best served when the child is raised by his or her parents and (extended) family. The CRC Committee notes that the family, as the fundamental group of society, is the natural environment for the survival, protection and development of the child.2 Therefore, it is necessary to support and promote the viability of joint parenting.3 Article 9 para. 3 CRC protects the rights of the child to maintain personal relations and direct contact with both parents on a regular basis after a necessary separation and, in the case of separation, Article 9 para. 4 CRC safeguards the right to information of those concerned. 2 The rules laid down in Article 9 para. 1 and para. 2 CRC apply only to interventions by State authorities which aim to separate the child from his or her parents and family environment in cases where the remaining of the child in the family environment would be contrary to his or her best interests. Separations that are caused, for example, by the execution of a custodial sentence of a parent or a child, or by the conscription of a parent or a child for military service do not fall within the scope of Article 9 para. 1 CRC.4 Such separations merely establish a right to information pursuant to Article 9 para. 4 CRC. Nevertheless, the CRC Committee is also dedicated to the specific needs of children of incarcerated parents and stresses that States Parties should endeavour to provide alternatives to detention and imprisonment and enable children the possibility of safe access to and suitable contact with their detained or incarcerated parents. 5 These include, for example, regular and on-demand appointments to care for family contacts, 1

See, e.g., Article 16 para. 3 UDHR, Article 23 para. 1 ICCPR and Article 10 para. 1 ICESCR. CRC Committee, Day of General Discussion: Children without Parental Care, 17 March 2006, CRC/C/153, 2006, para. 644. 3 R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3 rd edn. 2007, p. 236; O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 176. 4 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 8; G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 155. 5 CRC Committee, Report and Recommendations of the Day of General Discussion on Children of Incarcerated Parents, CRC/DGD/Report, 30 September 2011, paras 11 et seq. 1 2

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more intensive ways of contacting them by telephone or via Internet, the accomodation of the imprisoned parent together with the child in an open institution, or the accommodation of the detained parent in a detention centre that is close to the child's place of residence.6

II. Prerequisites for Separation (Article 9 para. 1, para. 2 CRC) The physical separation of parents and children by public authorities is the most 3 extensive interference with the right to respect for family life. The substantive and procedural hurdles to execute a separation under Article 9 para. 1 and para. 2 CRC are therefore correspondingly high. The requirements apply to all children within the meaning of Article 1 CRC, including children with disabilities7 and adolescents close to the age of majority.8 Although the closeness of the relationship between adolescents and their parents relaxes in the course of time, these relationships remain worthy of protection. It corresponds to the well-being of adolescents when they are in the care and responsibility of parents. It is not just children of tender age or pre-school children but all children who enjoy the right under Article 9 CRC.9 The CRC Committee routinely expresses concern about the separation of children, regardless of their age and status, from their parents and their family environment.10 Article 9 para. 1 CRC relates however only to separations that take place without any inter-country or transborder element. 11 Article 9 CRC applies exclusively to domestic situations in which parents and children are separated, but still live within the same country.12 For safeguarding the family unit between children and parents who reside in different countries, it is Article 10 CRC that addresses situations with cross-border dimensions.13 Furthermore, the content of Article 9 CRC is preoccupied with the standards and procedures that regulate State removal of a child from his or her parents and does not extend to separation acts performed by non-State actors.14 These acts are regulated by Article 11 CRC on international parental abduction, or by Article 35 CRC on the abduction of children by persons other than their parents. The inclusion of the phrase “against their will” gives rise to two remarks. First, it 4 tends to imply that where there is consent to the separation of a child from his or her 6 See, e.g., CRC Committee, Concluding Observations: India, CRC/C/IND/CO/3-4, 2014, para. 60; Tonga, CRC/C/TON/CO/1, 2019, paras 43-44. For more detail see S Schmahl, Auswirkungen der UNKinderrechtskonvention auf die deutsche Rechtsordnung, Recht der Jugend und des Bildungswesens 2014, p. 125, at 133. See also → Article 3 mn. 9. 7 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 41. For more detail see → Article 23 mn. 12. 8 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 80. 9 J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 313. 10 See, e.g., CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/3-4, 2013, para. 49; Timor-Leste, CRC/C/TLS/CO/1, 2008, para. 46; Russian Federation, CRC/C/RUS/CO/4-5, 2014, para. 3; Congo, CRC/C/COG/CO/2-4, 2014, para. 52. 11 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 170. 12 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 9.04. 13 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 203; S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 181. See also → Article 10 mn. 1. 14 J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 313.

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parents, Article 9 para. 1 and para. 2 CRC will have no application.15 Second, the “will” refers to both the will of the parents and the child and does not depend on the will of parents nor on the will of the child only.16 The CRC Committee is clear in that the consent of the child is a relevant but, of course, is not the only decisive factor.17 The right of children to parental care is, in general, inevitably subject to the will of parents.18

1. Substantive Standards 5

The criteria, upon which State interventions in family life are to be assessed, must be considered in light of the effective exercise of the right of parents and children to maintain personal relationships, and in the light of the child’s welfare and best interests.19 A disentanglement of children from their parents and family environment against their will is admissible only if it evidently serves the best interests of the child (see Article 3 CRC) and is absolutely necessary.20 Given the gravity of the impact on the child of separation from his or her parents, the threshold is high.21 Article 9 para. 1, sentence 2 CRC cites that the abuse or neglect of the child by the parents are examples of special circumstances warranting a separation. In particular, physical neglect, that is the failure to protect a child from harm and to provide the child with basic necessities including adequate food, shelter, clothing and basic medical care, can give rise for a State intervention.22 Also, heavy emotional and psychological neglect, e.g., chronic inattention to the child or exposure to intimate partner violence, drug or alcohol abuse, can instigate a separation from the parents or other primary caregivers.23 The list enshrined in Article 9 para. 1 CRC is illustrative and not exhaustive.24 However, child’s conduct disorders,25 disabilities,26 being born out of wedlock27 and parental poverty or any other economic or social hardship that families have to face28 are under no circumstances a permissible

15 J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 313. 16 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 21-22; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 9.10. 17 CRC Committee, Concluding Observations: Lebanon, CRC/C/15/Add.169, 2002, paras 36 et seq. See also R Hodgkin/P Newell, Implementation Handbook of the United Nations Convention on the Rights of the Child, 3rd edn. 2007, p. 122. 18 J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 314. 19 Similarly: Human Rights Committee, Tcholatch v. Canada, Views adopted on 20 March 2007, CCPR/C/89/D/1052/2002, para. 8.3. 20 CRC Committee, Concluding Observations: Finland, CRC/C/15/Add.132, 2000, para. 34; United Kingdom, CRC/C/GBR/CO/5, 2016, para. 53; Tunisia, CRC/C/TUN/CO/3, 2010, para. 46. 21 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 61. 22 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 20 a. 23 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 20 b; General Comment No. 14, CRC/C/GC/14, 2013, para. 72. 24 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 8. 25 CRC Committee, Concluding Observations: Spain, CRC/C/ESP/CO/3-4, 2010, para. 41. 26 CRC Committee, Concluding Observations: Poland, CRC/C/POL/CO/3-4, 2015, paras 32 et seq.; Canada, CRC/C/CAN/CO/3-4, 2012, para. 55. 27 CRC Committee, Concluding Observations: Tunisia, CRC/C/TUN/CO/3, 2010, para. 45. 28 CRC Committee, Concluding Observations: Suriname, CRC/C/SUR/CO/3-4, 2016, para. 24; Brazil, CRC/C/BRA/CO/2-4, 2015, para. 46; Sierra Leone, CRC/C/SLE/CO/3-5, 2016, para. 25; Armenia, CRC/C/ARM/CO/3-4, 2013, para. 3. This is also true for children in street situations living with their families, see CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 46.

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separation ground.29 It is also an insufficient cause to argue that a child possibly has better or more beneficial development opportunities elsewhere.30 Article 9 para. 1 CRC is not concerned with the provision of optimal or even average life and family conditions for the child, but merely with the prevention of serious threats to the development of the child.31 Therefore, the CRC Committee calls on the States Parties to ensure appropriate assistance to parents in particular situations of poverty or socioeconomic hardship, especially financial support and accessible early childhood education and care for young children, in order to facilitate and support family-based care for children wherever possible.32 Before State authorities may take immediate measures to separate children from 6 their parents, the direct threat to, the neglect or abuse of the child’s well-being must be evidenced by facts.33 The parental misconduct must be of such seriousness that the child’s physical, mental and/or intellectual well-being would be seriously jeopardised if he or she remained in the family. The authorities must strictly adhere to the principle of proportionality and of last resort.34 Because a separation is an ultima ratio solution, priority is given to an examination of whether the family situation could be improved through intensified advice and assistance by the competent State authority.35 The CRC Committee is very clear in stating that, given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a measure of last resort, as when the child is in danger of experiencing imminent harm or when otherwise necessary.36 Thus, the CRC Committee is seriously concerned about deprivation of parental rights that could be applied as a measure to punish parents.37 The State Party must rather guarantee that the situation of the child and his or her family has been appropriately assessed on an evidence-based approach, where possible, by a multidisciplinary team of well-trained professionals, ensuring that no other option can fulfil the child’s best interests.38 Fundamentally, the separation should only be of a

29 See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 80 et seq.; O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 181; J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 323. 30 CRC Committee, Concluding Observations: Sweden, CRC/C/SWE/CO/5, 2015, para. 1; United Kingdom, CRC/C/GBR/CO/5, 2016, paras 52 et seq. See also ECtHR, Judgment of 26 February 2002, No. 46544/99, para. 69 – Kutzner v. Germany; Judgment of 26 May 2009, No. 4023/04, para. 86 – Amanalachioai v. Romania; Judgment of 22 March 2018, Nos. 68125/14, 72204/14, para. 69 – Wetjen and Others v. Germany; Judgment of 10 January 2019, No. 18925/15, para. 48 – Wunderlich v. Germany. 31 S Graf Kielmansegg, Jenseits von Karlsruhe: Das deutsche Familienrecht in der Straßburger Rechtsprechung, Archiv des Völkerrechts 46 (2008), p. 273, at 277. 32 See CRC Committee, Concluding Observations: Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, para. 49; Portugal, CRC/C/PRT/CO/3-4, 2014, para. 40; Serbia, CRC/C/SRB/CO/2-3, 2017, para. 52. See also CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 63; General Comment No. 21, CRC/C/GC/21, 2017, para. 46. 33 See also ECtHR, Judgment of 8 April 2004, No. 11057/02, para. 99 – Haase v. Germany. 34 CRC Committee, Concluding Observations: Belarus, CRC/C/BLR/CO/5-6, 2020, paras 25-26. See also ECtHR, Judgment of 26 February 2002, No. 46544/99, paras 75 et seq. – Kutzner v. Germany; Judgment of 8 April 2004, No. 11057/02, paras 101 et seq. – Haase v. Germany. 35 M Parzeller/R Dettmeyer/H Bratzke/B Flaig/B Zedler, Schutz von Kindern vor Gewalt, Rechtsmedizin 2010, p. 147, at 152. 36 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 61. 37 CRC Committee, Concluding Observations: Belarus, CRC/C/BLR/CO/5-6, 2020, para. 25. 38 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 64.

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transitory nature.39 It should therefore either be limited to the shortest possible period,40 or intended that the measure be subject to regular, short-interval examinations to test their necessity.41 A State must undertake all reasonable measures to ultimately secure family reunion, as soon as the circumstances permit.42 On the other hand, it must not be ruled out from the outset that the separation in extreme cases, such as incurable drug addiction of parents with ensuing neglect of the care of the child, may be permanently affected in view of the best interests of the child.43 In any case, however, the States Parties are called upon to intensify their efforts to render appropriate assistance to parents, including counselling in child-rearing, service for the treatment of alcohol or drug-related problems, before resorting to separation.44 7 Article 9 para. 1 CRC does not distinguish between marital and non-marital children. The rights enshrined in the Convention apply equally to all children regardless of their status pursuant to the non-discrimination principle in Article 2 para. 1 CRC.45 It is for this reason that the CRC Committee has also expressed its concern at the wide over-representation of indigenous children in care and the abandonment of children with disabilities.46 On the other hand, Article 9 para. 1, sentence 2 CRC accounts for the fact that some factual situations require a separation. The provision explicitly assumes that in the case of parents who are living separately, a decision upon the place of residence of the child and therefore separation from one parent may be necessary. Consequently, the principle highlighted in Article 18 para. 1, sentence 1 CRC that both parents have common and joint responsibilities for the upbringing and development of the child, cannot apply unabated or in an absolute manner if the family is not intact but consists of separated parents.47

2. Conditions of Procedural Law 8

Pursuant to Article 9 para. 1, sentence 1 CRC, a separation must be implemented by the decision of a competent authority under the applicable laws and procedures which are subject to judicial review. The CRC Committee grants States Parties discretion on whether the executive or judiciary shall be responsible for the decision. Yet, if the decision is attributed to an administrative body in the first place, the parties must then have the right to bring the case to court.48 The ability to apply for review and a court 39 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 10. See also UN Guidelines for the Alternative Care of Children, A/RES/64/142, 20 December 2009, para. 14. 40 CRC Committee, Concluding Observations: Finland, CRC/C/15/Add.132, 2000, para. 36. 41 See → Article 25 mn. 3. For more detail see S Graf Kielmansegg, Jenseits von Karlsruhe: Das deutsche Familienrecht in der Straßburger Rechtsprechung, Archiv des Völkerrechts 46 (2008), p. 273, at 280. 42 CRC Committee, Concluding Observations: Haiti, CRC/C/HTI/CO/2-3, 2016, para. 43; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 42 d. 43 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 8. 44 CRC Committee, Concluding Observations: New Zealand, CRC/C/NZL/CO/5, 2016, para. 26; Canada, CRC/C/CAN/CO/3-4, 2012, para. 56; India, CRC/C/IND/CO/3-4, 2014, para. 56; China, CRC/C/CHN/CO/3-4, 2013, para. 49; Armenia, CRC/C/ARM/CO/3-4, 2013, para. 32. 45 See → Article 2 mns. 21, 32. 46 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 52; New Zealand, CRC/C/NZL/CO/5, 2016, para. 27; China, CRC/C/CHN/CO/3-4, 2013, para. 52. 47 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 233. See also → Article 18 mn. 4. 48 CRC Committee, Concluding Observations: Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 41; Serbia, CRC/C/SRB/CO/1, 2008, para. 40. See also K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 199.

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decision with respect to that review should be expeditious. This high standard, which means a matter of days rather than weeks, is necessary given the serious consequences associated with separating a child from his or her parents.49 The ECtHR also emphasises the need for comprehensive procedural safeguards to a judicial body particularly in the area of alternative care and child protection.50 The phrase “in accordance with applicable law and procedures” refers to the whole range of applicable domestic law but also means the quality of law requiring it to be compatible with the rule of law.51 Insofar as the wording of Article 9 para. 1 CRC uses the terminology “competent au- 9 thorities”, the term “authority” has not merely a procedural character, but is also meant in a substantive sense. The prerequisite is that the decision-makers have the necessary skills and expertise, are suitably trained, act child-sensitive and are not only legally but also psychologically qualified to make such serious decisions.52 Furthermore, States Parties have to ensure adequate safeguards, including the rights to be heard, to a fair trial and judicial review, as well as clear criteria, based on the needs and welfare of the child.53 Where possible, a multidisciplinary team of well-trained professionals is recommended because the situation of the child is complex and so are the caregiving abilities of the parents. Issues of neglect and/or abuse often do not only have psychological components but sociocultural ones as well.54 To New Zealand, the CRC Committee expressed its concern about enduring inadequate cultural capability of the State care system leading to indigenous children being separated from parents and overrepresented in public care institutions.55 According to Article 9 para. 2 CRC, a proceeding undertaken on the basis of Article 10 9 para. 1 CRC shall give all interested parties the opportunity to participate in the proceedings and to make their views known. Interested parties in this sense are always the parents and the child, who has an individual right to participation, depending on his or her age and maturity.56 Additional interested parties may be the grandparents, the siblings, the extended family under Article 5 CRC or, in the case of court proceedings, the authority responsible for the protection of the child, e.g., the guardian ad litem.57 As regards the participation rights of the child, these rights are detailed in Article 12 CRC. According to the CRC Committee, assessment of the best interests of the child when making a decision on the child’s place of residence, parental responsibilities, or custody or visitation can hardly be complete if the child is not given an opportunity to express his or her opinion.58 In this context, States Parties are called upon to adopt greater 49 J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 317. 50 U Kilkelly, in: T Liefaard/JE Doek (eds.), Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence, 2015, p. 193-209. 51 See Commission on Human Rights, Report of the Working Group, E/CN.4/1982/30/Add.1, 1982, para. 22. See also J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 317 et seq. 52 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 94; J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 9. 53 CRC Committee, Concluding Observations: Suriname, CRC/C/SUR/CO/3-4, 2016, para. 24 b. 54 K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 202. 55 CRC Committee, Concluding Observations: New Zealand, CRC/C/NZL/CO/5, 2016, paras 27-28. 56 K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 200 et seq. 57 UN Guidelines for the Alternative Care of Children, A/RES/64/142, 20 December 2009, para. 47. 58 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 43; Concluding Observations: Sweden, CRC/C/SWE/CO/5, 2015, para. 39; Hungary, CRC/C/HUN/CO/3-5, 2014, para. 23; China, CRC/C/CHN/CO/3-4, 2013, para. 55.

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efforts to include children with disabilities in separation procedures.59 The effective exercise of participation rights requires, of course, that the interested parties are afforded adequate access to information relevant to the decision. The right to information is inextricably linked to the rights to participation and expression of all parties, including the child.60 In proceedings relating to the withdrawal of parental custody, there applies an additional requirement for rapid action due to the severity of separation procedures.61

III. Right to Contact and Maintenance of Personal Relations (Article 9 para. 3 CRC) Article 9 para. 3 CRC ensures the maintenance of family contact in case of separation. The States Parties must respect the rights of a child separated from one or both parents to maintain regular personal relations and direct contact with them or with the non-resident parent, except if this is contrary to the child’s best interests. In the context of parental responsibilities and parental equality, the CRC Committee, in 2012, expressed concerns that in the northern areas of Albania, mothers were not allowed to maintain contact with their children when they lived on their own or went back to their original families following divorce or upon the death of their spouse. The CRC Committee recommended that the Albanian Government set up a system to facilitate relations between the child and both parents after divorce and ensure the responsibilities of both parents.62 The child’s right to maintain personal relations and direct contact with both parents on a regular basis under Article 9 para. 3 CRC also extends, according to the CRC Committee, to any person holding custody rights, legal or customary primary caregivers, foster parents and persons with whom the child has strong relationships.63 Furthermore, the CRC Committee stresses that the quality of the relationships and the need to retain them must be taken into consideration in decisions on the frequency and length of visits and other contacts when a child is placed outside the family.64 12 Article 9 para. 3 CRC guarantees the child’s right of maintaining personal relations and direct contact with the parent who is separated from him or her, but says nothing about the model of the regime or contact system to be offered by the Contracting States. In any case, an obligation to establish a parity caregiver model (so-called “exchange model”, “Wechselmodell”) in favour of the parents cannot be deducted from this rule.65 It is the right of the child and not of both parents to maintain contact and family relations that constitutes the focus of Article 9 para. 3 CRC. This approach contrasts fundamentally with the historical approach whereby access or contact was considered to be a basic right of parents.66 Only in serious and exceptional cases can the contact between the child and parents be denied. Where there are no such exceptional circumstances, it cannot be regarded as in the child’s best interests to completely interrupt 11

CRC Committee, General Comment No. 9, CRC/C/GC/9, 2007, para. 48. J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 11. See also → Article 12 mn. 7. 61 Human Rights Committee, Tcholatch v. Canada, Views adopted on 20 March 2007, CCPR/C/89/D/ 1052/2002, para. 8.9; E. B. v. New Zealand, Views adopted on 16 March 2007, CCPR/C/89/D/1368/2005, para. 9.3. 62 CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 53. 63 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 60. 64 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 65. 65 See (German) Federal Constitutional Court, Decision of 24 June 2015, 1 BvR 486/14, para. 18. See also → Article 18 mn. 5. 66 J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 330. 59

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the direct contact with their parents.67 Where one custodial parent denies contact and personal relations rights to the other potentially authorised parent without proving serious reasons, a contact ban is contrary to the rights of the child.68 The child’s right to maintain personal relations and direct contact with both parents is not dependent on the consent of the other parent. On the contrary, the States Parties must ensure that the rights of the holder of parental responsibility can be enforced even against the wishes of the custodial parent.69 Since Article 9 CRC does not distinguish between marital and non-marital children, it also follows from Article 9 para. 3 CRC that children born out of wedlock have a right to regular personal relations with their biological father.70 The biological father, under particular circumstances, has also the right to personal relations and direct contact with his child even when he is not the legal father.71 This right even applies in cases where it is not (yet) firmly established that the applicant is actually the biological father of the child.72 In any case, the best interests of the child, who lives with his or her legal father, but who (potentially) has a different biological father, in view of the realities of family life in the 21st century cannot be determined by a general legal presumption as was the case in former German civil law.73 However, according to the ECtHR, the right of the (presumed) biological father to have direct contact with the child does not imply an obligation to allow the presumed biological father to challenge the position of the legal father.74 Article 9 para. 3 CRC speaks of the obligation of States Parties to “respect the right 13 of the child” and therefore only suggests prima facie the existence of a defensive right against unlawful State interference. However, in light of Article 4 CRC, the provision must be considered as forming also a positive obligation of the States Parties to take all necessary measures to ensure the child’s right to maintain personal relations and direct contact with both parents.75 According to the Human Rights Committee, this includes ensuring that the competent authorities in proceedings relating to contact rights, e.g., upon the conclusion of a divorce, decide expeditiously and expediently.76 Long-term proceedings, especially in young children, lead to a child’s alienation from his or her parents (or a parent). A process that took three years, for instance, violated the right of the parents and children to a fair trial.77 The CRC Committee underscores this view. 67 Human Rights Committee, Tcholatch v. Canada, Views adopted on 20 March 2007, CCPR/C/89/D/ 1052/2007, para. 8.7. 68 See Human Rights Committee, Hendriks v. The Netherlands, Views adopted on 27 July 1988, CCPR/C/33/D/201/1985, para. 10.4. 69 Human Rights Committee, Asensi Martinez v. Paraguay, Views adopted on 27 March 2009, CCPR/C/95/D/1407/2005, para. 9. 70 I Baer, Verabschiedung des UN-Übereinkommens über die Rechte des Kindes im November 1989 in New York, Familie und Recht 1990, p. 192, at 194. See also ECtHR, Judgment of 26 February 2004, No. 74969/01, para. 48 – Görgülü v. Germany. 71 ECtHR, Judgment of 21 December 2010, No. 20578/07, paras 62, 67 et seq. – Anayo v. Germany; Judgment of 22 March 2012, No. 45071/09, paras 74 et seq. – Ahrens v. Germany. On the other hand, see also ECtHR, Judgment of 22 March 2012, No. 23338/09, paras 72, 76 – Kautzor v. Germany; Decision of 2 December 2014, No. 546/10, paras 21 et seq. – Adebowale v. Germany. 72 ECtHR, Judgment of 15 September 2011, No. 17080/07, paras 97 et seq. – Schneider v. Germany. 73 ECtHR, Judgment of 15 September 2011, No. 17080/07, para. 100 – Schneider v. Germany. 74 See ECtHR, Decision of 5 November 2013, No. 26610/09 – Hülsmann v. Germany; Decision of 2 December 2014, No. 546/10, paras 21 et seq. – Adebowale v. Germany. 75 See J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 329. 76 Human Rights Committee, Tcholatch v. Canada, Views adopted on 20 March 2007, CCPR/C/89/D/ 1052/2007, para. 8.9; E. B. v. New Zealand, Views adopted on 16 March 2007, CCPR/C/89/D/1368/2005, para. 9.3. 77 Human Rights Committee, Tcholatch v. Canada, Views adopted on 20 March 2007, CCPR/C/89/D/ 1052/2007, para. 8.11.

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In the case N.R. v. Paraguay (2020), it considers that court procedures establishing visitation rights between a child and a parent from whom he or she is separated must be expeditiously processed, since the passage of time may have irreparable consequences for the relationship between them. This includes the rapid enforcement of decisions resulting from those procedures.78 Also, the ECtHR has repeatedly emphasised the risk of alienation and the fact that a lapse of the time is already able of representing a factual decision on the merits. Therefore, cases where personal relations and direct contact between children and their parents are at stake, the administration of justice must be rapid and expedient.79 14 If State authorities order the separation of parents and child pursuant to Article 9 para. 1 and para. 2 CRC, they must additionally seek to limit the geographical distance between the child and his or her parents as much as possible to ensure that the right to personal relations in Article 9 para. 3 CRC can be implemented effectively. In view of this “closeness principle”, the CRC Committee has indicated that placing a child in an institution or foster care that is distant from the residence of the parents, or is otherwise inaccessible to them, is unacceptable.80 In case of the separation of several children from one family, the State authorities must further attempt to accommodate all siblings together in the same place.81 In particular, it is of importance that the siblings continue to be able to enjoy contact with both parents and with each other, at the same time. If this is not the case, the ECtHR, in the case Mustafa and Armagan Akin v. Turkey (2010) deemed it appropriate to examine whether the State authorities complied with their positive obligation emanating from Article 8 ECHR and whether they acted with a view to maintaining and developing the family ties in the best interests of the children.82 15 However, the positive obligation flowing from Article 9 para. 3 CRC does not extend to allow the State authorities to force a parent to exercise their access or contact rights. An access against the will of the rights-holder would result in more harm than good to the child.83 The reasoned refusal of a child to maintain contact with a parent must also be taken into account by the authorities. The view of the child may, insofar as the child has reached a sufficient level of maturity and development, even be decisive in answering the question of direct contact between the child and his or her parent(s). 84

78

8.7.

CRC Committee, N.R. v. Paraguay, Views adopted on 3 February 2020, CRC/ C/83/D/30/2017, para.

79 ECtHR, Decision of 27 June 2000, No. 32842/96, para. 110 – Nuutinen v. Finland; Judgment of 13 July 2000, No. 25735/94, paras 48 et seq. – Elsholz v. Germany; Judgment of 10 November 2005, No. 40324/98, para. 100 – Süss v. Germany; Judgment of 10 January 2008, No. 25706/03, paras 80 et seq. – Glesmann v. Germany; Judgment of 15 January 2015, No. 62198/11, paras 101 et seq. – Kuppinger v. Germany. 80 CRC Committee, Concluding Observations: Sweden, CRC/C/SWE/CO/5, 2015, para. 35; United Kingdom, CRC/C/GBR/CO/5, 2016, para. 54. 81 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 12. 82 ECtHR, Judgment of 6 April 2010, No. 4694/03, paras 21 et seq. – Mustafa and Armagan Akin v. Turkey. See also O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 177. 83 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 236. 84 J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 13.

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IV. Information Requirements of the State Regarding the Whereabouts of Absent Family Members (Article 9 para. 4 CRC) Article 9 para. 4 CRC obliges the States Parties to provide information on the where- 16 abouts of absent family members if their separation from the family is a consequence of another previous State action, such as detention, imprisonment, exile, deportation or death. Here, the focus is upon cases in which the separation of children and parents (or one parent) is not the intended aim for protective reasons but rather a side effect of the execution of a non-protective State action.85 The examples of separation initiated by States authorities in Article 9 para. 4 CRC provide only an illustrative list. The provision extends beyond such measures to cover any action initiated by the State, which includes clandestine actions of any kind.86 The right to obtain information on the whereabouts of an absent family member is not confined to the child or the parents but extends to a vast number of beneficiaries of the right, that is any member of the (extended) family. 87 On the other hand, the obligation to provide information is only invoked where a request is made to provide such an information. The rationale for such a requirement is not clear, since Article 19 para. 4 ACRWC does not make the information of the State Party dependent on a request.88 In any case, at the submission of a request, States Parties must, under Article 9 para. 4, sentence 2 CRC, ensure that such a submission shall of itself entail no adverse or negative consequences for any of the persons concerned. Article 9 para. 4, sentence 2 CRC is a response to the problem of enforced disappearances, i.e. the illegal abduction and murder of persons, including children, which was prevalent in some Latin-American States at the time when the Convention entered into force. The Latin American totalitarian regimes, from the 1960 s to 1990 s, had launched an unprecedented attack against sections of their own societies and committed gross human rights violations under the euphemistic cover of “subversive threat”.89 Against this background, Article 9 para. 4, sentence 2 CRC stands obviously in close connection to the requirements established in Article 8 CRC.90 The positive impact of Article 9 para. 4, sentence 2 CRC could have been further enhanced by stipulating a minimum content of the essential information and an express element of promptness.91 In the meantime, the Convention for the Protection of All Persons from Enforced Disappearance (CED) entered into force in 2009 and makes detailed provisions in this regard,92 which are also applicable to children. In the case Gelman v. Uruguay, the Inter-American Court of Human Rights classified the practice of violent abduction and disappearance, especially of children, during military dictatorships in South America as blatant violations of human C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 240. J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 337. 87 See Article 5 CRC. Further see J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, Article 9 mn. 30. 88 J Tobin/J Cashmore, Article 9, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 307, at 338. 89 See JP McSherry, Predatory States. Operation Condor and Covert War in Latin America, 2005, passim. 90 See → Article 8 mns. 2, 8, 10. 91 Critical assessment also by G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 262. 92 See D Diehl, in: A Pollmann/G Lohmann (eds.), Menschenrechte. Ein interdisziplinäres Handbuch, 2012, p. 326 et seq.; N Kyriakou, The International Convention for the Protection of all Persons from Enforced Disappearance and its Contributions to International Human Rights Law, With Specific Reference to Extraordinary Rendition, Melbourne Journal of International Law 13 (2012), p. 1, at 27 et seq. 85

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rights.93 The ECtHR further recognises a violation of Article 8 ECHR if the information on the whereabouts of a newborn shortly after birth is not given.94

V. Embedding of Article 9 CRC into the System of International Human Rights Protection The right of a child not to be separated from his or her parents and the associated procedural and information rights cannot be found with such explicitness as in Article 9 CRC in any other human rights conventions.95 The only exception is Article 19 ACRWC which mimics but does not mirror Article 9 CRC, since it does not provide that separation has to be a necessity.96 The features of Article 9 CRC rather represent a substantial expansion in the rights and protections accorded to children, their parents, and other interested parties relative to other international instruments that offer protection for the family unit, such as Article 8 ECHR and Article 23 para. 1 ICCPR. However, in view of Article 24 para. 1 ICCPR, the Human Rights Committee has stressed that it is admissible to remove a child from his or her family when this is necessary to protect the child’s welfare and best interests.97 Also, pursuant to Article 24 para. 3 of the EU Charter of Fundamental Rights, every child has a right to regular personal relations and direct contact with his or her parents; the norm is obviously inspired by Article 9 CRC.98 Yet, since all of these subjective rights are not absolute in character, a separation of children and parents may be admissible under certain conditions provided these are proportional and a measure of last resort.99 18 At the European level, the ECtHR has aptly highlighted the difficult situation in which the public authorities regularly find themselves when faced with a case of parental endangerment of the child’s welfare.100 If they remain inactive there is a risk that the child will be harmed and the authorities will be held accountable for their failure to act. On the other hand, where positive actions are taken, the State authorities are often accused of an unacceptable and hastily interference of the right to respect for family life. Therefore, a fair balance must be struck between the conflicting interests of the individual parties concerned and public interests, with the State authorities enjoying a certain 17

93 IACtHR, Judgment of 24 February 2011, Series C No. 221, paras 310 et seq. – Gelman v. Uruguay. For a fuller account see K Theurer, Durch Referendum bestätigte Amnestiegesetze in Fällen gewaltsamen Verschwindenlassens unvereinbar mit der Amerikanischen Menschenrechtskonvention, Europäische Grundrechte Zeitschrift 2012, p. 682 et seq. See also → Article 8 mn. 8. 94 ECtHR, Judgment of 26 March 2013, No. 21794/08, para. 74 – Zorica Jovaovic v. Serbia. 95 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 173. 96 For a fuller account see J Doek, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 8, 2006, Articles 8-9, p. 17-18. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 9.08. 97 Human Rights Committee, General Comment No. 17: Article 24, HRI/GEN/Rev.7, 1989, para. 6. See also Human Rights Committee, Buckle v. New Zealand, No. 858/1999, paras 9.1 and 9.2. 98 See A-M Böhringer, Schutz des Kindes und Jugendlicher, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 45 mn. 12. For more detail see S Hölscheidt, in: J Meyer (ed.), Charta der Grundrechte der EU, Kommentar, 5th edn. 2019, Article 24 mns. 33 et seq. 99 See Article 8 para. 2 ECHR as well as C Grabenwarter/K Pabel, Europäische Menschenrechtskonvention, 6th edn. 2016, § 22 mn. 46. 100 ECtHR, Judgment of 8 April 2004, No. 11057/02, paras 84 et seq. – Haase v. Germany; Judgment of 30 September 2008, No. 38000/05, paras 30 et seq. – R.K. and A.K. v. The United Kingdom; Judgment of 10 January 2019, No. 18925/15, para. 52 – Wunderlich v. Germany.

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margin of discretion.101 Given the importance of family life, however, a strong interest of the child must be relevant in order to justify separation from his or her parents. 102 In all decisions concerning children, their best interests must be paramount. 103 Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations. The child’s interest comprises of two limbs. On the one hand, it is clearly in the child’s interest to ensure his or her development in a sound environment, and a parent cannot be entitled under Article 8 ECHR to have such measures taken that would harm the child’s health and development.104 On the other hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots.105 It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family.106 Thus, the State authorities are obliged to seek alternatives to a separation, if this is in the best interests of the child.107 For instance, a separation of the child from his or her biological single mother may only be considered as a last resort; socio-economic reasons alone do not justify a separation.108 Financial and material poverty, or conditions attributable to such poverty, should never be the sole justification for removing a child from parental care. The ECtHR is very clear on that point. Thus, in the cases of Wallová and Walla v. Czech Republic (2006) and Saviny v. Ukraine (2008), the Court ruled that national authorities, instead of helping the parents cope with their social and economic difficulties, took the children into care, which amounted to a violation of Article 8 ECHR.109 The ECtHR re-underlines this argument in the case of Soares de Melo v. Portugal (2016), making explicit reference to the statements and recommendations of the CRC Committee.110 In addition, neither archaic cultural practices nor an irrational view of the world nor 19 the ongoing missionary effort to influence the religious orientation of the child can preclude the parenting ability of a parent unless the child is exposed to dangerous practices

101 ECtHR, Judgment of 13 July 2000, No. 25735/94, para. 49 – Elsholz v. Germany; Judgment of 8 April 2004, No. 11057/02, para. 85 – Haase v. Germany; Judgment of 12 July 2001, No. 25702/94, paras 154 et seq. – K. and T. v. Finland; Judgment of 14 March 2013, Nos. 18734/09, 9424/11, para. 48 – B.B. and F.B v. Germany. 102 ECtHR, Judgment of 26 February 2002, No. 46544/99, paras 69 et seq. – Kutzner v. Germany; Judgment of 16 February 2016, No. 72850/14, para. 89 – Soares de Melo v. Portugal; Judgment of 30 October 2018, No. 40938/16, paras 82 et seq. – S.S. v. Slovenia. See also M Palm-Risse, Der völkerrechtliche Schutz von Ehe und Familie, 1990, p. 347. 103 ECtHR, Judgment of 6 September 2018, No. 2822/16, para. 91 – Jansen v. Norway, with further references. 104 ECtHR, Judgment of 8 July 2003, No. 30943/96, paras 65 et seq. – Sahin v. Germany; Judgment of 16 February 2016, No. 72850/14, para. 93 – Soares de Melo v. Portugal. 105 ECtHR, Judgment of 13 March 2012, No. 4547/10, para. 134 – Y.C. v. The United Kingdom; Judgment of 16 February 2016, No. 72850/14, para. 91 – Soares de Melo v. Portugal; Judgment of 10 September 2019, No. 37283/13, paras 204 et seq., 208 – Strand Lobben and Others v. Norway, with further references. 106 ECtHR, Judgment of 19 September 2000, No. 40031/98, para. 59 – Gnahoré v. France; Judgment of 6 July 2010, No. 41615/07, paras 136 et seq. – Neulinger and Shuruk v. Switzerland; Judgment of 10 April 2012, No. 19554/09, para. 85 – Pontes v. Portugal. See also ECtHR, Judgment of 10 September 2019, No. 37283/13, para. 209 et seq. – Strand Lobben and Others v. Norway. 107 UN Guidelines for the Alternative Care of Children, A/RES/64/142, 20 December 2009, paras 14 et seq. See also ECtHR, Judgment of 21 September 2006, No. 12643/02, paras 68 et seq. – Moser v. Austria. 108 ECtHR, Judgment of 18 June 2013, No. 28775/12, paras 86 et seq. – R.M.S. v. Spain. 109 ECtHR, Judgment of 26 October 2006, No. 23848/04, paras 71 et seq. – Wallová and Walla v. Czech Republic; Judgment of 18 December 2008, No. 39948/06, paras 57 et seq. – Saviny v. Ukraine. 110 ECtHR, Judgment of 16 February 2016, No. 72850/14, paras 98 et seq. – Soares de Melo v. Portugal.

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contrary to his or her best interests.111 The State does not have the task of providing the best possible support for the child's abilities or advocating an improvement in education.112 Deficits in the parents' ability to educate the child cannot justify a separation of the child from the parents, insofar as the well-being of the child is not seriously endangered. Even with the risk of female genital mutilation, there is a need for certain signs of a present or at least imminent risk to the well-being of the child. Therefore, the ECtHR rightly notes a violation of Article 3 ECHR only if a girl is deported to a State in which she is demonstrably threatened with genital mutilation without authorities protecting her.113 On the other hand, parents may rightfully be deprived of their parental rights if there is a well-founded suspicion that they constantly beat and ill-treat their children, even for religious reasons.114 Also, the persistent refusal of parents to send their children to school in order to keep the children in a “symbiotic” family system is a relevant and sufficient reason under Article 8 ECHR for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home.115 In any case, however, the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, wherever possible.116 20 Similar to the requirements established in Article 9 para. 2 CRC, in the case of State ordered separation, the ECtHR calls for participation of the parents and the child at all stages of the proceedings.117 This includes a consultation of all interested parties as well as the submission of an expert appraisal.118 Only where the participation of the parents would lead to a serious endangerment of the child’s well-being, can this element be relinquished. If this is the case, the child shall be assigned a legal guardian acting on behalf of the child’s best interests (guardian ad litem).119 If wrong judgments were issued at the domestic level due to incomplete hearings, Article 8 ECHR is not violated by that alone. However, it is necessary for the courts to determine the facts in a sustainable manner if circumstances justify doubts about the correctness of the child's allegations that he or she has been severely physically abused by (one of) the parents.120 If it is possible to consult the child’s parents and to discuss with them the need for separation, there is no justification for urgent measures of the State. Accordingly, only upon the presentation of extraordinarily compelling reasons can an infant be immediately, and

ECtHR, Judgment of 12 February 2013, No. 29617/07, paras 38 et seq. – Vojnity v. Hungary. ECtHR, Judgment of 26 February 2002, No. 46544/99, para. 69 – Kutzner v. Germany; Judgment of 12 July 2001, No. 25702/94, para. 173 – K. and T. v. Finland; Judgment of 10 January 2019, No. 18925/15, para. 48 – Wunderlich v. Germany. 113 See ECtHR, Judgment of 19 January 2016, No. 27081/13, paras 62 et seq. – Sow v. Belgium. 114 ECtHR, Judgment of 22 March 2018, Nos. 68125/14, 72204/14, paras 72 et seq. – Wetjen and Others v. Germany. See also → Article 14 mn. 1; → Article 19 mn. 7. 115 ECtHR, Judgment of 10 January 2019, No. 18925/15, paras 49 et seq. – Wunderlich v. Germany. Further see → Article 28 mn. 12. 116 ECtHR, Judgment of 10 May 2001, No. 28945/95, para. 70 – T.P. and K.M. v. The United Kingdom; Judgment of 10 January 2019, No. 18925/15, para. 55 – Wunderlich v. Germany. 117 ECtHR, Decision of 13 July 2000, Nos. 39221/98, 41963/98, para. 138 – Scozzari and Guinta v. Italy. 118 ECtHR, Judgment of 13 July 2000, No. 25735/94, paras 53, 66 – Elsholz v. Germany; Judgment of 8 July 2003, No. 30943/96, paras 46 et seq. – Sahin v. Germany. 119 See S Schmahl, Report on Child-Friendly Justice: Existing International and European Standards, in: Council of Europe, Directorate General of Human Rights and Legal Affairs (ed.), Compilation of texts related to child-friendly justice, 2009, p. 20, at 29. 120 ECtHR, Judgment of 14 March 2013, Nos. 18734/09, 9424/11, paras 48 et seq. – B.B. and F.B. v. Germany. 111

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against the will of the mother, withdrawn from her care by a process in which neither she nor the child’s father actively participated in.121 Furthermore, after a separation of child and parents, the parents must be ensured 21 their right to maintain personal relations and direct contact with the child122 in order to maintain the bonds with the original (biological) family.123 The ECtHR underlines the importance of the child’s interests in preserving and developing his or her ties with his or her family, and in particular with his or her mother and father. It considers that, in principle, it is in the child’s best interests to maintain contact with both parents, insofar as practicable, on an equal footing, save for lawful limitations justified by considerations regarding the child’s best interests. The Court expressly details that the same rationale underpins both Article 8 ECHR and Article 9 para. 3 CRC.124 This also applies in the case of a detained or imprisoned parent. States Parties to the ECHR are therefore obliged to take measures to ensure that the child is able to visit the prison or detention centre in an appropriate and stress-free manner.125 Specifically, the rights of direct contact between parents and children are regulated in the 2003 CoE Convention on the access rights of children.126 This Convention relies essentially on the relevant case-law of the ECtHR. Thus, the Court regularly reiterates that in relation to the State’s obligation to implement positive measures, Article 8 ECHR includes a parental right to have steps taken to reunite them with their children and an obligation on the national authorities to facilitate such a reunion.127 In assessing whether the State’s positive measures are sufficient for the purpose of Article 8 ECHR, the Court determines whether the decision-making process, seen as a whole, provided the parent with the requisite protection of his or her interests.128 This depends on the particular circumstances of the case. The parent and the child must notably both have been placed in a position enabling them to put forward all arguments in favour of obtaining a contact.129 In cases concerning restrictions of parent’s contact with a child who has not reached his or her age of majority, the margin of appreciation accorded to the domestic courts is narrow and the ECtHR carries out a strict scrutiny.130 The reasons for a suspension of contact cannot, as a rule, be regarded as permanent (parents’ and children’s attitude may change in the course of time) and should generally be reviewed at regular intervals, unless the ECtHR, Judgment of 8 April 2004, No. 11057/02, para. 102 – Haase v. Germany. ECtHR, Judgment of 22 June 1989, No. 11373/85 – Eriksson v. Sweden; Judgment of 13 July 2000, No. 25735/94, paras 48 et seq. – Elsholz v. Germany; Judgment of 15 September 2011, No. 17080/07, para. 94 – Schneider v. Germany. 123 ECtHR, Judgment of 13 March 2012, No. 4547/10, paras 134 et seq. – Y.C. v. The United Kingdom; Judgment of 12 February 2013, No. 48494/06, para. 35 – Tóth v. Hungary; Judgment of 14 June 2016, No. 30955/12, para. 56 – Mandet v. France; Judgment of 27 July 2018, No. 16112/15, para. 60 – Fröhlich v. Germany. 124 ECtHR, Judgment of 10 January 2017, No. 32407/13, para. 81 – Nowakowski v. Poland. 125 ECtHR, Judgment of 17 April 2012, No. 13621/08, para. 131 – Horych v. Poland. See also ECtHR, Judgment of 9 October 2008, No. 62936/00, para. 246 – Moiseyev v. Russia; Judgment of 23 February 2012, No. 39758/05, paras 39, 47 – Trosin v. Ukraine. 126 CETS No. 192. 127 See ECtHR, Decision of 15 January 2000, No. 31679/96, para. 94 – Ignaccolo-Zenide v. Romania; Judgment of 23 September 1994, No. 19823/92, para. 58 – Hokkanen v. Finland; Decision of 27 June 2000, No. 32842/96, para. 128 – Nuutinen v. Finland; Judgment of 26 July 2011, No. 6457/09, para. 64 – Shaw v. Hungary. 128 ECtHR, Judgment of 10 November 2005, No. 40324/98, para. 89 – Süß v. Germany; Judgment of 6 October 2016, No. 23280/08, para. 75 – Moog v. Germany. 129 ECtHR, Judgment of 8 July 2003, No. 31871/96, paras 68-69 – Sommerfeld v. Germany; Decision of 3 April 2018, No. 43976/17, paras 17 et seq. – Sangoi v. Germany. 130 ECtHR, Judgment of 8 July 2003, No. 31871/96, para. 63 – Sommerfeld v. Germany; Judgment of 6 October 2016, No. 23280/08, para. 82 – Moog v. Germany. 121

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review would in itself seriously affect the child’s well-being.131 Furthermore, in view of Article 8 ECHR, it is inadmissible if, in a case for enforcing the right of contact between the child and the separated father, only a fine of 300 Euros is imposed on the mother who persistently undermines the contacts between the father and his son, although the possibility of ordering a fine of up to 25,000 Euros was provided for by domestic law.132 22 The CJEU holds a similar opinion in view of the Regulation (EC) No. 2201/2003133 concerning jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility.134 It also underscores that the reason why the best interests of the child have to be taken into consideration is to ensure respect for the child’s fundamental rights.135 Therefore, when applying the rules of jurisdiction in matters of parental responsibility recourse must be had to the criterion of proximity. Under that criterion, the jurisdiction of the courts of the EU Member States in matters of parental responsibility is, as a general rule, determined by the fact where the child is habitually resident at the time the courts are seized.136 In order to be regarded as habitually resident, the child must be physically present in a Member State, and his or her presence must not be temporary or intermittent.137 23 There is ample case-law on the part of the IACtHR with regard to enforced disappearances, which are the subject of Article 9 para. 4 CRC. Thus, in the landmark decision Velásquez Rodríguez v. Honduras (1988) the Court rightly held that the phenomenon of enforced disappearances is a complex and often continuing form of human rights violation that must be understood and confronted in an integral fashion.138 In Europe, however, the relevant case-law focuses less on enforced disappearances but rather on the so-called extraordinary renditions. After 9/11, the US Central Intelligence Agency set up an apparatus, by which it collected information about suspected terrorists, abducted them, transferred them to distinct third countries in Europe where they were detained incommunicado and tortured for interrogation purposes. In several judgments, starting with the ground-breaking decision in Khaled el-Masri v. Macedonia (2012), the ECtHR held that the cooperation of national security authorities of the States Parties to the ECHR with the CIA in extraordinary renditions infringed their positive duty, under Articles 3, 5 and 13 ECHR, to protect and to ensure human rights.139

131 ECtHR, Decision of 19 June 2003, No. 46165/99 – Nekvedavicius v. Germany; Judgment of 28 April 2016, No. 20106/13, para. 49 – Buchleither v. Germany. 132 ECtHR, Judgment of 15 January 2015, No. 62198/11, paras 105 et seq. – Kuppinger v. Germany. 133 OJ EU 2003, No. L 338, p. 1. 134 See CJEU, Judgment of 2 April 2009, Case C-523/07, ECLI:EU:C:2009:225, paras 29 et seq. – Korkein hallinto-oikeus. 135 CJEU, Judgment of 23 December 2009, Case C-403/09 PPU, ECLI:EU:C:2009:810, paras 53-55 – Detiček; Judgment of 5 October 2010, Case C-400/10 PPU, ECLI:EU:C:2010:582, para. 60 – McB.; Judgment of 27 October 2016, Case C-428/15, ECLI:EU:C:2016:819, para. 44 – Child and Family Agency. 136 CJEU, Judgment of 27 October 2016, Case C-428/15, ECLI:EU:C:2016:819, paras 45-46 – Child and Family Agency. 137 CJEU, Judgment of 17 October 2018, Case C-393/18 PPU, ECLI:EU:C:2018:835, paras 50 et seq. – UD v. XB, with further references. 138 IACtHR, Judgment of 29 July 1988, No. 7920, paras 130 et seq. – Velásquez Rodríguez v. Honduras. Since Velásquez Rodríguez the Inter-American Court of Human Rights has delivered more than 30 judgments on enforced disappearances. 139 ECtHR, Judgment of 13 December 2012, No. 39630/09, paras 215 et seq. – el-Masri v. Former Yugoslav Republic of Macedonia. For a fuller account on the case-law of the ECtHR in the matter see S Schmahl, in: J-H Dietrich/S Sule (eds.), Intelligence Law and Policies in Europe, 2019, p. 291, at 315 et seq.

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Article 10 [Family Reunification] 1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Entry and Exit Conditions for the Purpose of Family Reunification (Article 10 para. 1, para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Positive, Humane and Expeditious Proceedings (Article 10 para. 1 CRC) 2. Right to Personal Relations and to Direct Contact (Article 10 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Embedding of Article 10 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 4 12 17

I. Generalities Article 10 CRC, which regulates family reunification, is strongly connected to Article 1 9 CRC.1 However, whereas Article 9 CRC considers the relationship between parent and child from a domestic legal perspective and within a State’s jurisdiction,2 Article 10 CRC concerns situations where children and parents live or reside geographically apart in different countries. The child’s right to maintain regular personal contact, as provided for in Article 9 para. 3 CRC, and the fundamental principle of the unity of the family, as reflected in Article 9 para. 1 CRC, are under Article 10 CRC extended to those cases in which children and parents reside in different States. The drafters expressly decided that the international aspects of familial and parental separation and reunification should be dealt with distinctively from Article 9 CRC in a separate provision.3 Under a cross-border scenario and an inter-State dimension of familial separation, the main goal of preservation of the family environment for the child is additionally complicated by the fact that the child’s parents, and often a child and one of his or her parents, are separated by the State borders.4 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 245. See → Article 9 mn. 3. 3 See Commission on Human Rights, Report of the Working Group, E/CN.4/1983/62, 1983, paras 8-10, 20-21; E/CN.4/1989/48, 1989, para. 203. 4 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 178. 1

2

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The scope of Article 10 CRC is not entirely clear when considered in view of Article 2 para. 1 CRC, which requires States Parties only to ensure the rights of the Convention for the children who are subject to their jurisdiction.5 A narrow interpretation of the provision would mean that Article 10 CRC only applies to children who submit an application for family reunification within the same State’s jurisdiction. The scope of Article 10 CRC would thereby be restricted to cases where the child is already resident in a State where the parents, for reasons of reunification, also wish to be residents. Since this assumption would not be logical in terms of the purpose of the Convention, the term “jurisdiction” in Article 2 para. 1 CRC must be interpreted broadly in the context of Article 10 CRC. In circumstances where a family is separated by a border, a parent has a right to seek to join his or her child in the child’s country of residence, in the same way that a child has a right to seek to join his or her parent in the parent’s country of residence.6 Article 10 CRC covers all children dependent upon the entry decision of the State Party concerned, including decisions relating to immigration control.7 The CRC Committee specifies that determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, particular vulnerabilities and protection needs. Consequently, allowing the child access to the territory is a prerequisite to this initial assessment process.8 However, Article 10 CRC does only deal with applications and appropriate procedures to enter or leave territories for the purpose of family reunification. It does not guarantee a particular outcome of the proceedings.9 3 Child marriages where either two minors are married or one of the spouses is significantly underage do only exceptionally fall under the ambit of Article 10 CRC. Although the Convention does not standardise a fixed age limit for marriage,10 marriages in which a spouse is clearly a minor are regularly considered as infringing the best interests of the child within the meaning of Article 3 para. 1, read in conjunction with Article 10 CRC. The CRC Committee emphasises this view on a recurring basis.11 2

II. Entry and Exit Conditions for the Purpose of Family Reunification (Article 10 para. 1, para. 2 CRC) 1. Positive, Humane and Expeditious Proceedings (Article 10 para. 1 CRC) 4

Just as in Article 9 para. 1 CRC, which places the separation of parent and child under strict conditions in order to protect and promote the integrity of the family environment, Article 10 para. 1 CRC aims to guarantee the family unit.12 The separation of a child from his or her family can have debilitating effects on a child’s physical and See → Article 2 mns. 1 et seq. JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 350. 7 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 248; C Smyth, in: U Kilkelly/ T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 423, 425. 8 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 20. 9 JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 345. 10 See → Article 1 mns. 3 et seq. 11 See CRC Committee Concluding Observations: Azerbaijan, CRC/C/AZE/CO/3-4, 2012, para. 4; General Comment No. 20, CRC/C/GC/20, 2016, para. 40. See also CEDAW Committee/CRC Committee, Joint General Comments No. 31 and 18, CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 19. But see also → Article 1 mn. 4; → Article 2 mn. 24. 12 V Chetail, International Migration Law, 2019, p. 128. 5

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emotional well-being and may seriously impede a child’s development. Children are less able than adults to comprehend the circumstances of any separation, in particular, when this separation has an inter-State dimension.13 Article 10 para. 1 CRC gives therefore formal expression of the objective that the child should grow up in a family environment as the natural and fundamental group unit of society.14 Since Article 10 para. 1 CRC makes explicit reference to Article 9 para. 1 CRC, it is evident that both provisions seek to solidify the principle of family unity.15 For reasons of consistency, the concept of family in Article 10 CRC is to be understood in an extensive way, given that Article 5 CRC does not only mention the core but also the extended family.16 Moreover, the reference to Article 9 para. 1 CRC makes it clear that, when considering the requirements of Article 10 para. 1 and para. 2 CRC, the child’s best interests should carry the same importance as they do with regard to Article 9 para. 1 CRC. Thus, it is primarily the child’s best interests and not those of parents which must be the reason for the family reunification.17 Article 10 CRC clearly stipulates an obligation of the States Parties to consider the child’s best interests in this regard.18 This duty applies to both the legislature and the administrative practice. Or in the words of the CRC Committee: “all efforts should be made to return an unaccompanied or separated child to his or her parents except where further separation is necessary for the best interests of the child”. 19 The guaranteed rights to movement under Article 10 para. 1 CRC exist exclusively for 5 the purpose of family reunification. This strict requirement for a nexus between family reunification and entering or leaving a State was framed because of the concern amongst mainly Eastern bloc States which at the time of the drafting of the CRC still heavily restricted the freedom of their citizens to emigrate.20 Entry or exit claims for any other reason than family reunification are not guaranteed under Article 10 para. 2 CRC. This is also the case when the right to enter or exit a State is abused, because one parent has taken a child into another State illegally.21 Such a measure, undertaken not for the purpose of family reunification, but conversely precisely to separate the child from a parent, is not covered by Article 10 CRC, but instead constitutes the subject matter of Article 11 CRC.22 In principle, Article 10 para. 1 CRC does not contain any substantive provisions 6 regulating the conditions under which entry applications or exit requests have to be recognised by the competent authorities. It is rather a procedural provision relating to family reunification.23 Yet, the substantial right to leave any country, including one’s own, and the right to enter one’s own country are widely guaranteed under international human rights law (see, e.g., Article 12 para. 2 and para. 4 ICCPR). Article 10 para. 1 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2006, para. 18. JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 345 et seq. 15 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 191. See also → Article 9 mn. 3. 16 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 27. See also → Article 5 mns. 2 et seq. Different view by G Van Bueren, The International Law on the Rights of the Child, 1995, p. 71. 17 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 247. 18 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 248. 19 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 81. 20 See Commission on Human Rights, Report of the Working Group, E/CN.4/1983/62, 1983, paras 11-12, 19, 33-34. 21 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 246. 22 See → Article 11 mn. 10. 23 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 245. See also V Chetail, International Migration Law, 2019, p. 128. 13

14

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[Family Reunification]

CRC reaffirms that these general human rights apply to children and their parents in the family reunification context. Yet, Article 10 para. 1 CRC goes even one step further by conferring an express right to apply to enter a country other than one’s own or remain in the territory for the purpose of family reunification.24 Hence, any State Party which has a blanket prohibition on family reunification will violate the provision.25 Furthermore, Article 10 para. 1 CRC creates a certain presumption in favour of family reunification, given the general overriding principle of the best interests of the child under Article 3 CRC which must be a primary consideration.26 Nevertheless, Article 10 CRC does not mandate that a State must approve applications to enter or leave their jurisdiction. From Article 10 para. 1 CRC arises neither a legal entitlement to residency in a third State nor a certain result.27 Although there was little disagreement during the drafting of the CRC that parents and children separated by State boundaries should have a right to apply for family reunification,28 the drafters remained reluctant to assume legal obligations on the States Parties which regulated the circumstances in which a non-national could be permitted to enter a third country. Immigration control is an area traditionally regarded as falling within the exclusive jurisdiction of the individual States.29 Therefore, Article 10 CRC merely creates an unqualified entitlement to apply for reunification and a presumption in a good faith-decision in favour of reunification.30 Insofar as the CRC Committee recommends that the State Parties ensure a general statutory right for children of foreign nationals to family reunification up to the age of 18 years,31 it falls short of the text and the drafting history of Article 10 para. 1 CRC which both do not establish an entitlement to entry.32 7 Pursuant to Article 10 para. 1, sentence 1 CRC, applications for entry or exit, which would be undertaken in respect to family reunification, are to be administered in a positive, humane and expeditious manner. This applies to both applications from children and from those of their parents.33 The CRC Committee is of the view that the rupture of the family unit by the expulsion of one or both parents based on a 24 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 28. 25 JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 351. 26 EF Abram, The Child’s Right to Family Unity in International Immigration Law, Law and Policy 17 (1995), p. 422, at 423. 27 F Fritzsch, Neue Bleiberechte aufgrund der UN-Kinderrechtskonvention oder der EU-Grundrechtecharta?, Zeitschrift für Ausländerrecht und Ausländerpolitik 2014, p. 137, at 138; JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 353. Different assessment by H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2011, p. 24. 28 See EF Abram, The Child’s Right to Family Unity in International Immigration Law, Law and Policy 17 (1995), p. 422 et seq. 29 See Commission on Human Rights, Report of the Working Group, E/CN.4/1986/39, 1986, paras 23, 31; E/CN.4/1987/25, 1987, para. 133. See also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 185-186; JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 347. 30 V Chetail, International Migration Law, 2019, p. 128. See also DB Thronson, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 223, at 229. 31 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CP/3-4, 2014, para. 45; Switzerland, CRC/C/CHE/CO/2-4, 2015, para. 68. See also CMW Committee/CRC Committee, General Comment No. 4 of the CMW Committee and General Comment No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 35. 32 Rightly so, JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at. 353. 33 See JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 348.

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breach of immigration laws related to entry or stay is regularly disproportionate. States Parties are urged to find sustainable, rights-based solutions for those families and the decision should be based on a robust assessment in which the child’s best interests are upheld as a primary consideration.34 Where the expulsion of parents is based on a non-immigration-related criminal offence, their children’s rights should be ensured. 35 Thereby, the meaning of parents under the Convention must not be confined to a child’s biological parent and can extend to his or her genetic or social parent. What is decisive in terms of Article 10 CRC is that it is the person who has the legal responsibility for the physical and day-to-day care of the child.36 The inclusion of parental rights in Article 10 CRC is not to be underestimated, particularly given the CRC’s focus on the conferral of children’s rights. Yet, Article 10 CRC is intended to cover situations in which children are separated from their parents, or parents are separated from each other while the child is living with one of them.37 Although, in practice, Article 10 CRC is likely to be of most relevance to refugee children, it remains applicable to all children and parents separated by State borders, regardless of whether the separation is permanent or temporary.38 Under the processing of applications, the obligation upon the administrative authori- 8 ties to deal with family reunification applications in a positive, humane and expeditious manner entails a duty to impartial examination of requests and a decision based on objective facts.39 States Parties are obliged to act positively but are in no way prejudged for a certain outcome of their deliberations on the question of family reunification. 40 Rather, an appropriate and proportionate balance should be made between the State's interest in controlling immigration and the child's private interest in family reunification, whereby the object and purpose of the Convention indicate that priority shall be given to the best interests of the child, even if no direct entitlement of the child to family reunification can be derived neither from Article 3 para. 1 CRC nor from Article 10 CRC.41 Nevertheless, there is a strong presumption in favour of reunification, and a State wishing to refuse an application for reunification will bear the burden of demonstrating why the refusal is justified, also with regard to the best interests of the child under Article 3 CRC.42 Against this background, the CRC Committee regularly expresses its concern that State requirements and procedures for family reunification of refugee families are often too complex and lengthy and recommends measures to facilitate procedures.43 The CRC Committee makes clear that these procedures should be humane 34 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 34. 35 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 29. 36 JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 350. 37 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 214. 38 JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 250. 39 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 192. 40 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 215-216. 41 See → Article 3 mn. 6. 42 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 86; see also JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 349, 354, and 357. 43 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 54 et seq.; Belgium, CRC/C/BEL/CO/3-4, 2010, para. 74; Finland, CRC/C/15/Add.272, 2005, para. 49; France, CRC/C/15/Add.240, 2004, para. 31; Spain, CRC/C/15/Add.185, 2002, para. 34.

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in that children should not be required to take part in any investigations that could harm their health or psychological well-being, and expeditious in that procedures on family reunification should be prioritised and completed in the shortest time possible, since prolonged decision-making has particularly adverse effects on children as they evolve. 44 Although the CRC Committee has yet to specify the length of time which will satisfy the “expeditious” criterion, it has made clear that, in any case, a process which takes over a year is too long.45 9 Moreover, the CRC Committee observes that national immigration authorities which refuse to grant a visa mainly because of Islamic kafalah arrangements reflect a failure to positively consider the specific situation of the child.46 This is best illustrated by the case Y.B. and N.S. versus Belgium, decided by the CRC Committee in 2018. The case was about a child born in Morocco to an unknown father and abandoned at birth by her biological mother. The Moroccan authorities authorised the placement of the child with a married Belgian-Moroccan couple, living in Belgium, as foster parents under the kafalah system. The foster parents, however, were unable to apply for a visa on grounds of family reunification, since the Belgian authorities determined that kafalah was not adoption and did not confer any right of residence to the child. The CRC Committee rightly stressed that the immigration authorities had not given any consideration to the emotional ties that have bound the foster parents and the child. They have taken no account of the child’s previous life with the foster parents and the de facto family ties that have naturally been forged by their life together over the years.47 In the CRC Committee’s view, Article 10 CRC does not oblige a State Party in general to recognise the right to family reunification for children in kafalah arrangements. The CRC Committee is nonetheless of the opinion, that, in assessing and determining the best interests of the child for the purpose of deciding whether to grant the child a residence permit, the State Party is obliged to take into account the de facto family ties that have developed on the basis of Islamic kafalah.48 This view is to be agreed upon. Firstly, Article 10 para. 1 CRC demands from the States Parties that any application for family reunification must take place in a positive, humane and expeditious manner. Secondly, the term “family” in Article 5 CRC must be interpreted in a broad sense to include biological, adoptive or foster parents, or where applicable, the members of the extended family or community as provided for by local custom, which includes Islamic kafalah arrangements.49 10 Under Article 10 para. 1, sentence 2 CRC the application to enter or exit may under no circumstance entail adverse consequences for the applicants and for the members of their family. Adverse consequences may be realised mainly in the form of threats, harassments or intimidation of individuals who submit a family reunification application, and their family members. This includes punishments of any kind, as well as intimidation by physical force and threats to the loss of a job for one or more family members

44 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 93. Further see R Hodgkin/P Newell, Implementation Handbook for the convention on the Rights of the Child, 3rd edn. 2007, p. 138; EF Abram, The Child’s Right to Family Unity in International Immigration Law, Law and Policy 17 (1995), p. 422, at 425. 45 CRC Committee, Concluding Observations: France, CRC/C/15/Add.240, 2004, paras 31 et seq. 46 For more detail on kafalah arrangements see → Article 21 mn. 2. 47 CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/ 2017, para. 8.5. 48 CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/ 2017, para. 8.11. 49 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 59. See also → Article 5 mn. 4.

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or a school or university place for the child.50 The policy to threaten such adverse effects was familiar in the practices of the former Soviet Union and other Eastern bloc States before their change in political orientation after the fall of the Iron curtain.51 Finally, Article 10 para. 1 CRC is complemented by Article 22 para. 2 CRC which 11 provides that States Parties are required to provide assistance to trace the parents of any refugee child in order to obtain information necessary for familial reunification. The CRC Committee therefore emphasises that the obligations arising from Article 10 para. 1 CRC should be observed especially in relation to unaccompanied minors, who are specifically protected under Article 22 CRC.52 In such cases, the particular circumstances of each case must be considered.53 In this way, family reunification may not take place in the country of origin of a refugee minor, if there is a substantial risk that the safety or the social and economic circumstances of the child upon his or her return would be negatively affected. The integrational progress that the child has made in the new country of residence and the period of absence in the country of origin must be considered, too. The better the child is integrated into the society of the State of residence and the longer he or she was absent from the country of origin, the more the return of the child to his or her country of origin is to be excluded.54 This view of the CRC Committee is supported by the rights of the child contained in Articles 7 and 8 CRC which both aim to ensure personal identity and continuity of the child. Moreover, any decision about where and how a family reunification is to be executed best must also take the views of the child into account (see Article 12 CRC). Only in exceptional cases, a child may be returned to his or her country of origin when fundamental public interests outweigh the interests of the child to remain in the host State. 55 This is the case if the child represents a serious threat to the security of the country in which he or she resides. However, a general immigration control, cannot, as a rule, prevail over the child’s interest in family reunification.56 This applies even for unaccompanied refugee minors, who should be assigned the necessary legal support in order to seek family reunification. The governmental pursuit of cost savings as well as the aim to accelerate foreign and asylum proceedings57 have far less weight.58

2. Right to Personal Relations and to Direct Contact (Article 10 para. 2 CRC) Like Article 10 para. 1 CRC, also Article 10 para. 2 CRC explicitly refers to Article 9 12 para. 1 CRC and therefore has the aim of confirming the principle of family unity.59 In H Hannum, The Right to Leave and Return in International Law and Practice, 1987, p. 74. S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 194. 52 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 83. Further see CRC Committee, Concluding Observations: Malta, CRC/C/15/Add.129, 2000, para. 43; Switzerland, CRC/C/CHE/CO/2-4, 2015, para. 68; Germany, CRC/C/DEU/CP/3-4, 2014, para. 45; China, CRC/C/CHN/CO/3-4, 2013, para. 51. 53 To the following see CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 83-88. 54 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 84. 55 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 86. 56 See H Krieger, Der grundrechtliche Anspruch von Kindern irregulärer Migranten auf chancengleiche Bildung, Neue Zeitschrift für Verwaltungsrecht 2007, p. 165, at 170. 57 See E Peter, Die Rücknahme des deutschen Ausländervorbehalts zur UN-Kinderrechtskonvention im Spannungsfeld verfassungsrechtlicher Kompetenzzuweisung, Zeitschrift für Ausländerrecht und Ausländerpolitik 2002, p. 144 et seq. 58 H Heinhold, in: H Kauffmann/A Riedelsheimer (eds.), Kindeswohl oder Ausgrenzung? Flüchtlingskinder in Deutschland nach der Rücknahme der Vorbehalte, 2010, p. 60, at 64 et seq. 59 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 195. 50

51

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contrast to Article 10 para. 1 CRC, which is focused on the facilitation of family reunification in trans-border situations, Article 10 para. 2 CRC addresses the maintenance of contact between children and their parents who live in different States. Article 10 para. 2 CRC gives a child, whose parents reside in different States, the right to regular personal relations and direct contact with both parents. The wording of Article 10 para. 2 CRC must however not be misunderstood as necessarily implying that both parents must reside in different countries, i.e. the child in one country, one parent in a second and the other parent in a third State. Instead, Article 10 para. 2 CRC applies especially in cases where the child is a resident with one parent in one State and the other parent has his or her habitual residence in one other State.60 The origin of Article 10 para. 2 CRC lies in concerns expressed by delegates during the drafting of the CRC regarding children who are geographically separated from one or more parents as a result of divorce and the desire to provide a mechanism to ensure that these children can maintain links with both parents.61 13 The right to maintain personal relations and direct contact with both parents as guaranteed in Article 10 para. 2, sentence 1 CRC is similar but not identical to that provided in Article 9 para. 3 CRC.62 Differences arise in relation to the limitations of this right. According to Article 9 para. 3 CRC, restrictions of personal contact between the child and his or her parents are permitted only for the well-being and the best interests of the child,63 whereas according to Article 10 para. 2, sentence 1 CRC such restrictions are permitted in further exceptional circumstances. The reason for this semantic divergence cannot be clarified by reference to the Convention text or its drafting.64 Nor can explanations as to how the wording of Article 10 para. 2 CRC is to be understood or what circumstances are considered as “extraordinary” be extracted from the legal practice of the CRC Committee. For systematic and teleological reasons under the international human rights protection scheme, it is certainly logical that “exceptional circumstances” in Article 10 para. 2, sentence 1 CRC are to be restrictively interpreted. In any case, the exceptional circumstances that may limit the contact between child and parent should be clearly described in the law and not be left to the discretion of the competent authorities.65 14 In order to allow regular contact between parents and children who live in different States, States Parties must, pursuant to Article 10 para. 2, sentence 2 CRC, guarantee the right of both the child and the parents to leave any State, including their own, and to (re-)enter their own country. The rights contained in Article 10 para. 2, sentence 2 and sentence 3 CRC apply to both children and their parents.66 They are, in principle, modelled on Article 12 ICCPR.67 The right to enter the parent’s or child’s own country is, however, unqualified in terms of Article 10 para. 2, sentence 2 CRC. It entitles a person 60 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 196. 61 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 218 et seq. 62 Similarly, JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 359 et seq. 63 See → Article 9 mn. 12. 64 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 196. 65 See JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 361, with reference to CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 87. 66 JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 361. 67 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 10.05.

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to come to one’s own country for the first time and to return to one’s own country.68 In contrast to Article 12 para. 4 ICCPR, which limits the right to entry with the word “arbitrarily”,69 there is no explicit restriction on the right to enter one’s own country under Article 10 para. 2 CRC. The prospect of a child being exiled from his or her home country because of a crime he or she may have committed is entirely antithetical with the purpose of the CRC and other human rights instruments.70 However, a general right to enter in a third State is not guaranteed by Article 10 para. 2, sentence 2 CRC. 71 In contrast, the right to leave any country, including a parent’s or child’s own county, 15 shall, according to Article 10 para. 2, sentence 2 and sentence 3 CRC, be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order, public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the CRC. With regard to the right to leave any country, the Human Rights Committee has made it clear that the freedom to leave the territory of a State according to Article 12 para. 2 ICCPR may not be made dependent on any specific purpose or on the period of time the individual chooses to stay out of the country.72 This implies the negative obligation on the State of residence not to impede departure, and a positive obligation on the State of nationality to issue all necessary travel documentation.73 A similar interpretation has been adopted by the CRC Committee, which has expressed concern about the requirement that only a child’s father or paternal grandfather but not the mother or the maternal grandmother of the child may give permission for the issuance of a passport for a child under 18 years.74 The right to leave any country, as formulated in Article 10 para. 2, sentence 3 16 CRC, is not absolute but qualified by a set of tightly circumscribed restrictions.75 Only regulations prescribed by law and intending to protect national security, public morality or the rights and freedoms of others, which are necessary and consistent with the other guarantees of the CRC, can restrict emigration lawfully. Because of the explicit requirement of compatibility with other Convention rights, the application of Article 10 para. 2, sentence 3 CRC also involves a balancing by means of a proportionality test and with regard to the non-discrimination principle in Article 2 CRC.76 Not only the list in Article 10 para. 2, sentence 3 CRC, which is exhaustive,77 but also the tests of necessity, proportionality and consistency with all guiding principles of the CRC makes clear that any restriction of the right to leave any country must be interpreted restrictively. 78 68 See Commission on Human Rights, Report of the Working Group, E/CN.4/1986/39, 1986, paras 24, 30; E/CN.4/1987/25, 1987, para. 17. 69 For a fuller account on the possibilities of restriction, in particular with regard to lawful exile, see M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 12 mn. 60. 70 Rightly so, JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 364. 71 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 186. 72 Human Rights Committee, General Comment No. 27: Article 12 (Freedom of Movement), CCPR/C/21/Rev.1/Add.9, 2 November 1999, para. 8. 73 Human Rights Committee, General Comment No. 27: Article 12 (Freedom of Movement), CCPR/C/21/Rev.1/Add.9, 2 November 1999, para. 9. 74 CRC Committee, Concluding Observations: Iran, CRC/C/15/Add.254, 2005, para. 24. 75 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 196; JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 365. 76 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 197. 77 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 33. 78 For a fuller account see JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 365 et seq.

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Indeed, it is difficult to imagine a situation where a restriction placed on a child’s right to leave his or her country could satisfy these high thresholds. At least, a State carries the burden of demonstrating that the threshold criteria are met.79

III. Embedding of Article 10 CRC into the System of International Human Rights Protection Besides Article 25 para. 2 ACRWC which includes the right to respect for family life also in migration issues, in other human rights conventions family reunification is often not expressly mentioned nor is it encased in a separate provision.80 A specific rule can be found, however, at the European level in Article 19 para. 6 of the European Social Charter (ESC)81 which requires States Parties to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the State’s territory. In contrast to Article 10 CRC, Article 19 para. 6 ESC refers specifically to families of migrant workers. Also, Directive 2003/86/EC of 22 September 2003 on the right to family reunification82 has the objective of regulating the exercise of the right to family reunification by third-country nationals, who are legally resident within a territory of an EU Member State. The right to family reunification also applies to underage asylum seekers. According to the CJEU, a minor under the premises of the Directive 2003/86/EC is a third-country national or stateless person who is below the age of 18 years at the moment of his or her entry into the territory of a Member State and of the introduction of his or her asylum application in that State. As regards the right to family reunification, it is irrelevant that the person attains the legal age of majority in the course of the asylum procedure and is thereafter granted refugee status.83 The reason for the extensive interpretation of Directive 2003/86/EC, that the CJEU represents, is that applications for international protection from unaccompanied minors have to take account of their particular vulnerability and their best interests.84 This jurisprudence, of course, creates the situation that family reunification can also take place to an adult, even though the reason for family reunification, namely the need for care and custody of a child, has disappeared during the proceedings. 18 The EU Citizenship Directive 2004/38/EC85 refers specifically to the CRC and gives children special protection. Nevertheless, EU citizenship does not imply an unconditional right of residence for EU citizens in other Member States; rather, it is still subject to a public policy reservation.86 For example, the expulsion of Union citizens who have been proven to be perpetrators of child abuse is eligible even if they have been legally resident for more than 10 years.87 Conversely, however, according to recent rulings of the CJEU, even those third-country nationals illegally resident in a Member State of the Union (i.e. after an unsuccessful asylum application) have a right of residence if their 17

79 JM Pobjoy/J Tobin, Article 10, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 343, at 367. 80 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 185-188. 81 ETS No. 035, as revised by ETS No. 163. 82 OJ EU 2003, No. L 521, p. 12. 83 CJEU, Judgment of 12 April 2018, C-550/16, ECLI:EU:C:2018:248, paras 55 et seq. – A, S. 84 CJEU, Judgment of 12 April 2018, Case C-550/16, ECLI:EU:C:2018:248, para. 58 – A, S. 85 OJ EU 2004, No. L 158, p. 77, amended in OJ EU 2004, No. L 229, p. 35. 86 CJEU, Judgment of 23 November 2010, Case C-145/09, ECLI:EU:C:2010:708, paras 40 et seq. – Tsakouridis. On the loss of Union citizenship for reasons of general interest see further CJEU, Judgment of 12 March 2019, Case C-221/17, ECLI:EU:C:2019:189, paras 39 et seq. – Tjebbes. 87 CJEU, Judgment of 22 May 2012, Case C-348/09, ECLI:EU:C:2012:300, para. 28 – P.I.

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children, for whom they are responsible to care and educate, have legal EU citizenship.88 Otherwise, EU citizens would be denied the actual enjoyment of the substance of the rights conferred on them in Article 20 and Article 21 para. 1 TFEU. This is because a refusal of residence for the parents would have the consequence that the child, as an EU citizen, would be forced to leave the territory of the EU in order to accompany his or her parents or primary caregivers.89 Even in cases where a third-country national, who is the primary carer of a young child being an EU citizen, shall be expelled from the territory of a Member State for having been convicted of a criminal offence of a certain gravity, account has to be taken of the child’s best interests. Particular attention must be paid to the child’s age, his or her situation in the Member State and the extent to which he or she is dependent on the parent.90 In sum, it can be deduced from the case-law of the CJEU that primary caregivers’ residence rights derive from the child’s human right to education and upbringing as an EU citizen.91 On the universal level, the issue of family reunification is addressed merely indirect- 19 ly. The ICCPR does not mention family reunification explicitly, but instead regulates certain aspects of this issue. In this way, Article 12 ICCPR affords a general right of every person to leave any country, including one’s own (Article 12 para. 2 ICCPR), and enter one’s own country (Article 12 para. 4 ICCPR). Thereby, Article 12 ICCPR stipulates a more encompassing standard than Article 10 para. 1 and para. 2 CRC which limits the exercise of entry and exit rights to the exclusive purpose of family reunification. 92 The family as such is protected by Article 23 ICCPR; this provision also covers the right of a family to live together.93 To make this possible, the States Parties must take appropriate measures, both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or reunification of families, particularly in cases where their members are separated for political, economic or similar reasons, and to ensure that coexistence of the family is actually guaranteed.94 This applies especially in cases where the family members have been separated on political, economic or similar grounds. Accordingly, the revocation of a passport to prevent departure for the purpose of family reunification, not only contravenes the right to free movement in Article 12 ICCPR, but also violates the rights endowed by Article 17 and Article 23 ICCPR.95 If, in addition, a child is restricted from exercising the right to live with his or her parents, Article 24 para. 1 ICCPR, which requires States Parties to undertake positive measures in favour of CJEU, Judgment of 8 March 2011, Case C-34/09, ECLI:EU:C:2011:124, para. 43 – Ruiz Zambrano. CJEU, Judgment of 8 March 2011, Case C-34/09, ECLI:EU:C:2011:124, para. 44 – Ruiz Zambrano; Judgment of 13 September 2016, Case C-165/14, ECLI:EU:C:2016:675, para. 78 – Rendón Martín. But see also the slightly more restrictive jurisprudence in: CJEU, Judgment of 5 May 2011, Case C-434/09, ECLI:EU:C:2011:277, para. 46 – McCarthy; Judgment of 15 November 2011, Case C-256/11, ECLI:EU:C: 2011:734, paras 66 et seq. – Dereci; Judgment of 8 May 2013, Case C-87/12, ECLI:EU:C:2013:291, paras 34 et seq. – Ymeraga; Judgment of 10 May 2017, Case C-133/15, ECLI:EU:C:2017:354, paras 73 et seq. – Chavez Vilchez. 90 CJEU, Judgment of 13 September 2016, Case C-304/14, ECLI:EU:C:2016:674, paras 48-49 – CS. As regards the child’s best interests see also CJEU, Judgment of 10 May 2017, Case C-133/15, ECLI:EU:C: 2017:354, paras 70-71 – Chavez Vilchez; Judgment of 8 May 2018, Case C-82/16, ECLI:EU:C:2018:308, para. 76 – K.A. and Others. 91 For a fuller account see K Hyltén-Cavallius, Who Cares? Caregivers’ Derived Residence Rights From Children in EU Free Movement Law, Common Market Law Review 57 (2020), p. 399, at 402 et seq. 92 See → Article 10 mn. 5. Further see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 189. 93 Human Rights Committee, General Comment No. 19: Article 23 (The family), HRI/GEN/1/Rev.8, 1990, para. 5. 94 Ibid. 95 Human Rights Committee, El Dernawi v. Libya, Views adopted on 20 July 2007, CCPR/C/90/D/ 1143/2002, paras 6.2, 6.3. 88 89

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the legal status of minors, is also violated.96 An infringement of Article 24 para. 1, para. 2 ICCPR is further present if a State fails to take concrete measures to secure a father’s right to access and personal contact.97 20 Also, the European Convention on Human Rights does not explicitly mention any rule on family reunification. Like Article 10 CRC, the ECHR does not guarantee foreign nationals the right of entry, naturalisation and residence in a given third State.98 However, since the protection of the family is guaranteed in Article 8 ECHR, in order to secure the unity of the family and the welfare of the child, a right to permanent residence and/or to family reunification can be derived from this provision in individual cases.99 This applies in particular in cases of family reunification where the best interests of the child are the primary focus.100 In general, it can be said that the existence of insurmountable obstacles or major impediments to a common family life in the country of origin can give rise to an obligation on the part of the country of residence to enable such family life on its territory.101 Assessing the existence of such an obstacle requires an examination of the circumstances of each particular case, including the age of children, their situation in the country of origin, and their degree of dependence upon their parents.102 As regards the expulsion of juveniles who have been living in their country of residence since their birth or earliest childhood,103 and even in cases where the young person has previously (as a minor) committed a criminal offence, but in spite of this action, still demonstrates close cultural, social and family ties to the country of residence, the ECtHR attaches greater importance to maintaining family life than to security issues.104 Only in cases of serious crimes does the ECtHR hold an expulsion of

96 Human Rights Committee, El Dernawi v. Libya, Views adopted on 20 July 2007, CCPR/C/90/D/ 1143/2002, paras 6.3, 7. 97 Human Rights Committee, Asensi Martinez v. Paraguay, Views adopted on 27 March 2009, CCPR/C/95/D/1407/2005, para. 7.5. 98 Clearly so: ECtHR, Judgment of 28 May 1985, No. 9214/80, paras 67-68 – Abdulaziz, Cabales and Balkandali; Judgment of 3 October 2014, No. 12738/10, para. 100 – Jeunesse v. The Netherlands. See also A Nußberger, Menschenrechtsschutz im Ausländerrecht, Neue Zeitschrift für Verwaltungsrecht 2013, p. 1305, at 1309. 99 At the beginning, the Court was more restrictive, see e.g., ECtHR, Judgment of 19 February 1996, No. 23218/94, para. 39 – Gül v. Switzerland; Judgment of 28 November 1996, No. 21702/93, para. 67 – Ahmut v. The Netherlands. 100 See, e.g., ECtHR, Judgment of 21 June 1988, No. 10730/84, paras 22-29 – Berrehab v. The Netherlands; Judgment of 28 June 2011, No. 55597/09, para. 35 – Nunez v. Norway. See also U Kilkelly, The Best of Two Worlds for Children’s Rights?, Human Rights Quarterly 23 (2001), p. 308; P Czech, Das Recht auf Familienzusammenführung nach Art. 8 EMRK in der Rechtsprechung des EGMR, Europäische Grundrechte Zeitschrift 2017, p. 229, at 237 et seq., both with further references. 101 ECtHR, Judgment of 21 December 2001, No. 31465/96, para. 40 – Sen v. The Netherlands; Judgment of 1 December 2005, No. 60665/00, para. 47 – Tuquabo-Tekle v. The Netherlands; Judgment of 28 June 2011, No. 55597/09, para. 70 – Nunez v. Norway. For more detail see P Czech, Das Recht auf Familienzusammenführung nach Art. 8 EMRK in der Rechtsprechung des EGMR, Europäische Grundrechte Zeitschrift 2017, p. 229, at 232 et seq. 102 ECtHR, Judgment of 21 December 2001, No. 31465/96, para. 37 – Sen v. The Netherlands. Further see V Chetail, International Migration Law, 2019, p. 126. 103 See, e.g., ECtHR, Judgment of 1 December 2005, No. 60665/00, para. 44 – Tuquabo-Tekle v. The Netherlands; Judgment of 3 October 2014, No. 12738/10, paras 100 et seq. – Jeunesse v. The Netherlands. For more detail see C Grabenwarter/K Pabel, Europäische Menschenrechtskonvention, 6 th edn. 2016, § 22 mns. 75 et seq. 104 ECtHR, Judgment of 2 November 2001, No. 54273/00, paras 46 et seq. – Boultif v. Switzerland; Judgment of 18 October 2006, No. 46410/99, paras 57 et seq. – Üner v. The Netherlands; Judgment of 23 June 2008, No. 1638/03, paras 81 et seq. – Maslov v. Austria; Judgment of 14 June 2011, Nr. 38058/09, para. 65 – Osman v. Denmark.

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adolescents and the ensuing discontinuation of family life as compliant with Article 8 ECHR.105 Article 7 of the EU Charter of Fundamental Rights, which guarantees respect for pri- 21 vate and family life, read in conjunction with the requirements enshrined in Article 24 para. 3 of the EU Charter of Fundamental Rights, is also to be understood as providing the child a right to maintain regular personal relations with both parents.106 This also applies to non-marital children and children of divorced parents.107 However, neither Article 7 nor Article 24 para. 3 of the EU Charter of Fundamental Rights excludes the expulsion of a parent on serious grounds of public security and order. They require merely that the competent authorities give sufficient weight to the best interests of the child when exercising discretion. Similarly, the ECtHR considers an expulsion of a father of minor children, who has committed low-crime offences but can demonstrate close family ties and has a ten-year residence, as being contrary to Article 8 ECHR. 108 On the other hand, in the case of crimes that exceed a certain threshold of severity and quantity (e.g., dangerous bodily harm, manslaughter), the risk to public safety outweighs the right to family life.109 This applies even in cases where the child was only 13 years old at the time of the expulsion decision.110 Finally, the objective of efficient management of migration flows does not constitute, under the Association Agreement between the EU and Turkey, a proportionate reason in the public interest capable of justifying a national measure requiring nationals of third countries under the age of 16 years to hold a residence permit in order to enter and reside in a Member State of the European Union.111

Article 11 [International Child Abduction] 1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

105 ECtHR, Judgment of 18 October 2006, No. 46410/99, paras 55 et seq. – Üner v. The Netherlands; Judgment of 23 June 2008, No. 1638/03, para. 85 – Maslov v. Austria. For a fuller account see S Schmahl, Report on Child-Friendly Justice: Existing International and European Standards, in: Council of Europe, Directorate General of Human Rights and Legal Affairs (ed.), Compilation of texts related to child-friendly justice, 2009, p. 20, at 27; J Arnold/M Rehmet, Der Schutz junger Menschen durch den Europäischen Gerichtshof für Menschenrechte, Recht der Jugend und des Bildungswesens 2018, p. 401, at 411 et seq. 106 CJEU, Judgment of 27 June 2006, Case C-540/03, ECLI:EU:C:2006:429, para. 31 – Family Reunification. Further see A-M Böhringer, Schutz des Kindes und Jugendlicher, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 45 mn. 18. 107 N Bernsdorff, in: J Meyer (ed.), Charta der Grundrechte der EU, Kommentar, 5 th edn. 2019, Article 7 mn. 20. 108 ECtHR, Judgment of 8 July 2014, No. 3910/13, paras 54 et seq. – M.P.E.V v. Switzerland. See also ECtHR, Judgment of 2 April 2015, No. 27945/10, paras 64 et seq. – Sarközi and Mahran v. Austria. 109 ECtHR, Judgment of 2 April 2015, No. 27945/10, paras 68 et seq. – Sarközi and Mahran v. Austria. 110 See ECtHR, Judgment of 23 April 2015, No. 38030/12, paras 43 et seq. – Khan v. Germany. 111 CJEU, Judgment of 29 March 2017, Case C-652/15, ECLI:EU:C:2017:239, paras 35 et seq. – Tekdemir.

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[International Child Abduction] I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. State Obligation to Combat Child Abduction (Article 11 para. 1 CRC) . . . . . . III. Promotion of International Conventions (Article 11 para. 2 CRC) . . . . . . . . . . . 1. 1980 Hague Child Abduction Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. 1980 European Custody Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Brussels II-a and Brussels II-b Regulations and 1996 Hague Convention on the Protection of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Corresponding Case-Law of the European Court of Human Rights . . . . . . . . .

1 4 7 10 13 17 22

I. Generalities 1

Due to the constantly rising number of marriages, civil unions, separations and divorces between persons of different nationalities on the one hand and the increasing means of easily available international transport systems and growing globalisation processes on the other hand, the number of cases where cross-border family disputes arise and where children are (forcefully) taken abroad by one parent and denied return are becoming more and more topical.1 The abducting parent (approximately 70 per cent of the kidnappings are carried out by mothers)2 usually does not wait for a decision of the court on custody in the home country, but rather seeks sole custody in the State of refuge or destination.3 The emotional reasons for such child abductions are diverse; accordingly hate, love, fear or jealousy may play a role.4 International child abduction has serious ramifications for children and parents alike. Nevertheless, for the affected child, abduction is defined through a sudden move and uproot of his or her family environment and a complete change in living environment (friends, relatives, school, etc.), which regularly lead to traumatic experiences.5 Parental disputes almost always disturb a child, but in cross-border family conflicts, it may become even more traumatic for the child especially if the situation is aggravated by forceful separation of the child from one parent. Child abduction may cause severe harm and psychological trauma to the child involved, which may influence the child’s entire future life.6 Nevertheless, there are no uniform preventive measures or sanctions at the international level, but merely a few multilateral agreements, which still fall short of having a global effect.7 In many cases where children are brought to a State that is not party to any international agreement, there is a high probability that the abduction will be permanently successful.8 In addition, judicial practice compounds the problem when judges ignore the custody 1 See N Lowe, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 73, at 74; P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 2. 2 See P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 3; and N Lowe/V Stephens, A Statistical Analysis of Applications Made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Global Report, 2018, p. 12-13. 3 A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 3, mn. 3; P Beaumont/P McEleavy, The Hague Convention on International Child Abduction, 1999, p. 1. 4 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 90; P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 1. 5 N Lowe, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 73 et seq.; M Freeman, International Child Abduction, 2006, p. 46. 6 O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 178; T Buck, International Child Law, 2014, p. 274 et seq. 7 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 90. For more detail see → Article 11 mns. 7 et seq. 8 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 90.

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decisions of foreign courts and re-evaluate the merits of custody cases.9 This fact can encourage parental child abduction, with abducting parents engaging in forum shopping to find more favourable judicial treatment abroad.10 It is therefore of particular value that a provision on child abduction was added to 2 the Convention through Article 11 CRC which is concerned with the illicit transfer and non-return of children abroad. Article 11 CRC is supplementary to Article 10 CRC as both provisions aim to support family reunification in cross-border situations for the benefit of the child.11 Furthermore, Article 11 para. 1 CRC includes a substantive addition to Article 16 CRC, which protects the child’s private and the family life against direct interferences by public authorities as well as against interferences of private actors for which the State remains responsible in terms of having the responsibility to take the necessary measures to ensure the child’s private and family life.12 Article 11 para. 1 CRC, which explicitly addresses the duty of States to combat child abduction in cross-border situations undertaken by private individuals, describes one of the possible positive obligations of the States Parties within the meaning of Article 16 para. 2 CRC. 13 In addition, Article 11 para. 2 CRC also concretises and furthers Article 4 CRC, since it especially supports international cooperation in child abduction cases in order to effectively implement the Convention.14 A disadvantage lies however in the fact that the possibility of guaranteeing a specific 3 right of children against parental abduction or similar substantive requirements was not realised by Article 11 CRC.15 As it fails to introduce substantive rules, Article 11 para. 2 CRC recognises only the need for international cooperation in cases of international child abduction.16 Therefore, Article 11 CRC does not serve to fully offset the weaknesses already existing in international treaties.17 The CRC Committee’s lack of engagement with Article 11 CRC and the complex issues which it raises particularly in view of the international treaties on the matter exemplifies further the peripheral status in practice.18 However, at least, Article 27 para. 4 CRC is more concrete in stating that the States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents, both within the State Party and from abroad.19

II. State Obligation to Combat Child Abduction (Article 11 para. 1 CRC) According to Article 11 para. 1 CRC, States Parties shall take measures to combat 4 any illicit transfer and non-return of children abroad. Although the wording of Article 11 para. 1 CRC would capture abductions committed by a third person different to the 9 M Kirby, Children Caught in Conflict – The Child Abduction Convention and Australia, International Journal of Law, Policy and the Family 24 (2010), p. 95, at 100. 10 See C LeGette, International Child Abduction and the Hague Convention: Emerging Practice and Interpretation of the Discretionary Exception, Texas International Law Journal 25 (1990), p. 287, at 293. 11 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 251; R Zürcher, Kindesentführung und Kindesrechte, 2005, p. 56. 12 See → Article 16 mn. 12. 13 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 165. 14 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 252. 15 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 251. 16 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 252. 17 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 93. 18 See also J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 394 et seq. 19 For more detail see → Article 27 mns. 11 et seq.

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child’s parents,20 this is not the rationale of the norm. The drafting history of the CRC21 and the lex specialis principle dictate that this type of non-parental abduction is only dealt with under Article 35 CRC.22 Moreover, Article 11 CRC is distinct from Article 35 CRC in three significant respects. First, it is only concerned with international, crossborder abduction. Second, its primary focus is intended to be parental inter-country abduction.23 Third, unlike child trafficking under Article 35 CRC, the abduction of the child in terms of Article 11 CRC does not follow primarily financial or exploiting purposes, but is rather the consequence of mainly emotional motives.24 Article 11 CRC may thus be considered as a provision in the area of family life, with implications between human rights law and private international law.25 5 The obligation to combat child abduction under Article 11 CRC requires States Parties to take all appropriate preventive measures in light of their available resources to prevent the practice.26 It further demands that States Parties take appropriate restorative or rehabilitative measures for children in those circumstances where an illicit transfer has taken place.27 It would, in fact, be inconsistent simply to oblige the States Parties to take measures to stop the practice of international child abduction from occurring but not address the consequences of abduction by adopting measures that enable the return of the child where appropriate and providing rehabilitative measures to address any harm experienced by the child.28 States Parties have, of course, a significant degree of discretion in determining what measures are appropriate. In view of Article 4 CRC, the measures adopted must, however, be consistent with the other rights under the Convention and they must be effective in contributing to the aim of Article 11 CRC. 6 The CRC Committee has expressed concern at the insufficient guarantees of States Parties to guard against the illicit transfer and non-return of children.29 It recommends that maximum assistance be provided through proactive measures, particularly through diplomatic and consular channels, to resolve disputes pertaining to international parental child abduction.30 The CRC Committee further calls on States Parties to ensure proper and expeditious implementation of judicial decisions made with regard to custody and visiting rights and strengthen dialogue and consultation with relevant countries.31 Professionals dealing with international child abduction should receive ad20 21

433.

See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 90. See OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 426 et seq.,

22 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 203; C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 253. Different assessment by J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 374. 23 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 203. 24 P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 1. 25 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 11.01 and 11.05. 26 See OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 434. 27 J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 372, 375. 28 J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 375. 29 CRC Committee, Concluding Observations: Russian Federation, CRC/C/15/Add.110, 1999, para. 43; Fiji, CRC/C/15/Add.89, 1998, para. 18. 30 CRC Committee, Concluding Observations: Austria, CRC/C/15/Add.98, 1999, para. 19; Germany, CRC/C/15/Add.226, 2004, para. 39; Croatia, CRC/C/15/Add.243, 2004, para. 46; Canada, CRC/C/15/ Add.215, 2003, para. 29. 31 CRC Committee, Concluding Observations: Algeria, CRC/C/DZA/CO/3-4, 2012, para. 51.

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equate and ongoing training.32 This also implies that border controls are staffed by individuals trained to be cognisant of child abduction.33 In addition, domestic legislation should ensure that international child abduction is expressly prohibited and that the perpetrators receive appropriate penalties (criminal sanctions should be avoided), regardless of their relationship to the child.34

III. Promotion of International Conventions (Article 11 para. 2 CRC) In order to implement the obligation to combat child abduction contained in Article 7 11 para. 1 CRC, States Parties shall promote, pursuant to Article 11 para. 2 CRC, the conclusion of bilateral or multilateral agreements or accession to existing agreements in this field. An obligation to conclude or accede to certain agreements can, however, not be held to flow from the wording of Article 11 para. 2 CRC.35 Any obligation of result would be inappropriate due to the fact that the realisation of such an objective is contingent on the actions of other States.36 States from the Middle East, Africa and Asia are especially reluctant in that regard.37 Therefore, Article 11 para. 2 CRC represents an obligation of conduct rather than an obligation of result. Nevertheless, as a minimum, States Parties must demonstrate that they have taken steps in good faith to promote the conclusion of such agreements with other States.38 In fact, Article 11 para. 2 CRC has resulted in an overall increased participation of States in the relevant bilateral or multilateral instruments.39 During the drafting of the CRC, the 1980 Hague Convention on the Civil Aspects 8 of International Child Abduction (Hague Child Abduction Convention)40 and the 1980 European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (European Custody Convention)41 were especially considered as existing agreements in terms of Article 11 para. 2 CRC.42 Both conventions are designed to protect children from illegal abductions abroad and the unlawful failure to return in that they stipulate processes to facilitate the rapid return of the child to the remaining parent.43 However, the child is under CRC Committee, Concluding Observations: Croatia, CRC/C/15/Add.243, 2004, para. 46. For a fuller account, also with regard to the guidelines issued by the Hague Conference on Private International Law, see J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 377 et seq. 34 CRC Committee, Concluding Observations: Egypt, CRC/C/EGY/CO/3-4, 2011, para. 56. As to the problematic implications of criminal sanctions see → Article 11 mn. 8. 35 I Baer, Verabschiedung des UN-Übereinkommens über die Rechte des Kindes im November 1989 in New York, Familie und Recht 1990, p. 192, at 194. 36 Rightly so, J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 380. 37 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 93; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 11.04. 38 J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 373, 380. 39 P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 5. 40 1343 UNTS 98. 41 ETS No. 105. 42 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 207; O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 178. 43 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 208; N Lowe, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 73, at 77. 32

33

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no circumstances to be permanently removed from the abducting parent. Instead, a situation should be created in which the child can, as far as possible, maintain regular contact with both parents living in different States.44 Administrative or criminal sanctions are the purpose neither of Article 11 CRC nor of the existing conventions on international child abduction.45 First, the deterrent effect of criminal sanctions may be minimal. Second, a criminalisation of the abductor would serve only to worsen an already precarious situation for all persons involved. The threat of criminal prosecution could encourage courts to refuse return of a child and would make amicable solutions more difficult to achieve. All in all, a criminal prosecution is a blunt instrument to compel the return of the child.46 Therefore, an obligation to criminalise the abducting parent is not foreseen in international law.47 9 Against this background, both the Hague Child Abduction Convention and the European Custody Convention rather offer the possibility of administrative assistance and the expeditious administrative and judicial recognition of custodial decisions in cases of international child abduction.48 The abandoned custodial parent is entitled to petition the authorities. In addition to the abandoned parent, it is of course the child who is affected. However, during the abduction the child is regularly unlikely to be in a position to initiate legal action.49 In order to ensure that the proceedings provided in both conventions may be effectively implemented, Article 6 of the Hague Child Abduction Convention and Article 2 of the European Custody Convention require the existence of a central authority in each Member State which is responsible for all cases of child abduction. It is noteworthy that both the Hague Child Abduction Convention (see Article 4) and the European Custody Convention (see Article 1 lit. a) are only applicable to children under 16 years of age, who pursuant to national law cannot yet themselves determine their place of residency. However, the Contracting States remain free to declare the provisions of the conventions as applicable to children between the age of 16 and 18 years under their domestic laws.50 Article 1 CRC which defines a child as any person under the age of 18, and Article 41 CRC which establishes a “favourability clause” clearly reinforce this objective.

1. 1980 Hague Child Abduction Convention 10

The CRC Committee has repeatedly urged States Parties to ratify the Hague Child Abduction Convention.51 Such recommendations should not be understood to mean that the CRC Committee has a preference for the Hague Convention than for the equivalent regional treaties. But the Hague Convention is of universal nature and the scope of application of the Hague Child Abduction Convention is wider than that

44 P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 3. 45 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 91; W Vandenhole/ GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 11.05. 46 D Chaikin, International Extradition and Parental Child Abduction, Bond Law Review 5 (1993), p. 129, at 150. 47 A Dyer, Childhood's Rights in Private International Law, Australian Journal of Family Law, 1991, p. 103 et seq. 48 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 252. 49 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 90. 50 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 91. 51 See, e.g., CRC Committee, Concluding Observations: Algeria, CRC/C/DZA/CO/3-4, 2012, para. 751; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 56; Namibia, CRC/C/15/Add.14, 1994, para. 10; Belarus, CRC/C/15/Add.17, 1994, para. 13.

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of the European Custody Convention.52 According to Article 1 of the Hague Child Abduction Convention, the objective of the Convention is to ensure the immediate return of a wrongfully removed or retained child to his or her State of origin and also to guarantee that custody and access rights existing in one State are respected in other States. Accordingly, the Hague Child Abduction Convention substantively covers both the illicit transfer of children abroad as well as the denial of rights of access to the child. Pursuant to Article 3 of the Hague Child Abduction Convention, an unlawful removal is present when the legitimate and exercised custody rights of the parent in the State where the child was habitually resident before the removal are infringed. The abandoned parent can either claim the return of the child or the effective implementation of his or her rights of access to the child pursuant to Articles 8 et seq. of the Hague Child Abduction Convention.53 Thus, on the one hand the rights and interests of the abandoned parent are taken into account. On the other hand, the immediate return of the child in connection with the restoration of the status quo ante serves to re-establish, as quickly as possible, the child’s best interests in having regular contact with both parents.54 Finally, the immediate return of the child should lead to the custody rights granted in one State being respected in another State.55 Article 6 and Article 7 of the Hague Child Abduction Convention promote transna- 11 tional cooperation between the competent administrative and judicial authorities of the Contracting States.56 The substantive contents of this cooperation are regulated in Articles 1, 2, 12, 13, 16, 19 and 20 of the Convention.57 Article 1 lit. a determines the return of a child taken illicitly into another State Party. In this regard, the Contracting States are obliged to provide the quickest available procedure for all decisions required to be made by the Hague Child Abduction Convention (Article 2, sentence 2). Court decisions are to be taken within six weeks of receipt of the application (Article 11 para. 2). To ensure a quick return, Article 16 of the Hague Child Abduction Convention additionally provides that States, to which the child has been unlawfully removed, are precluded from making any substantive decision on custody, as long as the decision to return the child is still pending. This rule aims at preventing lengthy conflicts between the States concerned, i.e. between the original country of residence and the current relocation State.58 Under Article 19 of the Hague Child Abduction Convention, the decision taken by the competent authorities to return the child is not to be considered as a custody decision.59 The longer the stay of a child in the relocation State, the greater the actual probability that the child has developed social ties there, and that a return of the child to his or her country of origin would lead to a renewed uprooting.60 Therefore, if the child stays longer and becomes fully integrated into the social environment of the relocation State, a re-transfer 52 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 91; J Tobin/N Lowe/ E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 382. See also → Article 11 mns. 13 et seq. 53 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 91. 54 R Zürcher, Kindesentführung und Kindesrechte, 2005, p. 57. 55 W Vomberg/K Nehls, Rechtsfragen der internationalen Kindesentführung, 2002, p. 1. 56 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 210. 57 For more detail see J Rieck, Kindesentführung und die Konkurrenz zwischen dem HKÜ und der EheEuGVVO 2003 (Brüssel IIa), Neue Juristische Wochenschrift 2008, p. 182-185. 58 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 91. 59 In this regard see also ECtHR, Judgment of 21 May 2019, No. 49450/17, para. 40 – O.C.I. and Others v. Romania. Further see J Pasche, Anmerkung zu EGMR: No. 49450/17, Zeitschrift für das gesamte Familienrecht 2019, p. 1241. 60 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 91; R Zürcher, Kindesentführung und Kindesrechte, 2005, p. 66 et seq.

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may also be excluded, even if it is contrary to the will of the parent whose custody rights have been injured.61 However, if less than a year has passed between the abduction and the decision, in principle, the competent court is held to order a return of the child (Article 12 of the Hague Child Abduction Convention). Within this time period, it is assumed that neither a cessation of the child from his or her familiar surroundings in the country of origin nor a solidification of social circumstances in the relocation State has occurred.62 12 The presumption in favour of the child’s return may be rebutted in certain circumstances. Exceptions to the return of the child can be found in Articles 13 and 20 of the Hague Child Abduction Convention. In this regard, Article 13 para. 1 lit. b stipulates that, within a time period of one year following the abduction, the return of the child may be denied when a severe danger of physical or psychological harm to the child is present.63 This is the case, for instance, if the remaining/abandoned parent has regularly used, and is supposed to continue using, severe physical force to discipline the child.64 Furthermore, a return of the child can conflict with certain fundamental principles of the relocation State, which is underlined by the public policy clause enshrined in Article 20 of the Hague Child Abduction Convention. Fundamentally, the rules laid down in Articles 13 and 20 are exceptional provisions, which have to be interpreted restrictively.65 Notwithstanding these provisions, the Hague Child Abduction Convention ascribes importance to the will and the best interests of the child.66 According to Article 13 para. 2, the child has to be given the opportunity to oppose a return to the country of origin if he or she is held to be of sufficient age and maturity to make this decision; a return may be refused on the basis of this expression of will.

2. 1980 European Custody Convention 13

The 1980 European Custody Convention also seeks to ensure the prompt return of an abducted child. From the perspective of child protection, the European Custody Convention which governs the recognition and enforcement of judicial or administrative decisions relating to custody in Europe – insofar as the EU Brussels II-a Regulation or the Brussels II-b Regulation does not take precedence for EU Member States 67 – is, however, less satisfactory than the 1980 Hague Child Abduction Convention. This is because the European Custody Convention is concerned primarily with the recognition

See Higher Regional Court Bremen, Judgment of 22 December 2015, 4 UF 183/15, para. 10. See A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 35, mn. 85. 63 For a fuller account on the grounds for refusal to return see A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 44 et seq.; P Beaumont/P McEleavy, The Hague Convention on International Child Abduction, 1999, p. 30. See also ECtHR, Judgment of 5 February 2015, No. 66775/11, paras 48 et seq. – Phostira Efthymiou and Ribeiro Fernandes v. Portugal; Judgment of 21 May 2019, No. 49450/17, paras 34 et seq. – O.C.I. and Others v. Romania. 64 ECtHR, Judgment of 21 May 2019, No. 49450/17, paras 41 et seq. – O.C.I. and Others v. Romania. 65 See M Jorzik, Das neue zivilrechtliche Kindesentführungsrecht, 1995, p. 42 et seq.; A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 62, mn. 144, 150; P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 12. 66 M Jorzik, Das neue zivilrechtliche Kindesentführungsrecht, 1995, p. 45; A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 58, mn. 143. 67 See → Article 11 mns. 17 et seq. 61

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and enforcement of custody orders and decisions relating to parental visitation rights. 68 Furthermore, the European Custody Convention contains a number of reservations (see Articles 17 et seq.), which in practice have resulted in significant weaknesses of its substantive content.69 The provisions of the European Custody Convention ensure that the custody and ac- 14 cess rights of the abandoned parent are strengthened, that expedient, unbureaucratic support is provided in the search for the whereabouts of the child and that the restoration of the custodial relationship is executed by the competent authorities.70 In that regard, the European Custody Convention covers various types of child abduction, which are in turn assigned different procedures. A significant type of abduction is regulated in Article 8 para. 1.71 Accordingly, the reestablishment of the custodial relationship must be promptly effected by an authority of the relocating State, if a child, pursuant to Article 1 of the Convention, was unlawfully removed abroad and if the parents and the child at the time of the custody decision or at the time of the unlawful removal, if the latter came earlier, held only the nationality of the State in which the custody decision was made. Further requirements of Article 8 para. 1 of the European Custody Convention are that the child was habitually resident in the State of the parents and that the request to restore the custodial relationship was made within six months after the unlawful removal. Especially regarding the requirement that the child and both parents have the same nationality, Article 8 para. 1 lit. a of the Convention connects the prompt return of the child to obstacles that are difficult to overcome in practice.72 It is questionable, particularly in cases of international child abduction, whether all affected persons indeed share the same nationality.73 A review of relevant cases shows rather that a significant proportion of removals and retentions relate to families, in which the individuals have different nationalities.74 Similar to the Hague Child Abduction Convention, the European Custody Conven- 15 tion regulates different cases in which the recognition and restoration of custody relations can be refused. Such a refusal is possible when a decision is incompatible with a custody decision enforced in the requested State before the removal of the child has taken place (Article 9 para. 1 of the European Custody Convention). A refusal is also admissible if the effect of the decision is incompatible with the fundamental principles of family and child law of the requested State (Article 10 para. 1 lit. a), or if the original decision is no longer compatible with the child’s best interests on the basis of an actual change of circumstances (Article 10 para. 1 lit. b). Generally, Articles 9 and 10 of the European Custody Convention are not only accountable for respecting and maintaining State sovereignty, but in particular for child-related circumstances that the child can be integrated into the new social environment.75 Upon application to the court, if six months have elapsed since the improper removal to another State, a restoration of cus68 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 92; T Buck, International Child Law, 2014, p. 218. 69 See A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 96, mn. 222. 70 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 208. 71 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 208. 72 M Jorzik, Das neue zivilrechtliche Kindesentführungsrecht, 1995, p. 77. 73 P Beaumont/P McEleavy, The Hague Convention on International Child Abduction, 1999, p. 223. 74 See R Hegar/G Greif, Parental abduction of children from interracial and cross-cultural marriages, Journal of Comparative Family Studies 25 (1994), p. 135-142. 75 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 209.

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tody or access rights is only possible under even stricter conditions.76 Article 15 para. 1 lit. a of the Convention endows the child the right to be consulted in view of changed social conditions. However, in practice, there is apparently often no particular importance given to this commitment.77 The failure to take account of the opinions of the child is contrary to the child’s best interests under Article 3 and Article 12 CRC. 78 The hearing of the child serves not only to clarify the facts of the case, but also ensures due process rights and thus the perception of the child as being a subject of the procedure. 79 The child’s right to express his or her views does not mean, of course, that the child’s opinion should automatically be given overriding precedence over other interests at stake.80 16 The European Custody Convention also promotes expeditious court decisions, although the courts are not bound to a strict six-week period as is stipulated in Article 11 para. 2 of the Hague Child Abduction Convention.81 The expedient and expeditious nature of proceedings is nonetheless emphasised expressly in many provisions of the European Custody Convention (see, e.g., Article 3 para. 1, sentence 2, Article 4 para. 5, Article 5 para. 1 and Article 14).82 Additionally, the Convention incorporates the relevant case-law of the ECtHR with regard to Article 8 ECHR. Especially in regard to transnational child abduction, the ECtHR assumes a positive obligation of the Contracting States to make available procedural possibilities for the abandoned parent to effect the return of their child.83 Of utmost importance here is that the national authorities apply their fastest possible procedure for a return of the child.84 On the other hand, the Court also takes the grounds for an exception to the principle of returning children to the place of their habitual residence seriously, in particular when the child risks being re-abused by the abandoned parent.85 In addition, the ECtHR regularly reiterates that the Convention must be applied in accordance with the principles of the 1980 Hague Convention and the CRC which both attach paramount importance to the best interests of the child in the area of international child abduction.86

H-P Mansel, Neues internationales Sorgerecht, Neue Juristische Wochenschrift 1990, p. 2176, at 2178. See A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 98, mn. 225. 78 Rightly so, P Beaumont/P McEleavy, The Hague Convention on International Child Abduction, 1999, p. 223. 79 K Schweppe, Die Beteiligung des Kindes am Rückführungsverfahren nach dem HKÜ, Familie-Partnerschaft-Recht 2001, p. 203, at 204. 80 See, for instance, High Court of London, Decision of 19 May 1989, Family Review 2 (1990), p. 325, at 332. 81 A Bach/B Gildenast, Internationale Kindesentführung: Das Haager Kindesentführungsübereinkommen und das Europäische Sorgerechtsübereinkommen, 1999, p. 92, mn. 210. 82 For more detail see M Jorzik, Das neue zivilrechtliche Kindesentführungsrecht, 1995, p. 91 et seq. 83 ECtHR, Decision of 15 December 2005, No. 35030/04, para. 52 – Karadzic v. Croatia. 84 ECtHR, Decision of 15 January 2000, No. 31679/96 – Ignaccolo-Zenide v. Romania; Judgment of 15 January 2015, No. 62198/11, paras 101 et seq. – Kuppinger v. Germany; Judgment of 21 September 2017, No. 53661/15, paras 102 et seq. – Sévère v. Austria. See also P McEleavy, Child Abduction, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 6. 85 ECtHR, Judgment of 6 July 2010, No. 41615/07, para. 138 – Neulinger and Shuruk v. Switzerland; Judgment of 1 February 2018, No. 51323/16, para. 75 – M.K. v. Greece; Judgment of 21 May 2019, No. 49450/17, para. 46 – O.C.I. and Others v. Romania. 86 See ECtHR, Decision of 15 January 2000, No. 31679/96, para. 95 – Ignaccolo-Zenide v. Romania; Judgment of 26 June 2003, No. 48206/99, para. 72 – Maire v. Portugal; Judgment of 18 January 2017, No. 28481/12, para. 84 – Oller Kaminska v. Poland; Judgment of 18 June 2019, No. 15122/17, para. 77 – Vladimir Ushakov v. Russia. 76

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[International Child Abduction]

Art. 11

3. Brussels II-a and Brussels II-b Regulations and 1996 Hague Convention on the Protection of Children In addition to the Hague Child Abduction Convention and the European Custody 17 Convention, which both existed already at the time of the adoption of the CRC in 1989,87 there are now regulations on international child abduction, which have been concluded or enacted after the entry into force of the CRC. Such a rule is EC Regulation No. 1347/2000 on the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses which entered into force on 1 March 2001.88 With effect from 1 March 2005, this regulation was repealed and replaced by EC Regulation No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (so-called Brussels II-a Regulation). 89 A key concern of the Brussels II-a Regulation is the expeditious reversal of any cases of international child abduction having taken place within the EU.90 To support this target of accelerated proceedings, preliminary rulings concerning child abduction can be carried out through a summary proceeding before the CJEU.91 Such a summary proceeding was first applied in the Inga Rienau case (2008) and is now used relatively frequently. 92 After the European Commission had evaluated the application of the Brussels II-a Regulation in 2014 and 2015, the Council revised the regulation by adopting the so-called Brussels II-b Regulation on 25 June 201993 in order to remove any ambiguities in interpretation and to reduce the frequency of preliminary rulings.94 The Brussels II-b Regulation came into force on 9 August 2019 and will be applicable, according to its Article 105 para. 2, from 1 August 2022 by the courts and administrative authorities of the Member States. Article 11 of the Brussels II-a Regulation modifies the provisions of the 1980 Hague 18 Child Abduction Convention on the return procedure.95 The modifications only apply in cases in which both the former and the current State of residence of the child are EU Member States, except for Denmark, to which the Brussels II-a Regulation does not apply.96 Pursuant to Article 11 para. 3 of the Brussels II-a Regulation, an expeditious See → Article 11 mn. 8. OJ EU 2000, No. L 160, p. 19. As to the exclusive competence of the European Union in this sector, as far as intra-EU cases are concerned, see CJEU, Opinions of the Court of 14 October 2014, Avis 1/13, ECLI: EU:C:2014:2303, paras 65 et seq. 89 OJ EU 2003, No. L 338, p. 1. For a fuller account see J Rieck, Kindesentführung und die Konkurrenz zwischen dem HKÜ und der EheEuGVVO 2003 (Brüssel IIa), Neue Juristische Wochenschrift 2008, p. 182-185; as well as idem, Neues Eilvorlageverfahren zum EuGH, Neue Juristische Wochenschrift 2008, p. 2958-2962. 90 U Gruber, Effektive Antworten des EuGH auf Fragen zur Kindesentführung, Praxis des Internationalen Privat- und Verfahrensrechts 2009, p. 413 et seq. 91 See Article 104 b para. 1 of the Rules of Procedure of the CJEU, introduced in 2008 by OJ EU 2008, No. L 24, p. 39. 92 See CJEU, Judgment of 11 July 2008, Case C-195/08 PPU, ECLI:EU:C:2008:406, para. 43 – Inga Rienau. See also CJEU, Judgment of 22 December 2010, Case C-491/10 PPU, ECLI:EU:C:2010:828, para. 39 – Aguirre Zarraga; Decision of 10 April 2018, Case C-85/18 PPU, ECLI:EU:C:2018:220, paras 29 et seq. – CV/DU. 93 See Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction, OJ EU 2019, No. L 178, p. 1. 94 For a fuller account see A Schulz, Die Neufassung der Brüssel IIa-Verordnung, Zeitschrift für das gesamte Familienrecht 2020, p. 1141-1150. 95 For more detail see C Holzmann, Brüssel IIa-Verordnung: Elterliche Verantwortung und internationale Kindesentführungen, 2008, p. 179 et seq. 96 J Rieck, Neues Eilvorlageverfahren zum EuGH, Neue Juristische Wochenschrift 2008, p. 2958, at 2959. See also T Buck, International Child Law, 2014, p. 219. 87

88

193

Art. 11

[International Child Abduction]

decision as established by the Hague Child Abduction Convention shall be ensured, and pursuant to Article 11 para. 4 of the Brussels II-a Regulation, a refusal to return will be upheld only where a serious threat to the child exists. Similar to the Hague Child Abduction Convention, Article 11 para. 3 of the Brussels II-a Regulation also stipulates a strict six-week deadline for the enactment of judicial decisions. The new Brussels II-b Regulation regulates the interaction between the 1980 Hague Child Abduction Convention and Union law more clearly than the Brussels II-a Regulation, and eliminates previous inaccuracies in interpretation. For example, the start of the six-week deadline is now precisely defined in Article 24 para. 3 of the Brussels II-b Regulation. Also, Article 22 of the Brussels II-b Regulation makes it unmistakably clear that the provisions of the Hague Convention remain applicable and are only specified in more concrete terms by the provisions of the Regulation. Article 11 of the Brussels II-a Regulation with its eight paragraphs has become a new chapter entitled “International Child Abduction” (Articles 22 to 29 Brussels II-b Regulation).97 19 In addition, the Brussels II-a Regulation provides special jurisdictional rules and an effective enforcement procedure. The administrative authorities and courts of the State where a child’s habitual residence is or was, retain jurisdiction for custody decisions if the child has been unlawfully removed to another Member State (see Articles 8 and 10 of the Brussels II-a Regulation).98 These jurisdictional rules supplement the national jurisdiction rules.99 This applies to the protection of the child's well-being also in relation to Article 12 para. 3 and Article 8 of the Brussels II-a Regulation. 100 According to Article 11 paras 6-8 of the Brussels II-a Regulation, a decision of the authorities of the State of origin can even be enforced if the administrative authorities or courts of the State in which enforcement must be executed due to the factual presence of the child, have ordered non-return based on the provisions of the 1980 Hague Child Abduction Convention. A precondition for such enforcement is the issue of a certificate pursuant to Article 42 of the Brussels II-a Regulation.101 Hence, the Brussels II-a Regulation creates dual legal protection for the affected parent or guardian. They may ask the competent authorities of the new State of residence to open a return procedure under the 1980 Hague Child Abduction Convention or they may seek legal protection through placing a request upon the competent authorities of the former State of residence. 102 Due to the possibility under Article 13 of the Hague Child Abduction Convention to refuse a return in certain cases,103 the article loses practical importance within an EU context. However, the new Brussels II-b Regulation ends the divergence between the child's (new) habitual residence and international jurisdiction. Under certain circumstances, Article 9 of the

97 For more detail see A Schulz, Die Neufassung der Brüssel IIa-Verordnung, Zeitschrift für das gesamte Familienrecht 2020, p. 1141, at 1144-1145. 98 As regards the problem of jurisdiction under Article 10 Brussels II-a Regulation, see CJEU, Decision of 10 April 2018, Case C-85/18 PPU, ECLI:EU:C:2018:220, paras 38 et seq. – CV v. DU. As regards the interpretation of the term of “habitual residence” of the child under Article 8 Brussels II-a Regulation see CJEU, Judgment of 8 June 2017, Case C-111/17 PPU, ECLI:EU:C:2017:436, paras 35 et seq. – OL v. PQ; Judgment of 28 June 2018, Case C-512/17, ECLI:EU:C:2018:513, paras 40 et seq. – HR. 99 J Rieck, Neues Eilvorlageverfahren zum EuGH, Neue Juristische Wochenschrift 2008, p. 2958, at 2959. 100 CJEU, Judgment of 1 October, Case C-436/13, ECLI:EU:C:2014:2246, paras 96 et seq. – E. v. B. 101 In detail see CJEU, Judgment of 5 October 2010, Case C-400/10, ECLI:EU:C:2010:582 – McB. See also U Gruber, Effektive Antworten des EuGH auf Fragen zur Kindesentführung, Praxis des Internationalen Privat- und Verfahrensrechts 2009, p. 413, at 414. 102 See Recital 17 of the Brussels II-a Regulation; see also CJEU, Judgment of 11 July 2008, Case C-195/08 PPU, ECLI:EU:C:2008:406, para. 53 – Inga Rienau. 103 See → Article 11 mn. 12.

194

[International Child Abduction]

Art. 11

Brussels II-b Regulation establishes the jurisdiction of the country of the new habitual residence in cases of the wrongful removal or retention of a child. Contrary to Article 13 para. 2 of the Hague Child Abduction Convention and Article 20 15 para. 1 lit. a of the European Custody Convention, Article 11 para. 2 and Articles 41 and 42 of the Brussels II-a Regulation grant the child a fundamental right to express his or her views, according to his or her age and maturity. The authorities’ obligation to consult and hear the child has primarily the comprehensive participation rights of the child in mind, as enshrined in Article 12 CRC.104 Thus, the Brussels II-a Regulation follows a more child-centric approach to parental child abduction than that appearing in other international instruments.105 The CJEU also emphasises the importance of the personal hearing of the child by relying on Article 24 of the EU Charter of Fundamental Rights in the context of the Brussels II-a Regulation.106 Accordingly, for example, German courts regularly deny the recognition of a foreign custody decision with reference to the national “ordre public”, if a hearing of the child has been omitted. 107 Different conclusions apply only in cases where an independent and expert reviewer has reliably established the child's will and if this will has been taken seriously into account in foreign court proceedings.108 Such a child hearing may, of course, produce process delays. However, the proceeding time is limited through the strict six-week period stipulated in Article 11 para. 3 subpara. 2 of the Brussels II-a Regulation. In this way, the acceleration and expediency imperatives in custody matters are ensured through concretisations, 109 because these imperatives mainly serve the child’s best interests.110 Although the hearing of children in the Brussels II-a Regulation could in principle be regarded as compatible with the requirements of Article 12 CRC, in particular when referencing to the case-law of the CJEU,111 Article 21 of the Brussels II-b Regulation represents an essential childfriendly innovation.112 Consequently, in exercising their jurisdiction, the courts of the Member States shall now, in accordance with national law and procedure, give every child who is capable of forming his or her own views the genuine and effective opportunity to express these views, either directly, or through a representative or an appropriate body. The child's views shall be given due weight in accordance with his or her age and maturity. The 1996 Hague Convention on the Protection of Children,113 entered into force on 21 1 January 2002 and replacing the former 1961 Hague Protection of Minors Convention, 104 See C Holzmann, Brüssel IIa-Verordnung: Elterliche Verantwortung und internationale Kindesentführungen, 2008, p. 186 et seq.; see also M Völker/G Steinfatt, Die Kindesanhörung als Fallstrick bei der Anwendung der Brüssel IIa-Verordnung, Familie-Partnerschaft-Recht 2005, p. 415-419. 105 J Tobin/N Lowe/E Luke, Article 11, in: J Tobin (ed.), The UN Convention on the Rights of the Child. A Commentary, 2019, p. 370, at 384. 106 CJEU, Judgment of 22 December 2010, Case C-491/10 PPU, ECLI:EU:C:2010:828, paras 46 et seq., 60 – Aguirre Zarraga. 107 See, e.g., Higher Administrative Court Berlin-Brandenburg, Judgment of 31 March 2011, OVG 3 B 8/08, para. 1.b.cc. 108 Higher Regional Court Oldenburg, Judgment of 30 April 2012, 4 UF 14/12, para. 34. 109 C Holzmann, Brüssel IIa-Verordnung: Elterliche Verantwortung und internationale Kindesentführungen, 2008, p. 193; N Lowe, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 73, at 95. 110 U Gruber, Das HKÜ, die Brüssel IIa-Verordnung und das Internationale Familienrechtsverfahrensgesetz, Familie-Partnerschaft-Recht 2008, p. 214, at 216. 111 See CJEU, Judgment of 22 December 2010, Case C-491/10 PPU, ECLI:EU:C:2010:828, paras 66 et seq. – Aguirre Zarraga. 112 Rightly so, A Schulz, Die Neufassung der Brüssel IIa-Verordnung, Zeitschrift für das gesamte Familienrecht 2020, p. 1141, at 1143. 113 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, of 19 October 1996, UNTS 2204 (p. 503).

195

Art. 11

[International Child Abduction]

regulates the international protection of children who are temporarily or permanently outside of their home country. The Convention focuses primarily on children’s welfare. For example, pursuant to Article 5, where decisions on parental responsibility are concerned, the States Parties are obligated to establish jurisdiction only to the courts where the child is habitually resident. Since the concept of habitual residence in international law on children's rights is not defined, the specialised courts mainly rely on actual criteria such as the length of stay or the social integration of the child in the country of relocation.114 In doing so, they are linking the international responsibility for custody proceedings to a purely factual process. However, in cases of an unlawful removal or retention of a child, pursuant to Article 7 of the Convention, the authorities of the States Parties, in which the child was habitually resident immediately before the unlawful abduction, remain competent, until the child has established a habitual residence in another State and the removal or retention is approved or the child has resided in that other State for at least one year.115 All in all, together with the 1980 Hague Child Abduction Convention and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance,116 the 1996 Hague Convention on the Protection of Children forms an international legal corpus which is closely linked to Article 11 CRC and helps the States Parties to the CRC to implement the children’s rights.117 Thus, the CRC Committee regularly refers in its Concluding Observations to these conventions in different cross-border family contexts: illicit transfer and non-return of children from abroad, parental responsibilities, child maintenance and weak enforcement of court orders.118

IV. Corresponding Case-Law of the European Court of Human Rights 22

Like the abovementioned multilateral agreements, the ECtHR also regularly refers to accelerated procedures for repatriating abducted children. Time and again, the Court points out that, for example, legal proceedings in child abduction cases in several Member States take too long, although these procedures require particularly rapid and urgent processing.119 Remedial measures of a general nature are therefore indicated. In view of the time criterion in parent-child relationships, the ECtHR has called upon the German Government to introduce specific complaints in order to accelerate court proceedings in child abduction cases.120

114 See, e.g., Higher Regional Court Stuttgart, Decision of 12 April 2012, 17 UF 22/12, paras 14 et seq.; Higher Regional Court Bremen, Decision of 22 December 2015, 4 UF 183/15, para 10. 115 For more detail see T Rauscher, Haager Kinderschutzübereinkommen und Auswanderungsmotive in der Sorgerechtsregelung, Neue Juristische Wochenschrift 2011, p. 2332, at 2333 et seq. 116 Convention on the Civil Aspects of International Child Abduction, of 25 October 1980, UNTS 1342 (p. 89); Convention on the international recovery of child support and other forms of family maintenance, of 23 November 2007, UNTS 2955. 117 H Van Loon, in: T Liefaard/J Sloth-Nielsen (eds.), The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead, 2017, p. 31, at 33; LE Teitz, in: M Jänterä-Jareborg (ed.), The Child’s Interests in Conflict, 2016, p. 163, at 167. 118 See, for instance, CRC Committee, Concluding Observations: Haiti, CRC/C/HTI/CO-23, 2016; Iran, CRC/C/IRN/CO/3-4, 2016; Oman, CRC/C/OMN/CO/3-4, 2016; Senegal, CRC/C/SEN/CO-3-5, 2016. Further see O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 179. 119 ECtHR, Judgment of 15 January 2000, No. 31679/96, para. 106 – Ignaccolo-Zenide v. Romania; Judgment of 8 January 2008, No. 8677/03, paras 89 et seq. – P.P. v. Poland; Judgment of 26 November 2013, No. 27853/09 – X v. Latvia. 120 ECtHR, Judgment of 15 January 2015, No. 62198/11, paras 137 et seq. – Kuppinger v. Germany.

196

Art. 12

[Right to Express Views; Right to a Fair Hearing]

In addition, the ECtHR also substantively examines child abduction cases falling 23 within the scope of the Hague Child Abduction Convention in accordance with Article 8 ECHR. In doing so, the Court states on a regular basis that the interests of the child are best safeguarded if the child is able to maintain contact with both parents.121 In this sense, it is the primary responsibility of both parents to reach an amicable agreement on the upbringing of the child, their place of residence and the visiting arrangements. A return of the child to his or her former whereabouts is, therefore, not unreasonable from the outset. An abducting parent must at least not gain legal legitimacy for a situation which he or she has unilaterally (and mostly illegally) created.122 However, the well-being of the child has always to be balanced against the interests of his or her parents based on the circumstances of each individual case.123 There are, in fact, exceptions to the principle of returning children to the place of their habitual residence, when the child risks being subject to domestic violence by the abandoned parent.124 In any case, the expressed will and wishes of the child should be seriously considered, although they are not decisive for the outcomes of the decision.125

Article 12 [Right to Express Views; Right to a Fair Hearing] 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Child’s Right to Express Views (Article 12 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . 1. Opinion-Forming and Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Opinion-Forming Capability of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Matters Affecting the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Due Weight Consideration of the Views of the Child . . . . . . . . . . . . . . . . . . . . . III. Right of the Child to be Heard in Judicial and Administrative Proceedings (Article 12 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Right to a Fair Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Direct Hearing and Child’s Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Representation in a Manner Consistent with the Procedural Rules of National Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Child’s Right to Express Views at all Stages of the Decision-Making Process V. Child’s Right to Express Views in Varying Life Circumstances . . . . . . . . . . . . . . .

1 4 6 9 12 14 16 16 21 24 25 31

121 See ECtHR, Judgment of 6 July 2010, No. 41615/07, paras 134 et seq. – Neulinger and Schuruk v. Switzerland. See also ECtHR, Judgment of 26 November 2013, No. 27853/09, paras 94 et seq. – X v. Latvia. The older case-law is reported by S Graf Kielmansegg, Jenseits von Karlsruhe: Das deutsche Familienrecht in der Straßburger Rechtsprechung, Archiv des Völkerrechts 46 (2008), p. 273, at 287. 122 ECtHR, Judgment of 8 January 2007, No. 39388/05, para. 73 – Maumosseau and Washington v. France. 123 ECtHR, Judgment of 6 July 2010, No. 41615/07, paras 141 et seq. – Neulinger and Schuruk v. Switzerland; Judgment of 26 November 2013, No. 27853/09, paras 115 et seq. – X v. Latvia. 124 ECtHR, Judgment of 21 May 2019, No. 49450/17, para. 46 – O.C.I. and Others v. Romania. See also → Article 11 mn. 12. 125 ECtHR, Judgment of 9 September 2014, No. 43730/07, paras 107 et seq. – Gajtani v. Switzerland.

197

Art. 12

[Right to Express Views; Right to a Fair Hearing] VI. Relationship Between the Right to Express Views in Article 12 CRC and Other Provisions of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Embedding of Article 12 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37 42

I. Generalities 1

Article 12 CRC, which is a key standard and one of the fundamental values and guiding principles of the Convention, addresses the legal and social situation of children, who do not yet enjoy the full autonomy of adults but who are, nonetheless, holders of rights.1 Therefore, Article 12 para. 1 CRC secures respect for the voice of children who are capable of forming their own views and opinions, in all matters which relate to them, and Article 12 para. 2 CRC stipulates that children must be heard in all judicial or administrative proceedings affecting them. The rationale of this provision is to involve the child actively and meaningfully in decision-making processes, especially in matters that affect him or her. The participation principle flows from the premise that children’s rights need to be recognised in line with the view that they are active agents rather than passive recipients of protection and care, provided they receive adequate support.2 The right of all children to be heard and taken seriously constitutes, alongside Articles 2, 3 and 6 CRC, a “general principle” of the Convention.3 Article 12 CRC has even been credited for giving the CRC its “soul”.4 The obligation to respect the views of children demands a shift in the perception and treatment of children from passive objects in need of adult protection to active participants in decision-making processes at all levels of society.5 The implementation of Article 12 CRC therefore requires a profound and radical reconsideration of the status of children and the nature of adult-child relationship in most countries. The ground-breaking aspect of Article 12 CRC is that it has an emancipatory character, reflecting awareness that children, even from birth, are active agents and constructive thinkers and learners with the right to participate in decision-making.6 In this context, Article 12 CRC operates as both a substantive as well as procedural right, since it recognises that children are entitled to be actors and have a right to contribute to any decisions affecting them.7 Yet, although there are records in the formal drafting history that children have contributed ad hoc and occasionally to the formation of the text of the Convention, there have been no contributions from children in the drafting process of Article 12 CRC.8

CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 1. See G Lansdown, Innocenti Insight: The Evolving Capacities of the Child, UNICEF, 2005; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 12.03. 3 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 22. 4 See J Sloth-Nielsen, Ratification of the United Nations Convention on the Rights of the Child: Some Implications for South African Law, South African Journal of Human Rights 11 (1995), p. 401 et seq. See also M Freeman, Whither Children: Protection, Participation, Autonomy? Manitoba Law Journal 21 (2005), p. 319: “linchpin” of the Convention. 5 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 398. See also J Doek, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 257, at 258 et seq. 6 See J Flavell, Cognitive Development: Past, Present, and Future, in: K Lee (ed.), Childhood Cognitive Development: The Essential Readings, 2000, p. 8, at 9; H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 56. 7 A Parkes, Children and International Human Rights Law, 2014, p. 50. 8 See the critical assessment by H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 59. 1

2

198

[Right to Express Views; Right to a Fair Hearing]

Art. 12

Article 12 CRC contains a clear legal obligation. States Parties are required to either 2 directly guarantee the right of the child to be heard or to pass legislation to enable the children to exercise this right.9 In adopting measures to secure the implementation of Article 12 CRC, States Parties enjoy a certain level of discretion, provided that the measures taken are effective and meaningful in actually enabling children to express their views consistent with Article 12 CRC.10 The CRC Committee has outlined basic requirements which it considers to be essential elements of all measures to implement the child’s right to be heard. The measures must be transparent and informative, voluntary, respectful, relevant, child-friendly, inclusive, supported by training, safe and sensitive to risk and accountable.11 The rights conferred by Article 12 CRC also include the (negative) right of the child not to voice an opinion or renounce the right to express views. Article 12 CRC is not an obligation of the child, but only a right.12 In order to facilitate the exercise of the right to express views, it is necessary for the child to receive all the information and appropriate assistance to decide whether and how to exercise the right. The methods used to implement Article 12 CRC have been increasingly improved 3 in the past decade at local, national, regional and international levels. The practice of the so-called “participation rights” of children has been widespread. Although the term “participation rights” is not included expressly in Article 12 CRC, it has generally been established to describe the processes of mutual respectful dialogue between children and adults, and of how the experiences of children and adults are to be taken into account.13 The concept of participation refers to ongoing processes, which include informationsharing and dialogue between children and adults based on mutual respect.14 The Third Optional Protocol to the CRC on a Communications Procedure (OPIC), which, in addition to the inter-State notification and the inquiry procedures, provides in particular for an individual communications procedure to the CRC Committee,15 allowing the child concerned to appeal,16 thereby contributing to the increased participation of children in the implementation of their rights. Overall, giving due weight to the opinions of children allows the possibility to include important aspects and experiences in decision-making, in policy formulation, and in the preparation of laws and measures which may not have been considered by adults.17

9 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 15; General Comment No. 14, CRC/C/GC/14, 2013, paras 89 seq. See also CRC Committee, Concluding Observations: Japan, CRC/C/JPN/CO/4-5, 2019, paras 21-22. 10 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 21. See also L Lundy/ J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 417 et seq. 11 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 133. 12 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 16. See also H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 329. 13 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 3; see also H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 60. 14 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 2. See also J Tobin, Justifying Children’s Rights, International Journal of Children’s Rights 21 (2013), p. 395, at 409 et seq. 15 See → Introduction mn. 7; → Individual Communications Procedure mn. 1. 16 See Article 5 OPIC. 17 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 12 et seq.

199

Art. 12

[Right to Express Views; Right to a Fair Hearing]

II. Child’s Right to Express Views (Article 12 para. 1 CRC) The right to express views as laid down in Article 12 para. 1 CRC should, according to the CRC Committee, entitle not only an individual child, but also groups of children, such as school classes, children of minority groups, indigenous children or children with disabilities.18 However, it remains unexplained how an opinion of a group can be formed and taken into account, especially when there are differences in maturity and age of individual group members. The CRC Committee still needs to address this complex and delicate issue. Therefore, no significant emphasis can be placed so far on taking into account the opinion of a group of children. Article 5 para. 1 OPIC, which allows individuals and groups of children to initiate an individual communications procedure before the CRC Committee, also does nothing to change this legally unclear situation on what criteria have to be met in order to form a “group of children” and to establish their common opinion.19 5 Article 12 para. 1 CRC grants the States Parties no discretion or leeway in the application and implementation of the child’s right to express views. Instead, the article contains a strict obligation to take appropriate measures to fully implement the child’s right to express views.20 This obligation arises from the formulation “shall assure” which stipulates an unconditional legal obligation.21 The child's dignity and right to privacy also support a strict interpretation of the States’ duty to ensure full enjoyment of the rights under Article 12 CRC.22 States Parties may enjoy a level of discretion with respect to the type of measures they adopt with regard to Article 12 CRC but they have no leeway for failing to adopt any measures at all that would enable children to effectively enjoy their right to be heard.23 The obligation of States Parties under Article 12 para. 1 CRC is thereby divided into two elements; firstly, they have an obligation to promote the formation and expression of the child’s opinions,24 and secondly, they must afford due weight to the views of the child in regards to any decision-making procedure concerning the child.25 4

1. Opinion-Forming and Freedom of Expression 6

According to Article 12 para. 1 CRC, every child has the right to freely form and express his or her views in all matters affecting them. Free expression means that children may not be subjected to pressure and can decide for themselves whether, in which form, and with what content they want to express themselves or not.26 Whereas no social being is fully autonomous and independent when forming or expressing a view, Article 12 para. 1 CRC prohibits any kind of State manipulation and undue influence or arbitrary interference by State authorities upon the child.27 In order to prevent third 18 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 9 et seq.; General Comment No. 14, CRC/C/GC/14, 2013, para. 91. 19 For more detail see → Individual Communications Procedure mn. 7. 20 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 19. 21 See A Parkes, Children and International Human Rights Law, 2014, p. 28; see also H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 64-65. 22 CRC Committee, Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, para. 32. 23 See L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 403; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 12.05. 24 See → Article 12 mns. 6 et seq. 25 See → Article 12 mns. 16 et seq. 26 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 22-23. 27 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 12.08.

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parties from influencing the child's opinion and expression, States Parties also have a positive obligation to ensure conditions that are appropriate to the individual and social situation of the child and in which the child is safe and respected in expressing his or her views.28 Critically, the assessment of a child’s capacity to form a view and the means by which the view is expressed must not be determined through an adult-centric prism.29 In this respect, Article 12 CRC demands a reversal of the historical prejudice that children are incompetent in favour of a presumption that children are capable of expressing views.30 These positive measures which must be taken by the States Parties also include the 7 obligation to provide sufficient information to the child upon which they can form and express an opinion.31 They must be informed of any pending decisions and the possible consequences flowing from them. Likewise, children must be informed about the external conditions in which they can express their views. The child’s implicit right to information in Article 12 para. 1 CRC is an indispensable prerequisite for an informed decision of the child.32 Children do not have to be informed about every single aspect, since it is not necessary that they have comprehensive knowledge of all aspects of the matter affecting them in order to express their own views. 33 It is sufficient that they are given the information necessary to develop an overview and an overall understanding of their affairs and thus being able to form an opinion on the subject.34 The responsibility to inform the child belongs primarily to those who hear the child in a judicial or administrative context. The information can also be provided in a subsidiary manner by the parents, caregivers or guardians of the child.35 Furthermore, the concept of free expression of views means, firstly, that it is the 8 child who is entitled to choose whether to express his or her views by whatever means or indeed to remain silent.36 Article 12 para. 1 CRC is a right and not a duty of the child.37 The child must never be placed under pressure to express his or her own views. Moreover, a child must never be placed under undue influence or pressure to express the views of others.38 Secondly, the effectiveness of a concept of free expression of views demands that measures must be taken to provide children with an age-appropriate and safe place, without fearing rebuke or reprisal, to express their views.39 Thirdly, it follows from the State’s duty to protect the child’s rights pursuant to Article 12 para. 1 CRC that children are not heard more often than necessary with regard to their opinion.40 This CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 23. J Tobin, Justifying Children’s Rights, International Journal of Children’s Rights 21 (2013), p. 395, at 430; L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 402. 30 CRC Committee, General Comment No. 12 CRC/C/GC/12, 2009, para. 20. 31 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 25. 32 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 25. 33 CRC Committee, General Comment No, 12, CRC/C/GC/12, 2009, para. 21. 34 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 21. For a fuller account see L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 405. 35 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 25. 36 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 402. 37 L Lundy, “Voice” is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child, British Educational Research Journal 33 (2007), p. 927, at 933. 38 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 22. 39 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 134; see also L Lundy/ J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 407. 40 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 24. 28

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is particularly important in cases where a decision is to be made on matters associated with adverse experiences of the child. The hearing of the child may in such cases have a traumatic impact which should not be intensified by repeated questioning.41

2. Opinion-Forming Capability of the Child 9

Article 12 para. 1 CRC relies upon the capability of children to form their own views freely without defining that capability. The CRC Committee has therefore requested the States Parties to develop procedures to assess a child’s ability to form its own views. 42 In this respect, it should be noted that Article 12 para. 1 CRC does not set a minimum age for the exercise of the right to express their views. Children enjoy this right by virtue of their status as human beings.43 States Parties are therefore precluded from introducing age limits through statute or case-law. 44 This is especially due to the fact that children are already capable of forming their own opinions from a very young age, even if they are unable to verbalise them.45 According to the CRC Committee, in infants and even babies, the right to express views can also be realised through non-verbal communication such as games, painting, body language or facial expression.46 More restrictive interpretations of the requirements to the capability to form views would risk a refuse of a large group of children to be heard from the outset.47 Therefore, the CRC Committee insists that Article 12 para. 1 CRC has to be construed broadly.48 States Parties should, in principle, assume that all children, including very young children, have the capability to form views and not impose a requirement that they should be competent, reasonable, informed, accomplished or skilful in the formation of their views.49 It is not up to the child to prove his or her capacity.50 The burden of proving a corresponding inability of the child lies rather with the State authorities or with those who would deny the child the opportunity to enjoy their right to express opinions.51 The fact that the child is very young or in a vulnerable situation (e.g., has a disability, belongs to a minority group, is a refugee, etc.) does not deprive him or her of the right to express his or her views, nor reduces the weight given to the child’s views in determining his or her best interests. 52 In particular, adequate measures to guarantee the right to be heard should be implemented in the context of international migration, as children who come to a country could be CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 24. CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 44. 43 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 404. 44 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 21, 44. In a similar vein, see ECOSOC Resolution 2005/20, 22 July 2005, para. 18. See also A Parkes, Children and International Human Rights Law, 2014, p. 92 et seq. 45 H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 66. 46 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 21. For a fuller account see P Alderson/J Hawthorne/M Killen, The Participation Rights of Premature Babies, International Journal of Children’s Rights 13 (2005), p. 31-50. 47 See M Palm-Risse, Hilfe für die Wehrlosen: Die Konvention über die Rechte des Kindes, Vereinte Nationen 1990, p. 101, at 103; H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 329. 48 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 20. 49 See Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, para. 20. See also L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 404-405. 50 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 20. 51 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 20. Further see N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 149. 52 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 21. 41

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in a particularly vulnerable and disadvantaged situation.53 They should be given the opportunity to express their views also in the immigration procedures concerning their parents, in particular where the decision could affect the children’s rights, such as the right to not to be separated from their parents, except when such separation is in their best interests.54 Hence, age and maturity must not decide "whether" the child is being heard, but will 10 only be relevant in terms of “the way” the child is to be heard.55 In the case Y.B. and N.S. versus Belgium (2018) where the applicant, a migrant girl, was five years old when the national authorities decided to refuse a humanitarian visa and giving her a residence permit to live with her foster parents under the Islamic kafalah system without taking the views of the child into account, the CRC Committee rightly found a violation of Article 12 CRC. The CRC Committee observed that the child would have been perfectly capable of forming views of her own regarding the possibility of living permanently with her foster parents in Belgium. The implications of the immigration proceedings were of paramount importance for the child’s life and future, insofar as they were directly tied to her chances of living with the authors as a member of their family.56 Nevertheless, there are certain situations in which a child, especially a newborn, a 11 baby, an infant or toddler, lacks the required ability to inspect and understand relevant contexts, so that he or she is simply not capable of forming or expressing opinions. It is obvious that the formulation of Article 12 para. 1 CRC, which focuses on the child’s capability to form views, respects that the child’s right to express views has certain limits.57 In these situations, the CRC Committee calls on the Contracting States to issue appropriate substitution arrangements which assist the child in forming his or her opinion.58 The child has a right to assistance and guidance, which has to compensate for the lack of knowledge, experience and understanding of the child and is restricted by his or her evolving capacities. 59 Accordingly, the more the child knows and understands, the more experienced the child is, the more the parents, the legal guardians or other persons responsible for the child have to transform direction and guidance into reminders and advice and later to an exchange of views on an equal footing.60

3. Matters Affecting the Child Under Article 12 para. 1 CRC, children must be given a right to express views in all 12 matters affecting them. Whereas the original draft written by Poland framed the child’s right to express his or her views to the private sphere and to matters concerning the person directly (such as marriage or medical treatment), the drafters finally abandoned 53 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 123; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 35. 54 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 38. 55 N Ivanits, Die Stellung des Kindes in auf Einvernehmen gerichteten gerichtlichen und außergerichtlichen Verfahren in Kindschaftssachen, 2012, p. 50. 56 CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/ 2017, para. 8.8. 57 See H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 329; O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 169. 58 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 44. As regards the child’s advocate or representative see → Article 12 mns. 21 et seq. 59 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 84. 60 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 84. See also M Freeman, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 49, at 59.

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this restrictive approach after several years of deliberation.61 The term “matters affecting the child” must be interpreted extensively as a broad interpretation required to effectively integrate children into society.62 The term “matters affecting the child” contains all those issues affecting the child’s immediate and direct environment, especially in regard to internal family matters, in which children have to be given the opportunity to express their views. Within the remit of these issues are also governmental and court proceedings as mentioned in Article 12 para. 2 CRC which affect internal family relationships such as the divorce of parents, custody rights or adoption.63 Even further subjects not expressly dealt within the Convention can also fall within the meaning of “matters”.64 When drafting the Convention, the majority of the delegations expressed the view that the understanding of relevant matters should not be subjected to the limits of a list.65 13 However, the child must be affected by the matter. The ordinary meaning of the term “affecting” indicates that there must be at least some nexus between the relevant matter and the child.66 Through this limitation, it should be made clear that the Convention does not follow a general political mandate for children.67 Therefore, a decision whether or not to build a new hospital or to take any other macro-level policy decision, which has very indirect effects on children,68 cannot be based on Article 12 para. 1 CRC.69 Of course, this does not mean that the test of being “affected” will only be satisfied in matters where an individual child is the exclusive or primary subject of concern.70 The term “affecting” also encloses matters which affect, alongside third parties, children or groups of children directly, i.e. matters which have a real and specific bearing on the life of children in their community and society.71 These micro-level matters may be the family; there is no doubt that parents and family members are powerful socialisation agents.72 Further examples in the list proposed by the CRC Committee are on meso-level such as health care, education and school, immigration or asylum proceedings.73 An examination of the CRC Committee’s list also affirms the idea that there must be a real rather than a remote connection between the relevant matter and its impact or effect 61 See H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 69-70; A Parkes, Children and International Human Rights Law, 2014, p. 51-54. 62 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 26 et seq. 63 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 397. 64 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 26 et seq. 65 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 241-248.; E/CN.4/L.1575, 1981, paras 76-70. 66 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 408. 67 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 27. Critical view by J Doek, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 257, at 271. 68 See, for instance, EG Thukral, in: A Nolan/R O’Connell/C Harvey (eds.), Human rights and public finance, 2013, p. 139-162; N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 149. 69 Different view by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mns. 12.14-12.15. 70 Dissenting: C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 397. 71 See CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 55. See also M-F LückerBabel, The Right of the Child to Express Views and to Be Heard: An Attempt to Interpret Article 12 of the UN Convention on the Rights of the Child, International Journal of Children’s Rights 3 (1995), p. 391, at 396; N Cantwell, in: A Invernizzi/J Williams (eds.), The Human Rights of Children: From Visions to Implementation, 2011, p. 55. 72 See T Gal, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 119, at 129. 73 For a fuller account see CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 89-131.

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on children.74 However, the difficulty remains in properly defining a class or group of children endowed with expressing their views on a meso-level of decision-making.75

4. Due Weight Consideration of the Views of the Child According to Article 12 para. 1 CRC, children do not only have to be heard, their 14 views have also to be adequately considered and given due weight in the decision-making process. Simple listening to children is not enough. The view of the child is to be considered seriously and carefully.76 This requirement implies that children’s views shall not be ignored or overlooked when making decisions about matters affecting them.77 The views of the child shall be given due weight in accordance with the age and maturity of the child. Biological or chronological age alone cannot provide sufficient information as to the ability of the child to form his or her own views.78 The ability to express views is not exclusively dependent on the age of a person but has also to be determined on the basis of information obtained, experience, environment, social and cultural expectations, and the levels of support the child has received so far.79 The element of maturity, which has to be considered additionally, describes the child’s ability to understand and assess the implications of a particular matter and to express his or her views on issues in an independent and reasonable manner.80 The greater the impact of the decision on the life and future of the child, the more weight the views of the child shall be given.81 This conclusion follows from the wording “due weight” in Article 12 para. 1 CRC which implies a certain proportionality between the weight of the views of the child, his or her age and maturity on the one hand, and the importance and sustainability of the decision to be taken on the other hand.82 In sum, children’s views have always to be seriously taken into account, although they are not necessarily determinative or conclusive with an issue affecting them. The assessment of a child’s capacity to form a view needs to be done on a case-by-case basis.83 The key considerations here must be the age and maturity of the child and the impact of the matter on the child when balanced against the impact of the matter on other persons and other legitimate social considerations. 84 Finally, the effective enjoyment of the right to be heard under Article 12 para. 1 15 CRC also demands that children must be advised in an age-appropriate manner about the extent to which their views have been taken into account and the reasons for any 74 Rightly so, L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 410. 75 See → Article 12 mn. 4. 76 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 28; General Comment No. 14, CRC/C/GC/14, 2013, paras 53, 97. 77 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 411. 78 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 10. 79 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 29. 80 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 30. 81 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 398; L Krappmann, The Weight of the Child’s View, International Journal of Children’s Rights 18 (2010), p. 501, at 505. 82 See M-F Lücker-Babel, The Right of the Child to Express Views to be Heard: An Attempt to Interpret Article 12 of the UN Convention on the Rights of the Child, International Journal of Children’s Rights 3 (1995), p. 391, at 399; S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 222. 83 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 29. See also H Doel-Mackaway, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 52, at 67. 84 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 413. See also ECtHR, Judgment of 9 May 2006, No. 18249/02, paras 57-58 – C v. Finland.

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decision that does not accord with their views.85 The CRC Committee has framed this requirement as a form of accountability in order to ensure that children are entitled to a clear feedback on how their participation influenced any outcomes.86 As a general rule, the burden of justifying a decision which is inconsistent with a child’s views will be greater where the extent and nature of the impact of the decision on the child are greater and has less interference with the rights of other persons.87

III. Right of the Child to be Heard in Judicial and Administrative Proceedings (Article 12 para. 2 CRC) 1. Right to a Fair Hearing Article 12 para. 2 CRC secures the child’s right to a fair hearing before all administrative and judicial bodies in proceeding affecting the child. It follows from the wording “[f]or this purpose” that the right to a fair hearing is guaranteed to the child under the conditions stipulated in Article 12 para. 1 CRC. Children have to be provided the opportunity to express their views and make a statement before a judicial and/or an administrative body on matters affecting them, and their views are to be respected and given due weight according to the maturity and age of the child.88 Also here, the right to a fair hearing is a right and not an obligation of the child.89 It also includes the right to remain silent and to waive the right to give an opinion.90 17 The right to a fair hearing is essential for a fair trial. This right must be respected and realised at all stages of judicial and administrative proceedings which affect the child in a direct or indirect way.91 Accordingly, even in advance of judicial criminal proceedings or in any other pre-trial stage, the child has the right to be heard personally by the police, the prosecutor and the investigating judge.92 Likewise, the right to a fair hearing must be considered in proceedings before the court itself, in sentencing, and in the implementation of any penalties imposed.93 Also in custody or accession proceedings, the child shall be given the opportunity to make his or her wishes, opinions and personal relationships with the other family members discernible to the court.94 This also applies if parental consent on the matter exists. If custody regulations are established and implemented against the child's serious resistance, the experience of disregarding one's own personality may, in some circumstances, do more harm than good to the child's well-being.95 18 In order to give the child the opportunity to participate meaningfully in proceedings, the child must not only be immediately informed of the essential substantive law 16

85 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 415. 86 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 134. 87 See C Willow, Children’s Right to be Heard and Effective Child Protection, 2010, p. 40. 88 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 399. 89 See also → Article 12 mn. 8. 90 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 58. 91 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 58. 92 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 58; General Comment No. 10, CRC/C/GC/10, 2007, para. 44; General Comment No. 24, CRC/C/GC/24, 2019, paras 10-11. 93 In detail see → Article 40 mns. 7 et seq. 94 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 93. 95 See N Ivanits, Keine Beteiligung des Kindes bei elterlichem Einvernehmen?, Neue Zeitschrift für Familienrecht 2016, p. 7, at 9.

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aspects, but must also be informed of the course of the proceedings. This includes information regarding possible measures that may seize the court.96 The child shall also have a right to be heard in regard to measures that can be imposed as a punishment.97 Although decision-making and sanctioning remain the competences of a judge, the child may not be treated as a passive object. This is particularly true for the imposition of sanctions, since children that are involved in such proceedings generally show a more comprehensible reaction.98 In order to make the exercise of the rights arising from Article 12 para. 2 CRC as 19 simple as possible for the concerned child, the judicial or administrative proceedings must be carried out in a way suitable for children.99 Only when the situation in which the child is heard is appropriately designed for the age of the child and exerts neither intimidating, hostile, insensitive nor other negative effects on the child, is the right to a fair hearing implemented effectively.100 Particular emphasis should be placed upon ensuring that the provision of information to the child is done in a child-friendly manner. In addition, external circumstances such as the configuration of meeting and waiting rooms, the courtrooms and the clothing of judges and lawyers have to be correspondingly appropriate for children; the personnel involved must also be adequately trained.101 Article 12 para. 2 CRC is applicable to all judicial and administrative proceedings af- 20 fecting the child without limitation. The article encompasses both proceedings brought by the child him- or herself, such as an action against exclusion from school or the application for obtaining a driver’s license, as well as processes that are initiated by others, such as adoption proceedings or actions concerning rights of custody or access. 102 Alternative dispute mechanisms, such as mediation or arbitration, are also proceedings within the meaning of Article 12 para. 2 CRC.103 Moreover, the CRC Committee suggests that the right to be heard refers to all judicial proceedings, in all instances, whether staffed by professional judges or laypersons, and all relevant procedures concerning children, without restriction.104 In a similar way, Article 2 OPIC obligates the CRC Committee as the expert monitoring body, in respect of the individual communications procedure, to give appropriate weight to the views of the child in accordance with his or her age and maturity.105 Even in proceedings in which children are not a principal party, for instance in a criminal or immigration proceeding where a parent or guardian of the child is the principal party, they may have a right to participate, insofar as these proceedings affect the child.106 Critically, this does not necessarily mean that a child would be entitled to participate fully in the proceedings. The opportunity to be heard could be satisfied by lesser measures, which, depending on the circumstances, could

CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 60. CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 45; General Comment No. 24, CRC/C/GC/24, 2019, para. 45. 98 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 45. For more detail regarding the European level see → Article 40 mn. 36. 99 CRC Committee, General Comment No. 12, CRC/C/GC/12 2009, para. 34. 100 CRC Committee, General Comment No. 12, CRC/C/GC/12 2009, para. 34. 101 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 34; General Comment No. 10, CRC/C/GC/10, 2007, para. 46. See also → Article 40 mn. 16. 102 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 32 et seq. 103 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009 para. 32. 104 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 27. 105 For more detail see → Individual Communications Procedure mn. 4. 106 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 15. 96

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involve the child’s view being brought to the attention of the decision-maker via a representative or a child’s advocate.107

2. Direct Hearing and Child’s Representatives According to Article 12 para. 2 CRC, the child can be heard either directly or through a representative or another intermediate appropriate body. A more detailed regulation as to when a child must be heard directly or who may represent the child is not contained in Article 12 para. 2 CRC. This decision is fundamentally left to the discretion of States Parties when implementing the requirements of Article 12 para. 2 CRC.108 This is all the more so, since the option by which children can exercise their right to have their views made known to a decision-maker via an appropriate body has never been an issue in the recommendations of the CRC Committee. Nor is the reason for the inclusion of this term explained in the travaux préparatoires of the Convention. It is thus arguable that it can be accommodated within the term of a representative or a child’s advocate.109 22 Whether the child wishes to express him- or herself directly or whether this should be done indirectly through a representative or an appropriate body, should in principle remain a decision that the child is able to make. 110 The CRC Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings.111 However, the CRC Committee’s suggestion that direct representation should occur wherever possible implies that this may not always be possible. For example, a child may not wish to participate directly for personal reasons, the rules governing the proceedings may be complex and require legal representation, or there may be a risk of further harm or abuse to a child who participates directly in proceedings involving allegations of abuse.112 Article 5 para. 2 OPIC also postulates that representation of the child with respect to an individual complaint procedure before the CRC Committee fundamentally requires the consent of the child being represented.113 An exception is only permitted when the child, out of fear of repression, cannot give consent to the representation.114 With respect to the direct participation of children in proceedings, the CRC Committee suggests that a child should preferably not be heard in open court but under conditions of confidentiality.115 However, a presumption in favour of a closed court requires scrutiny, since the publicity of hearings is an important safeguard in the interest of the individual and society at large against secret proceedings and arbitrariness.116 The guarantee of a public hearing aims also to build confidence by allowing the public to see 21

107 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 421. 108 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 400. 109 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 431. 110 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 35. 111 CRC Committee, General Comment No. 12, CRC/C/GC/12 2009, para. 35. 112 See L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 424. 113 See → Individual Communications Procedure mn. 4. 114 See Circular of the Bundestag (Bundestags-Drucksache) 17/10916, p. 20. 115 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 43. 116 See Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), 13 April 1984, para. 6. See also ECtHR, Judgment of 26 March 1996, No. 20524/92, para. 69 – Doorson v. The Netherlands; Judgment of 25 February 1997, No. 22009/93, para. 77 – Z v. Finland. Further see S Schmahl, Procedural Rights and Article 6 ECHR, in: S Kadelbach (ed.), 70 Years of Human Rights and the Rule of Law in Europe, 2021, forthcoming.

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justice being administered. 117 Hence, the suggestion expressed by the CRC Committee is too general and does also contradict the requirements of Article 40 para. 2 lit. b CRC. 118 Possible representatives of the child include parents, a single parent or lawyers as legal 23 representatives, but also guardians and advisers or any other professional such as a social worker.119 Thus, it is clear that representation of a child is not confined to representation by a qualified lawyer, although there might be cases in which it is necessary that a legal professional provides the child with legal advice and representation.120 This distinction is clearly made by the CRC Committee which recommends that in cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation in a child-friendly manner by professionals with specialised knowledge of children and migration issues.121 Beyond these particular cases, in principle, anyone can represent a child provided that they act in accordance with the objective of Article 12 para. 2 CRC. This means that the representation must be independent, competent and act in the best interests of the child.122 The representative, be it a guardian, an adviser, a child’s advocate or any other person, should generally be a childcare professional and shall exclusively represent the child’s best interests and not the interests of other persons, institutions or bodies. With respect to the issue of independence, the CRC Committee has explained that the representative must not have a conflict of interest but must act in a way that truly substitutes the will of the child.123 In this context, it must be noted that there may be conflicts between the interests of the child and the interests of the parents acting as their representatives. It is important that the true interests of the child are represented against the interests of those affected by the final decision. 124 Therefore, States Parties are called upon to draw up codes of conduct, to which the persons entrusted to represent the interests of the child must comply. 125 In addition, it is necessary with respect to the issue of competency that the representatives of the child sufficiently understand the course of the proceedings and the decision-making process and that they have the experience to work with children.126 The requirement of competency further demands that the child’s views are transmitted correctly to the decision-maker by the representative.127

117 See ECtHR, Judgment of 8 December 1983, No. 7984/77, para. 21 – Pretto v. Italy. For more detail see B Rainey/E Wicks/C Ovey, The European Convention on Human Rights, 7th edn. 2017, p. 300. 118 See → Article 40 mn. 24. 119 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 36. 120 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 435. 121 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 36; CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 16. 122 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 427. 123 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 36-37. 124 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 96. See also A Parkes, Children and International Human Rights Law, 2014, p. 94. 125 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 37; General Comment No. 14, CRC/C/GC/14, 2013, para. 96. 126 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 36. 127 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 36.

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3. Representation in a Manner Consistent with the Procedural Rules of National Law 24

According to Article 12 para. 2 CRC, the hearing of the child’s representative needs to be conducted only in accordance with the procedural rules of national law. However, this leeway given to the Contracting States must not be interpreted as absolute permission to apply national rules that restrict or impede the exercise of the right in Article 12 para. 2 CRC. On the contrary, the clause should be understood to play an enabling role whereby domestic procedural rules are created to facilitate the capacity of children to effectively enjoy their right to participate in judicial and administrative proceedings which affect them.128 The CRC Committee vividly encourages States Parties in particular to apply to children the basic rules of due process, such as the right to defence.129 If these essential rules are not respected, the decision must be capable of being remedied in national law.130

IV. Child’s Right to Express Views at all Stages of the Decision-Making Process The rights conferred by Article 12 CRC must be observed and enforced throughout all various stages of the decision-making process in any judicial and administrative proceedings.131 This means, firstly, that already in the preparation of a decision the child must be adequately informed of the right to express views and the right to a fair hearing. The child must be informed about the possibility to express him- or herself either directly or through a representative. This includes informing the child in advance of possible consequences flowing from his or her choice and about the place, the time, the manner and the participants at the hearing. However, the fact that an unaccompanied foreign person was not assigned a guardian or representative to defend his or her interests as a possible child on arrival or during the age-determination process to which he or she was subjected is in breach of Articles 3 and 12 CRC.132 The CRC Committee considers that States Parties should appoint a qualified legal representative, with the necessary linguistic skills, for all young persons claiming to be minors, as soon as possible on arrival and free of charge. Failure to do so implies a violation of the best interests of the child and their right to be heard at all stages of the decision-making process, including the age-assessment procedure.133 26 The circumstances of the hearing must be chosen in a way that it is possible for the child to exercise the rights arising from Article 12 CRC. The child must be informed that the persons conducting the hearing are willing to listen seriously and carefully to the views expressed and to take them into consideration. This is best achieved if the 25

128 See L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 431. 129 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 38. 130 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009 para. 39. 131 As regards the following paragraph see, in detail, CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 40-47. 132 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 21; N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.9; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.9. 133 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.8; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.8; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.7. See also → Article 1 mns. 10 et seq and → Article 22 mn. 17.

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hearing takes the form of a conversation or dialogue rather than a one-sided questioning or public hearing.134 The realisation of the right to express views additionally requires that the decision has to take the views of the child into account effectively.135 Children must be notified to what extent their views have been taken into consideration when the decision was made, and the influence these views had upon the decision. This requirement aims to ensure that the right of the child is not taken as a mere formality, but rather as a significant aspect of the decision.136 Finally, the right conferred by Article 12 CRC can only be implemented fully if children, insofar as they are affected by the decision, have access to legal remedies. In administrative or judicial proceedings such opportunities include particularly appeals and complaints procedures. It must be ensured that the child is not disadvantaged against adults upon seeking legal redress. Furthermore, the CRC Committee obliges States Parties to ensure that all decision- 27 making processes which involve children meet certain minimum requirements. 137 Accordingly, all proceedings shall be child-friendly, transparent and informative in regards to their external circumstances and procedures. The child’s participation must be voluntary. In addition, a respectful treatment of the views of the child concerned must be ensured.138 All adults who are involved in proceedings have to be trained adequately. The CRC Committee urges the States Parties to adapt their national rules to these conditions and mechanisms and to combat negative attitudes in society towards the child’s right to express views.139 In civil proceedings affecting the child, the States Parties have a particular obligation 28 to realise the right of children to be heard.140 For example, the entire national legislation on divorce and separation of parents should contain a right of the child to be heard, pursuant to which not only the age, but also the individual maturity of the child is decisive for the extent of the participation. In this context, the child's utterances must be understood in the developmental and family context.141 A decision based on custody and accession proceedings, which is child-friendly in accordance with Article 3 CRC, is only possible when the opinion of the child is taken into account. This is so even in the case of parental consent.142 The same applies to matters of adoption or separation of the child from the parents. In criminal proceedings, it is essential that the child is guaranteed due process rights 29 at every stage of the proceedings (see Article 40 CRC). If a child is suspected or accused of a crime he or she must be informed of the allegations, the proceedings and the possible measures that the court may impose without delay and in a manner he or she understands.143 Already before the start of the proceedings children have to be informed about their rights to silence in relation to the police, the prosecutor and the investigating

CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 43. CRC Committee, Concluding Observations: Denmark, CRC/C/DNK/CO/2, 2005, para. 28. 136 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 44. 137 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 134. 138 As for the differentiation between consultative and decisive/determinative effects of the will and wishes of the child see F Wapler, Kinderrechte und Kindeswohl, 2015, p. 435 seq. 139 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 48 et seq. 140 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 50-56. 141 N Ivanits, Keine Beteiligung des Kindes bei elterlichem Einvernehmen?, Neue Zeitschrift für Familienrecht 2016, p. 7, at 8. 142 See → Article 12 mn. 17. 143 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 58. For more detail see → Article 40 mn. 12. 134

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judge. Negotiations and other hearings during proceedings should be in a child-friendly setting.144 30 If children are victims or witnesses in criminal proceedings, they must be given the right to a fair hearing in accordance with ECOSOC Resolution 2005/20, which sets out concrete guidelines for the protection of child victims and witnesses of crime in judicial procedures.145 Similar safeguards exist in the Guidelines of the CoE Committee of Ministers on child-friendly justice.146 Additional precautions apply to (allegedly) abused children.147 In addition, information must be passed on to the child concerning his or her participation in the investigation of the offence and in the court proceedings, available health, psychological and social services, the specific places and times of hearings, the available protective measures and the possibility of compensation and legal representation.148 Finally, the States Parties have an obligation to enact laws, in which compliance with the requirements of Article 12 CRC is also stipulated in relation to administrative proceedings.149

V. Child’s Right to Express Views in Varying Life Circumstances Over and above judicial and administrative proceedings, the rights emanating from Article 12 CRC are applicable additionally to other areas and life situations of the child. In all matters affecting the child, the child must be admitted to participate in the decision process. The most important area of life for a child is his or her family. The States Parties must, therefore, ensure that the right contained in Article 12 CRC is respected without discrimination in the sense of Article 2 para. 1 CRC.150 To achieve this positive duty to protect the child’s best interests without discrimination, the CRC Committee recommends the establishment of programmes designed to assist parents in the upbringing of their children.151 In particular, the following elements should be included within such programmes: the mutual respect between parent and child, the consideration of views of all family members, the child’s involvement in decisions, consideration of the evolving capacities of the child, as well as methods to enable conflict resolution within the family. In cases where children are cared outside of the family, States Parties should also guarantee the implementation of the right in Article 12 CRC through the enactment of corresponding legislation. In respect to these matters, affected children must be informed about the care and their right to express views.152 32 In regards to health care (see Article 24 CRC), the implementation of the child’s right to express views has to be respected by States Parties, too.153 Accordingly, children must be involved in decisions regarding their own health and are entitled to all information concerning planned treatment and its consequences. This applies, in principle, also to 31

144 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009 para. 61. For more detail see → Article 40 mn. 9. 145 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 62. 146 Committee of Ministers of the Council of Europe, 1098 th Meeting, of 17 November 2010, Annex 6, paras 64-74. 147 See → Article 32 mn. 11, → Article 34 mn. 10. 148 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 64. 149 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 65. 150 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 90-96. 151 As to the following see CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 93; Concluding Observations: Maldives, CRC/C/MDV/DO/4-5, 2016, para. 21. See also → Article 18 mn. 2. 152 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 97. 153 See CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 98-104. For a fuller account see → Article 24 mns. 3, 5.

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cases of male circumcision, although an infant or toddler does not have the necessary insight to give the justifying consent to the bodily harm involved. Hence, in these cases, the parents are granted authority to give representational consent on behalf of their child.154 Whether a religiously-motivated circumcision can or must be delayed until the child has attained the necessary maturity to decide himself to have a physically visible sign of his religious group membership,155 is a question that must be answered in the light of Article 14, Article 24 para. 3 and Article 30 CRC, conclusively.156 Incidentally, it should be noted that other significant interferences in the physical integrity of a child too immature to give consent, such as cosmetic surgeries on the ears or nose or even stem cell donation (donation of bone marrow) in favour of a first-degree relative, are considered to be admissible if the legal representative consents hereto. 157 The child has to be involved only in the decision-making process as far as possible. However, as the age and maturity of the child increases, so increases the emphasis and due weight placed upon his or her will and wishes to consent or refuse a medical operation.158 Furthermore, States Parties should ensure that children have access to medical advice 33 regardless of their age and possible parental consent. This is especially important in cases where children require medical attention due to abuse or violence experienced in the home, or are in need of reproductive health education or services, or in case of conflicts between parents and the child over access to health services.159 In these cases, States Parties need to introduce legislation or regulations to ensure that children have access to confidential medical counselling and advice without parental consent where this is needed for the child’s safety or well-being irrespective of the child’s age. 160 In addition, States and their agents must develop reasonable and sensitive measures to enable children to participate in the development and implementation of individual measures and collective initiatives geared to their health needs.161 The CRC Committee explains that this requirement applies to individual health-care decisions as well as to children’s involvement in the development of health policy and services.162 In both cases, children should be provided with information about proposed treatments and their effects and outcomes.163 According to the CRC Committee, the education sector is another area in which the 34 right contained in Article 12 CRC must be implemented (see Articles 28 and 29 CRC). The participation of children is to be achieved through class councils, student councils or committees, where children can express their own views through the development and implementation of school policy.164 In addition, children should also play a role in the development of education policies at local and national levels, by having the 154 See K-A Schwarz, Verfassungsrechtliche Aspekte der religiösen Beschneidung, JuristenZeitung 2008, p. 1125, at 1128; B Rox, Anmerkung zu LG Köln vom 7.5.2012, JuristenZeitung 2012, p. 806, at 807 et seq. 155 This is the view expressed by the Regional Court Cologne, Judgment of 7 May 2012, 151 Ns 169/11, para. 14. 156 See → Article 14 mn. 15, → Article 24 mn. 29. 157 For more detail see AK Weilert, Das Kindeswohl und die Knochenmarkspende Minderjähriger aus verfassungsrechtlicher Perspektive, Rechtswissenschaft 2012, p. 292, at 293 et seq. 158 See AK Weilert, Das Kindeswohl und die Knochenmarkspende Minderjähriger aus verfassungsrechtlicher Perspektive, Rechtswissenschaft 2012, p. 292, at 314, 329. 159 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 101. 160 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 101. 161 J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 292. 162 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 11-12; General Comment No. 12, CRC/C/GC/12, 2009, para. 98. 163 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 100. 164 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 110.

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opportunity to express their views on teaching methods or educational structures.165 The CRC Committee stresses that children should also be heard in relation to school decisions that affect them personally.166 In that regard, participation contributes to the elimination of exclusion and enhances individual mobilisation efforts which are an integral part of the child’s right to development.167 35 In the view of the CRC Committee, many countries have the problem that the child's participation rights are not taken into account sufficiently in all areas of life. There are insufficient opportunities for children to participate in school or other social or political institutions.168 Also, political suffrage for children and young people is not provided by many national legal orders. In this context, the CRC Committee emphasises from time to time that a reduction of the voting age from 18 to 16 years is endorsed by the Convention as far as the young people concerned are sufficiently informed about their right to vote.169 However, this view expressed by the CRC Committee goes too far and is not borne by the text of the Convention. The Convention itself does not guarantee political voting rights for children, so that a change in the national legal situation is definitely not required by the Convention.170 Yet, if States Parties decide to decrease the voting age beneath 18 years on their own political initiative, they should in fact invest in measures that support adolescents to understand, recognise and fulfil their role as active citizens.171 36 Finally, the CRC Committee calls for an enhancement of the right to express views for unaccompanied or separated refugee children. Where age-assessment procedures and/or medical treatment measures are determined, the views and wishes of the child concerned must be considered.172 Moreover, the child must receive all the necessary information regarding all drop-in centres, asylum procedures, family tracing and the situation in their country of origin. The guarantees of Article 12 CRC apply to all immigrant and asylum-seeking children unless and until it is established that they are incapable of forming their own views.173 As far as necessary, a translator, an interpreter or at least a linguist should be consulted.174

VI. Relationship Between the Right to Express Views in Article 12 CRC and Other Provisions of the Convention 37

According to Article 12 CRC, the child’s right to express views and to a fair hearing represents, in addition to Article 2, Article 6 and Article 3 CRC, one of the fundamental 165 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 111. See also L Lundy/ P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 271. 166 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 113. 167 N Peleg, The Child’s Right to Development, 2019, p. 152-153, 196 et seq. 168 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 28 et seq. 169 See, e.g., CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, paras 3, 28. 170 See M Freeman, A Magna Carta for Children? Rethinking Children’s Rights, 2020, p. 45-46. Different opinions are expressed by M Liebel, Kinderrechte – aus Kindersicht, 2009, p. 147 seq.; A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 255; J Doek, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 257, at 271 et seq. 171 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 34. 172 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 25. 173 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 434. Further see → Article 22 mn. 17. 174 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 25; see also → Article 22 mn. 17.

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principles of the Convention.175 Therefore, it must be considered in the interpretation and application of all other Convention rights.176 No right guaranteed in the Convention can be completely and meaningfully implemented without due respect to the rights contained in Article 12 CRC.177 The right to express views, as guaranteed in Article 12 CRC is prescribed in the form 38 of participation rights in numerous other provisions of the CRC. These norms form leges speciales in their substantive field and thus take precedent over the general provision in Article 12 CRC, to the extent that the norm is specifically relevant in a given context. This applies, for example, in case of Article 40 para. 2 lit. b (ii) CRC. 178 Article 23 para. 1 CRC also obliges States Parties to ensure the right of children with disabilities to participate actively in community life. Similarly, children with mental or emotional disabilities should be given a say in any medication.179 Measures should also be taken in court to ensure that children with disabilities are given equal attention in all matters concerning them, such as children without disabilities.180 Article 31 para. 1 CRC provides a right to a child’s involvement in decisions about recreation and relaxation.181 Moreover, Article 12 CRC is particularly closely connected to Article 13 and Article 39 17 CRC. However, the right to freedom of expression and of information may not be equated with the right to express views in Article 12 CRC. The right to freedom of expression and information is the freedom of a person to have their own opinions and to express them freely, as well as the right to search for and retain information which, for example, is available in the media.182 In contrast, Article 12 CRC refers to the rights of children to express their views regarding matters affecting them, and to be involved in decisions that have an impact on their life.183 While Article 12 CRC obliges the States Parties to actively create laws and mechanisms to facilitate the child’s participation, Article 13 CRC is conceived primarily as a classic defensive right against arbitrary and/or unlawful State interference.184 Article 12 CRC is one of the few international human rights that are enjoyed exclusively by children (because, in practice, they have often been denied the right to form and express an opinion), whereas adults also enjoy the right to express their views and opinions under the right to freedom of expression. However, there is no explicit obligation on States under international law to seek actively such views and treat them seriously. It is only Article 12 CRC which involves an active obligation on States Parties to facilitate the actual expression of the child’s views and give them due weight.185 At first glance, the relationship between Article 12 and Article 3 CRC could be 40 problematic or even contradictory, since Article 3 CRC enshrines the principle of the best interests of the child which has usually been determined by adults. Thus, while Article 12 CRC seeks to ensure due consideration of the child’s views, Article 3 CRC CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 2. CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 17. 177 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 68. 178 See also → Article 40 mns. 12 et seq. 179 See → Article 23 mn. 17. 180 See FRA, Violence against children with disabilities: legislation, policies and programs in the EU, 2015, p. 26 f, with reference to Article 12 CRC. 181 See → Article 31 mn. 4. 182 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 81. See also → Article 13 mn. 3; → Article 17 mn. 17. 183 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 81. 184 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 81. For more detail see → Article 13 mn. 4. 185 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 402. 175

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requires prima facie an adult to undertake an assessment of the child’s best interests. 186 For a long time, it has been argued that the views of the child do not necessarily reflect his or her well-being. However, according to the CRC Committee, there is no tension between the provisions of Article 3 CRC and Article 12 CRC. Instead, the provisions complement each other in the way that Article 3 CRC establishes the objective of realising the best interests of the child to the largest possible extent, while Article 12 CRC opens up a meaningful route to achieve this aim by prescribing that the child must have a say regarding his or her affairs and matters affecting him or her and always be heard.187 In other words, the view expressed by the child is to be given due consideration when determining the child’s best interests in the sense of Article 3 CRC. 188 For this reason, Article 2 OPIC expressly provides that, with respect to individual communications procedures, the CRC Committee should concentrate upon the interests of the child and, furthermore, should pay appropriate attention to the views of the child. The correlation between the best interests of the child and the participation of the child is also particularly evident in access and custody procedures. Even with parental consent, Article 12 CRC does not leave room for refraining from having the child concerned be heard.189 Sociological studies evidence that when the child is involved personally in the proceedings regarding the rights of access or custody, arrangements often differ from those of parents when negotiating alone. But the compromise between parents and children is usually more sustainable and better serves the child's well-being.190 41 The right to express views in Article 12 CRC is also important in relation to Article 2 and Article 5 CRC. Thus, pursuant to Article 12 CRC, read in conjunction with Article 2 para. 1 CRC, States Parties are especially obligated to ensure equal treatment. In particular, girls must not face more restrictions than boys in the exercise of their right to express views.191 Also, within the exercise of parental rights under Article 5 CRC, the personal abilities of the child which in turn influence the right to express views under Article 12 CRC, are to be considered.192 The more knowledge, experience and understanding the child has, the less necessary is parental guidance. The right conferred by Article 12 CRC thus becomes increasingly important as the development of child progresses, while the right of parents in Article 5 CRC correspondingly decreases. 193

VII. Embedding of Article 12 CRC into the System of International Human Rights Protection 42

Article 12 CRC provides innovative guarantees to an extent not witnessed in any previous international human rights treaties.194 Thus, although Article 19 UDHR, ArtiSee C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 396. CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 43, 74; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 37. 188 See also → Article 3 mn. 12. 189 N Ivanits, Keine Beteiligung des Kindes bei elterlichem Einvernehmen?, Neue Zeitschrift für Familienrecht 2016, p. 7, at 8. See also → Article 12 mn. 17. 190 See N Ivanits, Keine Beteiligung des Kindes bei elterlichem Einvernehmen?, Neue Zeitschrift für Familienrecht 2016, p. 7, at 12. 191 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 77. 192 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 84 et seq. See also E Rossa, Kinderrechte: Das Übereinkommen über die Rechte des Kindes im internationalen und nationalen Kontext, 2013, p. 17, 87. 193 See → Article 5 mn. 11. See also F Wapler Kinderrechte und Kindeswohl, 2015, p. 248. 194 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 1. 186

187

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Art. 12

cle 19 ICCPR and also Article 10 ECHR all stipulate a universal right of freedom of expression, none of these conventions contain a right corresponding to Article 12 CRC. Even other international conventions which provide a child’s right to express views, such as Article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction,195 regularly limit this right to certain situations.196 Only non-binding declarations adopted by the UN General Assembly, such as the 2007 Declaration on the Rights of Indigenous People (Article 6) include a similar participation right, giving voice and empowering marginalised groups in society.197 This reflects the reality that the focus of international conventions was, for a long time, children’s welfare and not their evolving autonomy.198 However, after the entry into force of the CRC, Article 12 CRC has emerged as one 43 of the most influential of the Convention’s provisions in international law. It has been adapted and included in subsequent human rights conventions, for instance in Article 7 para. 3 ICRPD and in Article 7 ACRWC. At European level, a child’s right to express views has also been established widely. For example, in cases of custody and access, the ECtHR has stated on several occasions – sometimes with explicit reference to Article 12 CRC – that children, even if they are young, have a say in all matters affecting them according to their ability of understanding and maturity.199 Even in cases where the withdrawal of life-sustaining medical treatment is at stake, the ECtHR underscores that the patient’s wishes, irrespective of being an adult or a minor, are of paramount importance. If the patient cannot express his or her own wishes, it must be ensured that his or her wishes are expressed through the legal guardians or an independent professional.200 In addition, according to Article 1 para. 2 of the 1996 European Convention on the Exercise of Children’s Rights, children themselves or through other representative persons or bodies must be guaranteed a participation right in proceedings before a judicial authority in which they are personally affected. Under Article 3 of this Convention, in court proceedings every child has the right to receive all relevant information and to be heard. These rights are also set out and concretised in the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.201 Also Article 24 para. 1, sentences 2 and 3 of the EU Charter of Fundamental Rights is based upon the participation of children in decision-making processes affecting them202 and is therefore

See also → Article 11 mn. 8. S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 219. 197 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 148. 198 L Lundy/J Tobin/A Parkes, Article 12, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 397, at 398. 199 See ECtHR, Judgment of 23 September 1997, No. 19823/92, para. 61 – Hokkanen v. Finland; Judgment of 20 October 2011, No. 13279/05, para. 73 – Sahin v. Turkey; Judgment of 3 September 2015, No. 10161/13, para. 181 – M. and M. v. Croatia. 200 ECtHR, Judgment of 5 June 2015, No. 46043/14, paras 147-148 – Lambert and Others v. France; Decision of 27 June 2017, No. 39793/17, paras 83 et seq. – Charles Gard and Others. v. The United Kingdom. See also → Article 6 mn. 22. 201 CoE Committee of Ministers, 1098th Meeting, 17 November 2010, Annex 6, paras 64-74. Further see S Schmahl, Report on Child-Friendly Justice: Existing International and European Standards, in: Council of Europe, Directorate General of Human Rights and Legal Affairs (ed.), Compilation of texts related to child-friendly justice, May 2009, p. 20, at 30. 202 See T Marauhn in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mn. 17; A-M Böhringer, Schutz des Kindes und Jugendlicher, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 45 mn. 12; C Steindorff-Classen, Europäischer Kinderrechtsschutz nach dem Reformvertrag von Lissabon, Europarecht 2011, p. 19, at 31. 195

196

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clearly inspired by Article 12 CRC.203 Although the will and wishes of the child are not the sole determinants, the CJEU is very clear in that it is necessary to seriously listen to the children's views in matters affecting them according to their age and maturity. 204

Article 13 [Freedom of Expression and Freedom of Information] 1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice. 2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or (b) For the protection of national security or of public order (ordre public), or of public health or morals. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Freedom of Expression and Freedom of Information (Article 13 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Scope of the Right to Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Scope of the Right to Freedom of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Possible Restrictions to the Freedom of Expression and the Freedom to Information (Article 13 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 13 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 4 7 11 16

I. Generalities Article 13 CRC is a classic civil and political right against arbitrary and/or unlawful State interference. The provision guarantees, alongside the right to express own views in Article 12 CRC, one of the most basic human rights.1 The procurement of information and the expression of an opinion are prerequisites for the assertion of numerous other rights. The right to freedom of expression is an important aspect of participation based on human dignity and equality. It is central to the self-fulfilment and autonomy of individuals.2 Furthermore, freedom of expression is regarded as the cornerstone of any democratic society, and is considered to be critical to the attainment of truth within the marketplace of ideas.3 2 The explicit guarantee in Article 13 CRC in favour of the child has essentially duplicative character because this right is, inter alia, already enshrined in several universal and regional human rights treaties, such as Article 19 ICCPR, Article 21 ICRPD, 1

203 For more detail see S Schmahl, in: C Grabenwarter (ed.), Enzyklopädie Europarecht, 2 nd edn. 2021, § 21 mns. 99 et seq. 204 See CJEU, Judgment of 22 December 2010, C-491/10 PPU, ECLI:EU:C:2010:828, paras 64 et seq. – Aguirre Zarraga. 1 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 401. See also → Article 12 mn. 1. 2 J Griffin, On Human Rights, 2008, p. 32-37, 44 et seq. 3 See Human Rights Committee, General Comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 2011, para. 2.

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Article 10 ECHR and Article 13 ACHR. The wording of Article 13 CRC almost literally repeats the content of Article 19 para. 2 and para. 3 ICCPR. The travaux préparatoires to Article 13 CRC show that the standard is based on Article 19 ICCPR without its text being made particularly child-specific.4 The formulation adopted under Article 13 CRC therefore adds nothing new to the corpus of international law in a normative sense.5 Nevertheless, the inclusion of Article 13 CRC is essential for the creation of a comprehensive catalogue of protections benefiting the child, particularly given that the Convention has established its own monitoring expert panel, the CRC Committee, which specifically addresses the needs of children.6 Furthermore, freedom of expression for children is a core participatory right. It affirms children’s pre-existing entitlement to a universal right and presents the view of children as social actors, contrary to traditional views which limit children’s freedom of expression on the basis of dependency and vulnerability.7 Article 13 CRC is thus an attempt to arrest the ambivalence and neglect that has long characterised the treatment of children’s right to freedom of expression under international law,8 by recognising the right to freedom of expression as a right of a child which corresponds to the lived experiences of children and not to those of adults.9 The relationship between Article 13 CRC and Article 12 CRC is close, but the articles 3 are not identical. In the first instance, Article 12 CRC is limited in scope to those matters which affect children, whereas the scope of Article 13 CRC is limitless. Secondly, the rights enshrined in Article 13 CRC include the right to seek and receive information and ideas of all kinds without being limited to child-specific matters. Thirdly, Article 13 CRC occupies a normative space that is shared by adults, but still is applicable to children only in order to encompass particular experiences of children.10 The CRC Committee therefore explains that Articles 12 and 13 CRC should be understood as “allied rights” with each performing distinct, yet overlapping and complementary functions.11

II. Freedom of Expression and Freedom of Information (Article 13 para. 1 CRC) 1. Scope of the Right to Freedom of Expression Freedom of expression protects the child’s right to be able to express unhindered 4 and freely an opinion through either spoken words, writings or any other modes of expression. Expression does not need to possess particular qualitative characteristics. Article 13 para. 1 CRC refers to ideas of all kinds, and encompasses opinions, criticism, and speculative facts.12 In international law, it is widely accepted that the right to express 4 S Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression, Human Rights Law Review 10 (2010), p. 33, at 34, 38 et seq. 5 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 437. 6 See → Article 43 mn. 1. 7 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 402. 8 See J Shaub, Children’s Freedom of Speech and Expressive Maturity, Law and Psychology Review 36 (2012), p. 198-219. 9 See J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 437, with further references. 10 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 438. 11 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 68. 12 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 448.

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opinions extends from information to ideas that may be regarded as deeply offensive or which shock or disturb the State or any sector of the population.13 As addressed above,14 the wording of Article 13 para. 1 CRC is almost identical to Article 19 para. 2 ICCPR. Therefore, not only classical defence rights against unlawful State interference but also positive obligations of the State to protect and to fulfil the child’s right can be deduced from this standard if non-State actors disproportionately restrict the child's freedom of expression.15 Although a classic liberal conception of the right to freedom of expression would reduce the obligation to one of non-interference, the effectiveness principle demands that States must take active measures to respect, protect and fulfil the right enshrined in Article 13 CRC.16 The CRC Committee repeatedly urges States Parties to take all necessary measures to ensure the rights of Article 13 CRC. 17 These measures include the enaction of legislation that explicitly guarantees the freedom of expression,18 the pro-active promotion of education and awareness-raising in schools, State institutions and society in order to equip children with the skills necessary to impart information and ideas, 19 and measures to facilitate access to information for children, e.g., by child-specific media channels.20 Furthermore, the CRC Committee calls on States Parties to allow children to express themselves freely in children's magazines and in other media.21 The CRC Committee is also concerned about prevailing traditional cultural and societal attitudes in some Contracting States that make it difficult for children to freely express their views on public matters and recommends the adoption of positive measures to guarantee the right to freedom of expression for children of all ages within the family, in school and other institutions and in their communities, in accordance with the Convention.22 5 It is striking that the content of Article 19 para. 1 ICCPR, which also protects the unrestricted holding of opinions as a condition precedent to the freedom of expression, is not fully reflected in Article 13 CRC. The reasons for this omission are not clearly ascertainable from the travaux préparatoires of the Convention. 23 Throughout the negotiations, there were efforts to transpose Article 19 ICCPR in its entirety into Article 13 CRC.24 It is possible, however, that the negotiating States wished to avoid an overlap with Article 14 CRC which provides children with a right to freedom of 13 See the landmark decision of the ECtHR in the case Handyside: ECtHR, Judgment of 7 December 1976, No. 5493/72, para. 49 – Handyside v. The United Kingdom. 14 See → Article 13 mn. 2. 15 CRC Committee, Concluding Observations: Argentina, CRC/C/SR.178, 1994, para 40; Georgia, CRC/C/SR.914, 2003, para. 44. 16 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 451-452. 17 See, e.g., CRC Committee, Concluding Observations: Bahrain, CRC/C/BHR/CO/2-3, 2011, para. 41; Cuba, CRC/C/CUB/CO/2, 2011, para. 33; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 39. 18 CRC Committee, Concluding Observations: Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 39; Kazakhstan, CRC/C/15/Add.213, 2003, para. 35; Georgia, CRC/C/15/Add.222, 2003, para. 28. 19 CRC Committee, Concluding Observations: Algeria, CRC/C/DZA/CO/3-4, 2012, para. 36; Turkey, CRC/C/15/Add.152, 2001, paras 33 et seq.; Democratic Republic of Congo, CRC/C/15/Add.153, 2001, para. 24; France, CRC/C/15/Add.20, 1994, para. 23; Denmark, CRC/C/DNK/CO/4, 2011, para. 37. 20 CRC Committee, Concluding Observations: Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 36; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 47. 21 CRC Committee, Concluding Observations: Mauritius, CRC/C/SR.333, 1996, para. 18; Uruguay, CRC/C/SR.1235, 2007, para. 16. 22 CRC Committee, Concluding Observations: Botswana, CRC/C/BWA/CO/2-3, 2019, paras 31-32. 23 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 236. 24 See Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, paras 40, 44. Further see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 234 et seq.

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thought, conscience and religion.25 But these are mere speculations. It has also been suggested that the omission was more likely an accident than deliberate. 26 In any event, even if it may seem inconsistent that the right to hold opinions is not included in Article 13 CRC, the lack of this element does not result in a substantive reduction of children’s rights. This is because, firstly, forming and holding a certain opinion is purely an internal and private thought-process which (at least as of today) is absolute and cannot be controlled or restricted by others. 27 Secondly, the holding of an opinion represents a necessary condition to the exercise of the right to freedom of expression, which as a public matter of social importance is in fact guaranteed in Article 13 CRC. A child cannot express an opinion without the freedom to form that opinion.28 In addition, the formation and holding of an opinion, as internal processes, are protected under the expressly recognised freedom of thought in Article 14 para. 1, sentence 1 CRC. The CRC Committee has pointed to this close connection between Article 13 and Article 14 CRC. 29 Therefore, even in regards to Article 13 CRC, an implicit protection of freedom to form opinions may be assumed.30 Likewise, the CRC Committee considers the freedom to form opinions, alongside the freedom of expression and further rights, as fundamental guarantees of the CRC.31 It is also noteworthy that Article 13 CRC does not refer to either Article 5 CRC 6 or Article 14 CRC, which means that the general leadership and parenting function of parents are not mentioned. Rather, the freedom of expression of the child is closely related to Article 12 CRC. Its scope extends, in principle, to all children irrespective of their age and maturity.32 According to the CRC Committee, the entire Convention, including freedom of expression, is aimed at recognising the child as the holder of individual rights.33 In contrast to Article 12 CRC, which does not contain any possibility of permissible restrictions because it relates to children's own affairs and matters affecting them, Article 13 CRC, which is primarily designed as a classical civil right against State interference, provides possibilities to limit its scope in paragraph 2.34

2. Scope of the Right to Freedom of Information Pursuant to Article 13 para. 1 CRC, the right to freedom of expression includes a 7 comprehensive and even cross-border freedom of information. This is underlined by the phrase “regardless of frontiers”. The explicit reference to the irrelevance of national, geopolitical, social and cultural frontiers highlights the universal claim of Article 13

25 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 13.09. In detail see → Article 14 mn. 5. 26 See H Thorgeirsdóttir, in A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 13, 2006, Article 13, p. 22. 27 See K-J Partsch, in L Henkin (ed.), The International Bill of Rights, 1981, p. 233, at 235 et seq. 28 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 442. 29 CRC Committee, Concluding Observations: Morocco, CRC/C/SR.881, 2003, para. 59. 30 H Thorgeirsdóttir, in A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 13, 2006, Article 13 mn. 42 et seq. 31 CRC Committee, Concluding Observations: Nicaragua, CRC/C/15/Add.108, 1999, para. 28. 32 See J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 1055 et seq. Critical assessment by S Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression, Human Rights Law Review 10 (2010), p. 33, at 37 et seq. 33 CRC Committee, Concluding Observations: Barbados, CRC/C/15/Add.103, 1999, para. 18. 34 See J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 1055 et seq.

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para. 1 CRC.35 This approach is further supported by the words “or through any other media of the child’s choice”, which confirms that the freedom to information is not limited to the media specifically mentioned in the provision, and thus also applies to electronic information via the ubiquitous Internet. Like freedom of expression, freedom of information includes both defence rights against unlawful State interference and positive obligations of the States Parties to ensure the enjoyment of the right. States Parties are encouraged to provide children with access to information so that they can participate properly in social development. Subject to the restrictions contained in Article 13 para. 2 and Article 17 CRC, the norm extends to printed as well as to electronic information.36 8 The CRC Committee has so far not sought to comment on the specific meaning of the freedom of information. However, it is clear that the scope of the right to freedom of information is broad and includes the freedom to seek, receive and impart information. The right to seek information can be defined as an active part of the freedom of information.37 It involves the unhindered procurement of information and the active inquiry on the part of a child. The right to seek information equips children with an essential tool for their evolving capacities, namely the tool to inform themselves and to become informed.38 In addition, the right to seek information establishes the positive obligation of the States Parties to proactively provide information which is in the public interest or is of legitimate importance to the individual.39 Of particular importance for children is the right to seek and receive information relating to their personal identity such as in the fields of adoptions, surrogacy and residency in orphanages. Active freedom of information can even be interpreted as a right to information about one’s origin, biological parents and siblings.40 However, these rights are guaranteed more specifically in Article 7 CRC.41 9 The active function to seek information is complemented by the passive freedom of information which means the right of the child to receive information. The Convention imposes a positive obligation on States Parties to ensure access to material in a range of contexts, for instance in the context of the child’s right to education under Article 28 and Article 29 CRC as well as in the context of diversity of the media in Article 17 CRC. All three articles reflect the fact that States Parties must actively generate and disseminate information that is specifically designed to contribute to the education and development of children.42 The right to receive information is generally understood as providing an entitlement to access information held by public authorities whether of a

35 See CRC Committee, Concluding Observations: Malta, CRC/C/15/Add.129, 2000, para. 28; Mexico, CRC/C/15/Add.112, 1999, para. 22. 36 CRC Committee, Concluding Observations: Portugal, CRC/C/SR.251, 1995, para. 15; Timor-Leste, CRC/C/SR.1289, 2008, paras 18, 37 et seq. 37 See H Thorgeirsdóttir, in A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 13, 2006, Article 13 mn. 41. 38 H Thorgeirsdóttir, in A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 13, 2006, Article 13, p. 21. 39 See ECtHR, Judgement of 19 February 1998, No. 14967/89, para. 53 – Guerra and Others v. Italy. See also, with regard to Article 19 ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 19 mn. 31. 40 See, e.g., the State party report presented by Albania, in: CRC/C/11/Add.27, 2004, paras 99 et seq., and the reaction by the CRC Committee in: Concluding Observations: Albania, CRC/C/15/Add.249, 2005, paras 36 et seq. 41 See → Article 7 mns. 16 et seq. 42 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 445.

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personal nature or more general information relating to the operation of government. 43 This includes access to information regarding sexual health that is consistent with the evolving capacities of the child.44 Thirdly, Article 13 para. 1 CRC protects the dissemination of information as a logical 10 consequence of active and passive freedom of information. The right to freedom of expression is generally associated with an entitlement to communicate and impart information and ideas of all kinds.45 The dissemination of information plays an important role in the area of politics. Since the CRC does not guarantee the child a political right to vote,46 this function unfolds its primary importance through the freedom of expression of dissenting political opinions and the hitherto related presentation and disclosure of information.47 Finally, it is to be noted that Article 13 CRC also guarantees the right to express information and ideas for which there is no intended recipient.48

III. Possible Restrictions to the Freedom of Expression and the Freedom to Information (Article 13 para. 2 CRC) A child’s right to freedom of expression and information is not absolute but can be 11 subject to restrictions. Article 13 para. 2 CRC introduces a uniform restriction clause applicable to both freedoms guaranteed in Article 13 para. 1 CRC and provides limitations on the basis of legislative reservations and legitimate purposes. Furthermore, limitations may be applicable where the parents or guardians of the child determine that it is necessary to protect the child from harm.49 Although Article 13 CRC does not establish childspecific barriers to the rights to freedom of expression and information, such limitations may be necessary in view of the age and maturity of the child. Such limitations do not run counter the general emancipatory character of the Convention, since they are inherent in Articles 3, 5, 12 and 17 lit. e CRC.50 The principle of internal system coherence demands that Article 13 CRC be interpreted in light of the other articles of the CRC. 51 If a State Party wishes to limit a child’s right under Article 13 para. 1 CRC, it carries 12 an onerous burden of demonstrating that the limitation is prescribed by law and necessary to achieve one or more of the aims listed in Article 13 para. 2 CRC.52 Article 13

43 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 443. 44 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 42. 45 See, e.g., Human Rights Committee, General Comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 2011, para.11. 46 See → Article 12 mn. 35. 47 H Thorgeirsdóttir, in A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 13, 2006, Article 13 mn. 97 et seq. 48 See J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 447-448. 49 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 469 et seq. 50 See → Introduction mn. 37. See also S Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression, Human Rights Law Review 10 (2010), p. 33, at 61 et seq. 51 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 469. 52 CRC Committee, Concluding Observations: Republic of Korea, CRC/C/15/Add.51, 1996, para. 26. Further see J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 455, 457.

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para. 2 CRC mirrors Article 19 para. 3 ICCPR.53 The phrase “provided by law” demands that a norm must be formulated with sufficient precision to enable the individual to regulate his or her conduct accordingly. It is within this context that the CRC Committee has expressed concern at vaguely worded limitation clauses, mostly of a religious character.54 As regards the permissible grounds of any limitation, the list in Article 13 para. 2 CRC is exhaustive. The restriction of freedom of expression and information with regard to the rights and reputation of others (Article 13 para. 2 lit. a CRC) results, in practice, mostly from a conflict with the freedom of expression of third parties. Other typical conflicts arise between the right to privacy, the freedom of religion of others (e.g., through blasphemous statements) or the prohibition of discrimination (e.g., prohibition of racial incitement).55 13 The possibilities of restriction mentioned in Article 13 para. 2 lit. a CRC are equally applicable to Internet communication as to the traditional expressions of opinion in the "offline world". However, in view of the triumphal procession of the so-called “new media”, restrictions on the freedom of expression and information of children are now particularly relevant in Internet-based communication. This is why the media clause of Article 17 CRC can be regarded as a barrier inherent in the Convention to the scope of Article 13 CRC.56 Children and adolescents are often unaware of the legal and extra-legal (i.e. psychological or sociological) consequences of their actions on the Internet. Communication via social media (e.g., Facebook, Instagram) is more susceptible to defamation, insults and "hate speech" than communication in the real world.57 Cyberbullying is also on the rise. The CRC Committee therefore demands that State measures should strike a fair balance between the child's freedom of expression and information and the protective obligations enshrined in Article 17 CRC.58 However, in the context of these limiting options, and in contrast to the scope of Article 13 para. 1 CRC, consideration must also be given to the increasing development of the child.59 14 Cases in which the freedom of expression and information are to be restricted in order to protect national security (Article 13 para. 2 lit. b, alternative 1 CRC) are present only when the exercise of the right in Article 13 para. 1 CRC creates or promotes a political or military threat to the existence of the nation or its territorial integrity or political independence.60 In view of these high hurdles, the protection of national security plays a clearly subordinate role in the area of children’s rights. The concept of public order in Article 13 para. 2 lit. b, alternative 2 CRC includes all universally accepted fundamental principles and rules upon which a democratic society is founded. However, they must themselves be in line with international human rights law and not completely under-

53 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 114-118. 54 See, e.g., CRC Committee, Concluding Observations: Iran, CRC/C/15/Add.123, 2000, para. 33. 55 Similarly, with regard to Article 19 para. 3 ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3 rd edn. 2019, Article 19 mn. 52. 56 Similarly, S Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression, Human Rights Law Review 10 (2010), p. 33, at 62 et seq. See also → Article 17 mn. 19. 57 H Steenhoff, Das Internet und die Schulordnung, Neue Zeitschrift für Verwaltungsrecht 2014, p. 1190 et seq. 58 CRC Committee, Concluding Observations: Japan, CR/C/SR.942, 2004, para. 49. See also → Article 17 mn. 15. 59 See also S Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression, Human Rights Law Review 10 (2010), p. 33, at 64 et seq. 60 Similarly, with regard to Article 19 para. 3 ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3 rd edn. 2019, Article 19 mn. 55.

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mine the right to freedom of expression and information.61 The CRC Committee explicitly includes the representation of scenes of severe violence.62 Since the concept of public order is broad, a restriction of freedom of expression and information should only be applied in strict compliance with the principle of proportionality. Restrictions upon expression and freedom of information on grounds of public health (Article 13 para. 2 lit. b, alternative 3 CRC) are admissible in cases of a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.63 With regard to children, this limitation is, in practice, primarily significant in respect to advertising bans concerning tobacco, alcohol, and certain medications or drugs.64 A typical example of a restriction of Article 13 para. 1 CRC to protect public morality pursuant to Article 13 para. 2 lit. b, alternative 4 CRC is the prohibition of pornographic and obscene publications. 65 Since the concept of public morality varies greatly over time and from one culture to another, States Parties are afforded a certain margin of discretion. However, this leeway must always be exercised in consideration of the indispensable purpose and furthest possible realisation of the child’s freedom of expression and information. In practice, the threshold for establishing that a limitation on a child’s right to free- 15 dom of expression and information is for a legitimate aim or pressing social need will be relatively low. The real issue is, therefore, whether the measures adopted to achieve the aim are necessary and conform to the principle of proportionality.66 This means that the measures taken must be appropriate to achieve their protective function, and they must be the least intrusive instrument amongst those which might achieve their protective function.67 If a State fails to satisfy these criteria, the interference with the child’s right to freedom of expression and information will constitute a violation of that right. To date, the CRC Committee has largely failed to examine the legitimacy of specific restrictions on a child’s right to freedom of expression. It has only generally expressed concern about restrictions on political activities undertaken by school children both on and off school campuses in the Republic of Korea, without going into further detail.68 The same is true with regard to the CRC Committee’s concern with rules that prohibit students from publishing materials that are critical of schools.69 However, it is uncontested in human rights law that States Parties bear the burden of proving the proportionality of the measure and they must never put in jeopardy the right itself.70

61 Particularly strict requirements must be placed on the necessity of a given statutory restriction based on “public order”, see M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 19 mn. 59. 62 CRC Committee, Concluding Observations: Gabon, CRC/C/SR.757, 2002, para. 28. 63 See ECOSOC, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, E/CN.4/1985/4, 28 September 1984, Annex, para. 25. 64 CRC Committee, Concluding Observations: Georgia, CRC/C/SR.915, 2003, para. 60; see also M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 19 mn. 60. 65 Similarly, with regard to Article 19 para. 3 ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3 rd edn. 2019, Article 19 mn. 62. 66 J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 460. 67 Similarly: Human Rights Committee, General Comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 2011, para. 34. 68 See CRC Committee, Concluding Observations: Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 41. 69 CRC Committee, Concluding Observations: Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 30. 70 Human Rights Committee, General Comment No. 34: Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 2011, paras 21, 35.

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IV. Embedding of Article 13 CRC into the System of International Human Rights Protection Freedom of expression and information is an indispensable, individual and politically aligned human right which is included in numerous international and regional conventions. The initial (non-binding) recognition at the international level was attained through Article 19 UDHR. This article acted as a predecessor for Article 19 ICCPR, which in turn served as a precursor to Article 13 CRC. The difference between these two norms lies in the fact that Article 19 ICCPR, unlike Article 13 CRC, also explicitly protects the freedom to form and hold opinions as an internal process.71 Also, the statutory prohibition of war propaganda and hate speech found in Article 20 ICCPR is lacking from Article 13 CRC. 17 Likewise, Article 10 ECHR takes its lead from the model Article 19 ICCPR. Although the wording of Article 10 ECHR is less detailed than Article 19 ICCPR, the ECtHR has developed a very detailed jurisprudence on its basis,72 which is by no means inferior to the content of any international guarantees. Two earlier decisions of the ECtHR even explicitly refer to the freedom of information of the child and its limitations: In the Handyside case, the prohibition of the "Little Red School Book", which also commented on issues of sexuality and drug abuse, was taken to protect the morality of the child and therefore deemed to be justified on the grounds of Article 10 para. 2 ECHR. 73 It is, however, doubtful whether this decision, which was adopted in 1976, could be reconciled with the contemporary understanding of a child’s right to seek information under Article 13 CRC and under a dynamic interpretation of Article 10 ECHR.74 In order to prevent the dissemination of confidential information, the limits imposed on the freedom of information of a housed child in a children’s facility, who sought full access to the files concerning it, were also considered justified by the ECtHR. 75 18 At the EU level, the freedom of expression and information is codified in Article 11 and Article 24 para. 1 of the EU Charter of Fundamental Rights and governs the participation of children in decision-making processes affecting them, but does not universally, nor even constitutively, protect the freedom of expression of the child. 76 The actual concern of Article 24 para. 1 of the EU Charter of Fundamental Rights is less the freedom of expression than rather the participation of children in decision-making processes that affect them.77 Article 11 of the EU Charter of Fundamental Rights, by contrast, guarantees the right to freedom of expression to everyone and does not take specific child-related needs into account. 16

See → Article 13 mn. 5. See ECtHR, Judgment of 12 September 2011, No. 28955/06 – Palomo Sanchez and Others v. Spain. For a fuller account see C Grabenwarter/K Pabel, Europäische Menschenrechtskonvention, 6 th edn. 2016, § 23 mns. 4 et seq. 73 ECtHR, Judgment of 7 December 1976, No. 5493/72, para. 52 – Handyside v. The United Kingdom. 74 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 135; J Tobin/A Parkes, Article 13, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 435, at 472. 75 ECtHR, Judgment of 7 July 1989, No. 10454/83, paras 49 et seq. – Gaskin v. The United Kingdom. 76 T Marauhn, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mn. 17. Dissenting, S Hölscheidt in: J Meyer (ed.), Charta der Grundrechte der EU, Kommentar, 5 th edn. 2019, Article 24 mns. 24 et seq. 77 A-M Böhringer, Schutz des Kindes und Jugendlicher, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 45 mn. 17. 71

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Article 14 [Freedom of Thought, Conscience and Religion] 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Freedom of Thought, Conscience and Religion (Article 14 para. 1 CRC) . . . . III. Parental Rights in Regard to the Freedom of Thought, Conscience and Religion (Article 14 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Legitimate Restrictions to the Freedom of Belief and Religion (Article 14 para. 3 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Embedding of Article 14 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 10 17 18

I. Generalities The right to freedom of thought, conscience and religion is one of the essential 1 elements of personal autonomy. It is, therefore, enshrined in numerous international human rights treaties such as Article 18 ICCPR and Article 9 ECHR. Its special status as a far-reaching and profound human right1 is further reflected by the fact that it is one of the few rights that remain non-derogable under Article 4 para. 2 ICCPR.2 Children are entitled to benefit of general human rights instruments, which include the right to freedom of thought, conscience and religion and extend this right to “everyone”. Nevertheless, Article 14 CRC opens up a new dimension of that right in countering the historical marginalisation of children’s enjoyment of the right. The general recognition of freedom of thought, conscience and religion for everyone, as stated in Article 18 ICCPR and Article 9 ECHR, usually leads only to a partial right of children to religious freedom, because the exercise of the right is widely dependent upon the parental right to educate and instruct their child in accordance with their own convictions. This becomes particularly clear, e.g., in the wording of Article 18 para. 4 ICCPR. But also, Article 2 para. 2 of Additional Protocol No. 1 to the ECHR understands religious education and information of the child primarily as parental right, which also has to be taken into account when formulating curricula for schools and State educational institutions.3 The ECtHR makes clear that the right to respect for family life and to religious freedom, as enshrined in Articles 8 and 9 ECHR, together with the right to respect for parents’ philosophical and religious convictions in education, as provided for in Article 2 of Additional Protocol No. 1 to the ECHR, convey to parents the right to communicate and

1 See Human Rights Committee, General Comment No. 22: Article 18 (Freedom of Thought, Conscience and Religion), CCPR/C/21/Rev.1/Add.4, 1993, para. 1. 2 S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 476-477. 3 S Bitter, in: U Karpenstein/F Mayer (eds.), EMRK, Kommentar, 2 nd edn. 2015, Article 2 of Additional Protocol No. 1 mn. 1.

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promote their religious convictions in bringing up their children.4 However, while the Court has accepted that this might even occur in an insistent and overbearing manner, it has stressed that it may not expose children to dangerous practices or to physical or psychological harm.5 The Court thereby explicitly turns to the CRC guarantees and the statements and recommendations made by the CRC Committee.6 2 In contrast, the explicit recognition of freedom of thought, conscience and religion in Article 14 CRC as a particular right of the child requires a child-specific interpretation of the guarantee.7 Religious education must generally be consistent with the child's beliefs.8 The right to believe or not to believe, and to act or not to act according to beliefs or convictions, is a key element of personal development and human dignity. It is also strongly linked to the development of a sense of identity and serves as a support system for stability and meaningful existence. The child’s right to freedom of thought, conscience and religion in Article 14 CRC which refers to children’s evolving capacities is, therefore, particularly closely connected to the right of the child to express own views according to Article 12 CRC and to the child’s right to privacy as guaranteed in Article 16 CRC.9

II. Freedom of Thought, Conscience and Religion (Article 14 para. 1 CRC) Pursuant to Article 14 para. 1 CRC, States Parties shall respect the child’s right to freedom of thought, conscience and religion. Whether the norm, in addition to the negative, defensive dimension of the right against arbitrary and/or unlawful State interference, also contains a positive obligation upon States to protect and fulfil the child’s right to freedom of thought, conscience and religion, has not been fully clarified by the CRC Committee so far. The travaux préparatoires of the Convention rather indicate that a narrow interpretation should be the appropriate form of interpretation. Many Contracting States expressed concerns on an understanding of Article 14 para. 1 CRC which could establish a duty to ensure and fulfil the child’s wishes and beliefs on the one hand, and an obligation to provide religious education at school on the other, as this would undermine the rights of parents and the separation of church and State.10 4 However, the CRC Committee, in its practical work, seems to not exclude the possibility of a positive obligation of the States Parties to protect the child’s beliefs. With reference to Article 14 para. 1 CRC, the CRC Committee speaks of an obligation of 3

ECtHR, Judgment of 12 February 2013, No. 29617/07, para. 37 – Vojnity v. Hungary. Ibid. See also ECtHR, Judgment of 22 March 2018, Nos. 68125/14 and 72204/14, para. 66 – Wetjen and Others v. Germany; Judgment of 22 March 2018, Nos. 11308/16 and 11344/16, para. 79 – Tlapak and Others v. Germany. See also → Article 19 mn. 7. 6 See ECtHR, Judgment of 22 March 2018, Nos. 68125/14 and 72204/14, paras 66, 73 – Wetjen and Others v. Germany; Judgment of 22 March 2018, Nos. 11308/16 and 11344/16, para. 79 – Tlapak and Others v. Germany. 7 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 43. 8 FRA, Handbook on European Law on the Rights of the Child, 2015, p. 38. 9 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 407. 10 See Commission on Human Rights, Report of the Working Group, E/CN.4/1984/71, 1984, paras 19 et seq. See also S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 242; A Holzscheiter, Children’s Rights in International Politics, 2010, p. 221 et seq. 4

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State authorities to ensure that religious freedom of the child is safeguarded. 11 It expresses concern that in some States Parties only mainstream religions are permitted and demands legislative recognition of religious beliefs not be limited to certain recognised faiths.12 The CRC Committee regularly stresses that States need to avoid and prevent discrimination on religious grounds.13 In particular, it emphasises that the States Parties must not harass children of religious minorities or restrict or deny their access to public schools or to religious festivals.14 Furthermore, the CRC Committee stresses that States Parties should invest in training of teachers and in the development of school curricula in order to promote cohesion among the different ethnic and religious communities and to combat religious intolerance.15 The practice of the CRC Committee, which seems to include not only the obligation to respect but also the duty to ensure and fulfil the child’s right to freedom of religion, is to be agreed with. It stands not only in line with the recommendations of several UN bodies16 but is also in conformity with the overall objective of the CRC. In the light of Article 2 para. 1 CRC, according to which States Parties shall respect and ensure the rights set forth in the present Convention, it is to be assumed that also Article 14 CRC imposes an immediate obligation on States Parties to take all reasonable measures not only to prevent State actors, but also non-State actors from unlawful interference with this right (duties to protect and to ensure) and further to fulfil and promote a child’s right to freedom of thought, conscience and religion.17 During the drafting of the Convention there was no discussion as to the meaning of 5 the terms “thought, conscience or religion”.18 Also, the CRC Committee has so far not sought to illuminate or define the meaning of these terms. However, with regard to other human rights instruments a general understanding of the terms can be mapped out.19 Freedom of thought means the right of everyone to develop autonomously thoughts free from impermissible external influence.20 Yet, freedom of thought according to Article 14 para. 1, alternative 1 CRC plays only a subsidiary role in practice. Freedom of thought is an absolute right and remains unaffected by parental rights and the possible restrictions in Article 14 para. 2 CRC. This is clear from the nature of the right: A “thought” can refer to anything and needs not to serve an ethical or moral conviction. A restriction brought about by State interference is almost factually impossible with the exception 11 CRC Committee, General Guidelines Regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 57. 12 See, e.g., CRC Committee, Concluding Observations: Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 32; Algeria, CRC/C/DZA/CO/3-4, 2012, paras 41-42; Nigeria, CRC/C/NGA/CO/3-4, 2010, paras 44-45. 13 CRC Committee, Concluding Observations: Cote d’Ivoire, CRC/C/15/Add.155, 2001, para. 23; Maldives, CRC/C/MDV/CO/3, 2007, paras 25-26; Iran, CRC/C/15/Add.123, 2000, para. 35; Uzbekistan, CRC/C/UZB/CO/3-4, 2013, paras 32-33. 14 CRC Committee, Concluding Observations: Jordan, CRC/C/15/Add.21, 1994, para. 12; Singapore, CRC/C/SGP/CO/2-3, 2011, paras 71-72; Lao People’s Democratic Republic, CRC/C/LAO/CO/2, 2011, para. 36; China, CRC/C/CHN/CO/2, 2005, paras 44-45; Algeria, CRC/C/DZA/CO/3-4, 2012, para. 41. 15 CRC Committee, Concluding Observations: Former Yugoslav Republic of Macedonia, CRC/C/MKD/CO/2, 2010, para. 66; Yemen, CRC/C/15/Add.102, 1999, para. 19; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 44. 16 See, e.g., Human Rights Council, A/RES/6/37, 14 December 2007, para. 9(b); A/HRC/25/58, 26 December 2013, para. 46. 17 See also S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 479 et seq. 18 See Commission on Human Rights, Report of the Working Group, E/CN.4/1984/71, 1984, paras 13-33. 19 Similar assessment by S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 483. 20 M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 18 mns. 9 et seq., Article 19 mn. 9.

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of the administration of psychoactive drugs, and indirectly through “brainwashing”.21 However, freedom of thought is relevant only until the idea is externalised through some kind of statement.22 From this point onwards, other rights become also applicable, such as the freedom of expression in Article 13 CRC.23 6 Different to the freedom of thought, freedom of conscience pursuant to Article 14 para. 1, alternative 2 CRC protects only beliefs with an indispensably ethical and moral character, meaning that the individual conviction has to possess sufficient cogency, seriousness, cohesion and importance.24 In contrast to the freedom of religion, the indispensable ethical or moral conviction has not necessarily any metaphysical element. The ethical and moral character of the conscience is determined in accordance with subjective criteria of the individual rights-holder and not upon any objective content or value.25 However, it remains unclear as to whether the right to freedom of conscience in Article 14 para. 1, alternative 2 CRC protects only the forum internum or whether the external exercise of the conscience (forum externum) also falls within its scope. 26 The latter alternative would mean that States Parties be prevented from adopting measures which conflict with the ethical and moral conviction of a child, because the restriction clause in Article 14 para. 3 CRC does not relate to the freedom of conscience. 27 However, in view of the drafting history and the overall purpose of the CRC, such a broad interpretation of the freedom of conscience has to be considered as excluded. 28 7 The term “religion” is to be construed broadly. It is not limited in its application to traditional religions or religions with institutional practices. It further encompasses also non-theistic, agnostic and atheistic beliefs as well as the right not to profess any religion or belief.29 However, in difference to the right to freedom of conscience, the freedom of religion under Article 14 para. 1, alternative 3 CRC includes only beliefs consisting of a metaphysical or supernatural element. Freedom of religion is clearly not limited to the forum internum, but rather extends into the forum externum by means of the freedom to practice and manifest religion.30 However, unlike Article 18 para. 1 ICCPR, for example, which has partially served as a model article, Article 14 para. 1 CRC contains no specification of the particular contents of religious freedom. Some drafting States, in particular Islamic States, were hesitant to provide the child a separate guarantee of religious freedom independent from or even against the will of parents.31 They rather favoured an understanding that the education of children be consistent with See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 18 mn. 10, Article 19 mn. 12. M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 19 mn. 9. 23 See → Article 13 mn. 5. 24 See K-J Partsch, in: L Henkin (ed.), The International Bill of Rights, 1981, p. 209, at 213-214. Similarly: ECtHR, Judgment of 7 July 2011, No. 23459/03, para. 110 – Bayatyan v. Armenia. 25 C de Jong, The Freedom of Thought, Conscience and Religion or Belief in the United Nations (1946-1992), 2000, p. 22. 26 See C de Jong, The Freedom of Thought, Conscience and Religion or Belief in the United Nations (1946-1992), 2000, p. 22; see also A Ungern-Sternberg, in: U Karpenstein/F Mayer (eds.), EMRK, Kommentar, 2nd edn. 2015, Article 9 mn. 11. 27 See → Article 14 mn. 17. 28 Similarly, ECtHR, Judgment of 29 April 1999, Nos. 25088/94, 28331/95 and 28443/95, paras 114 et seq. – Chassagnou and Others v. France; Judgment of 26 June 2012, No. 9300/07, para. 92 – Herrmann v. Germany. 29 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 14.04. 30 See E Brems, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 14, 2006, Article 14 mn. 41. See also ECtHR, Judgment of 1 July 2014, No. 43835/11, para. 125 – S.A.S. v. France; Judgment of 10 January 2017, No. 29086/12, para. 83 – Azizi Osmanoglu and Others v. Switzerland. 31 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 247. 21

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parental religious beliefs and convictions as recognised in other international human rights instruments. Furthermore, they were not prepared to concede that the provision should explicitly accord children the right to adopt or change their religion.32 Ultimately, these concerns did not dissuade the drafters from including Article 14 in the CRC. But they omitted, as a compromise, any specific reference to the right to adopt and manifest religion or belief, which is found in Article 18 para. 1 ICCPR.33 Nevertheless, Article 14 para. 1 CRC ensures, in any case, the right of the child to freely choose his or her religion or not to profess any religion or belief at all.34 Any other interpretation would erode the object and purpose of positive and negative freedom of religion as conferred by Article 14 CRC. Therefore, the CRC Committee regularly calls into question reservations by States Parties to Article 14 CRC on the ground that the broad and imprecise nature of the reservation potentially gives rise to infringements of freedom of religion and raises questions of compatibility with the object and purpose of the Convention.35 An individual’s choice of religion presupposes that the making of that choice is free 8 from coercion on the part of the State authorities or of other actors. Article 18 para. 2 ICCPR actually provides that no one shall be subject to coercion which would impair his or her freedom to have or to adopt a religion or belief of his or her choice. Curiously, unlike Article 18 ICCPR, Article 14 CRC does not include specific protection of the child against coercion. However, children remain entitled to this protection, since Article 14 para. 1 CRC obligates States Parties to respect the right of the child to freedom of religion – and coercion would simply be antithetical to freedom.36 From a practical perspective, however, children are particularly susceptible to coercion in the educational environment. Therefore, the CRC Committee was critical of a practice to place children in a religious institution without their will and without parental knowledge or consent.37 Of particular importance for religious freedom is the right to religious education. 9 Although originally foreseen in the draft of the Convention,38 it was abandoned in the course of a general compromise undertaken to avoid any specification of the scope of the freedom of religion. Due to its original incorporation and the lack of any indication for a revised understanding by the States Parties, Article 14 para. 1 CRC may be, however, held to implicitly cover the right to religious education.39 On the other hand, it could be argued that an obligation of the States Parties to provide religious education cannot be

32 See Commission on Human Rights, Report of the Working Group, E/CN.4/1983/62, 1983, para. 55; E/CN.4/1989/48, 1989, paras 281, 285 et seq. 33 For a fuller account see S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 477, 488 et seq. 34 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 289; see also CRC Committee, Concluding Observations: Palestine, CRC/C/PSE/CO/1, 2020, paras 34-35. Similar assessment as regards the general right to freedom of religion in international human rights law by M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 18 mns. 12 and 19; see also Human Rights Committee, General Comment No. 22: Article 18 (Freedom of Thought, Conscience and Religion), CCPR/C/21/Rev.1/Add.4, 1993, para. 5. 35 See, e.g., CRC Committee, Concluding Observations: Jordan, CRC/C/15/Add.125, 2000, paras 12-13. For more detail see S Langlaude, The Right of the Child to Religious Freedom in International Law, 2007, p. 117-127. 36 Rightly so, S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 491. 37 CRC Committee, Concluding Observations: Myanmar, CRC/C/MMR/CO/3-4, 2012, paras 45 et seq. 38 See S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 240. 39 See E Brems, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 14, 2006, Article 14 mn. 48.

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extracted from the provision.40 As regards content, Article 14 para. 1 CRC includes, first and foremost, a defensive right which protects the child against religious indoctrination and discrimination by State authorities. Access to religious education should not be hampered by the State. If one accepts the existence of a positive obligation of States Parties arising from Article 14 para. 1 CRC,41 the State authorities must also guarantee protection against private encroachments of this right.42

III. Parental Rights in Regard to the Freedom of Thought, Conscience and Religion (Article 14 para. 2 CRC) Unlike Article 13 CRC, which makes no reference to parental rights,43 Article 14 para. 2 CRC specifies the parental rights and duties conferred by Article 5 CRC with respect to religious matters. The inclusion of this provision is arguably superfluous, given that Article 5 CRC already recognises the right of parents to provide direction and assistance to children in the enjoyment of all their rights. However, the duplication of this provision in Article 14 para. 2 CRC reflects the determination of the drafters to balance a child’s right to freedom of religion with the parents’ right to direct their child’s religious upbringing.44 However, it is noteworthy that Article 14 para. 2 CRC does not grant parents and, when applicable, legal guardians, a right to fully determine or control the religious and moral education of their children, as is the case, for example, in Article 18 para. 4 ICCPR and Article 2 of Additional Protocol No. 1 to the ECHR.45 Instead, Article 14 para. 2 CRC merely guarantees parents the right to provide direction to their child in the exercise of freedom of religion. Therefore, Article 14 para. 2 CRC is rather of an accessory nature and depends upon the exercise of the child’s right in Article 14 para. 1 CRC.46 Article 14 para. 2 CRC legitimises a level of deference to parental rights with respect to a child’s religious upbringing, but at the same time, it disrupts the dominant paradigm under international law by shifting from an exclusive focus on the rights of parents to a perspective which requires parents to take into account their children’s wishes, beliefs and evolving capacities.47 The CRC Committee underlines that it is the child who exercises the right to freedom of religion, not the parent(s).48 11 However, Article 14 para. 2 CRC does not prohibit parents from raising their children in a manner consistent with their own religious beliefs and convictions. But the parental role necessarily diminishes as the child acquires an increasingly active role in exercising 10

40 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 242. See also Human Rights Committee, General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4, 1993, para. 1. 41 See → Article 14 mn. 4. 42 See CRC Committee, General Guidelines Regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 57. 43 See → Article 13 mn. 6. 44 S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 493. 45 As regards Article 2 of Additional Protocol No. 1 to the ECHR see ECtHR, Judgment of 7 December 1976, Nos. 5095/71, 5920/72 and 5926/72, para. 52 – Kjeldsen, Busk Madsen and Pedersen v. Denmark; Judgment of 10 January 2017, No. 29086/12, para. 91 – Azizi Osmanoglu and Others v. Switzerland. 46 See CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 4. See also E Brems, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 14, 2006, Article 14 mn. 52. 47 See S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 494; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 14.10. 48 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 43.

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choice through adolescence.49 When exercising parental direction in religious matters, parents have to respect the evolving capacities of their children which are reflected in the age, capacity of discernment and maturity of the child.50 It is usually impossible for an infant or toddler to make an independent decision on religious matters due to an insufficient understanding of the relationships between the natural and supernatural. In this case, the decision falls necessarily to the parents or legal guardians, acting as representatives of the child.51 Yet, even older, but not yet religiously mature children will, of course, be influenced in some manner by their family of origin because of the contextual nature of religious education.52 Article 14 para. 2 CRC does not oppose this reality of life, in which the religious freedom of the child also includes the religious or non-religious customs of his or her family. However, the provision emphasises that the field of tension between the social-religious involvement of the child on the one hand and his or her autonomous freedom of religion on the other hand must be resolved as far as possible in favour of the latter.53 The CRC Committee generally encourages parents to offer direction and guidance in a child-centred way, through dialogue and role model, in order to enhance children’s capacities to take informed decisions and to exercise their rights.54 Limits can only be found where the child, because of his or her religious decision, suffers serious dangers to life or limb.55 It is unclear as to what age the child’s development is sufficiently advanced to render 12 parental direction in religious matters as unnecessary in view of the child’s ability to decide for him- or herself. The CRC Committee has not fixed an age of religious maturity but assumes that the age at which this stage is reached is usually before the legal age of majority. It therefore calls upon States Parties to provide information on the specific age at which a free choice of religion can be made.56 The age of religious maturity refers to the complete religious autonomy of the child. In a consultative way, the will of the child must already be taken into account even before he or she holds the status of religious maturity. In any case, from the perspective of the Convention, the lack of a definitive age is consistent with Articles 5 and 12 CRC, which both favour an approach based on the child’s evolving capacities rather than strict age limits.57 Article 14 para. 2 CRC primarily obliges States Parties to refrain from interference in 13 the ideological, ethical or religious education of the child by the parents.58 A restriction of this right is prohibited by means of the limitation clause in Article 14 para. 3 CRC.59 Only in cases where the religious instruction of the parents has a lasting impact on the development of the child, can a lawful State interference to protect the child be CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 43. See → Article 12 mn. 14. 51 Similarly, F Kelle, Die Vereinbarkeit der rituellen Beschneidung bei Jungen mit der UN-Kinderrechtskonvention, in: J Heil/S Kramer (eds.), Beschneidung: Das Zeichen des Bundes in der Kritik, 2012, p. 115, at 131. 52 See F Wapler, Religiöse Kindererziehung: Grenzen des Rechts, Recht der Jugend und des Bildungswesens 2015, p. 420, at 424. 53 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 407. Dissenting: S Langlaude, Children and Religion under Article 14 UNCRC: A Critical Analysis, International Journal of Children’s Rights 16 (2008), p. 475, at 480. 54 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2006, para. 17. 55 See → Article 14 mn. 1. 56 CRC Committee, General Guidelines Regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 24. 57 See also S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 490. 58 S Langlaude, Children and Religion under Article 14 UNCRC: A Critical Analysis, International Journal of Children’s Rights 16 (2008), p. 475, at 479 et seq. 59 See → Article 14 mn. 17. 49

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justified.60 This subject has practical significance in cases where the State interferes with the right of parents in the area of religious education in public schools. Such religious education must be designed in such a way that no undue conflict with the parental rights in Article 14 para. 2 CRC arises.61 However, at least on the European plane, the use of religious symbols in the classroom is judged inconsistently. The ECtHR sees the crucifix in school as an essentially passive symbol that does not carry any missionary tendencies and thus in no way restricts the religious parenting rights and the freedom of religion of the students.62 In contrast, in the view of the (German) Federal Constitutional Court, for instance, the placing of crucifixes in the classroom violates the negative religious freedom of non-Christian students, since they have no reasonable alternatives.63 It is noteworthy that the minority dissenting votes on both decisions refer to the majority decision of the other court, respectively.64 A consensual solution is not yet in sight. 14 The area of conflict regarding the wearing of religious symbols in State education, which has long been the subject of intense and controversial discussions, is becoming even bigger. The wearing of a burqa of female teachers and schoolgirls in public schools is generally inadmissible, whereas the wearing of the Islamic headscarves of schoolgirls is widely accepted as permissible.65 However, the Islamic headscarf for female teachers in public schools is rated very differently by several courts. This, in turn, prompted the CRC Committee to be concerned about some national laws prohibiting female teachers from wearing the Islamic headscarf in class. According to the CRC Committee, such prohibitions do not contribute to a tolerant education of the child in religious matters and are contrary to Article 14 and Article 29 CRC.66 A related question is raised as to whether compulsory mixed-sex physical education in school can impair the religious freedom of the child and/or his or her parents. The question became virulent in a case recently decided by the ECtHR on mandatory mixed sex swimming lessons for school children in the canton of Basel (Switzerland). Although the girls were allowed to wear burkinis, they did not take part in swimming lessons at their parents' request. According to the ECtHR, the fines subsequently imposed on parents for refusing to send their daughters to the swimming lessons do not violate religious freedom.67 The Court rather considers that sports education, of which swimming is an integral part of the school, is of special importance for children’s development and health. A child’s interest in attending those lessons lies not merely in learning to swim and taking physical exercise, but above all in participating in that activity with all the other pupils, regardless of the child’s origin or the parents’ religious or philosophical convictions.68 This is all the more

60 Similarly, E Brems, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 14, 2006, Article 14 mn. 54. 61 E Brems, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 14, 2006, Article 14 mn. 59. See also ECtHR, Judgment of 18 March 2011, No. 30814/06, paras 60 et seq. – Lautsi v. Italy. 62 ECtHR, Judgment of 18 March 2011, No. 30814/06, paras 72 et seq. – Lautsi v. Italy. 63 (German) Federal Constitutional Court, Judgment of 16 May 1995, 1 BvR 1087/91, paras 33 et seq. 64 For more detail see E Klein, Religionsfreiheit und öffentliche Schulen, Recht der Jugend und des Bildungswesens 2016, p. 13, at 19 et seq. 65 See, e.g., ECtHR, Judgment of 4 December 2008, No. 27058/05, paras 33 et seq. – Dogru v. France. 66 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.266, 2004, para. 31. 67 ECtHR, Judgment of 10 January 2017, No. 29086/12, paras 94 et seq., 105 – Azizi Osmanoglu and Others v. Switzerland. 68 ECtHR, Judgment of 10 January 2017, No. 29086/12, para. 98 – Azizi Osmanoglu and Others v. Switzerland.

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so, since the authorities offered very flexible arrangements in allowing the girls, among other concessions, to wear a burkini to the swimming lessons.69 The question on the scope and limits of parental rights is also relevant in terms 15 of the religiously motivated circumcision of young boys. Some national courts argue that the circumcision of a child should be deferred until the child has attained the necessary understanding of religious matters and can decide himself whether to undergo a procedure to cause a physically visible sign of his religious affiliation or not.70 They follow a very restrictive interpretation of freedom of religion and parental education, which can quickly develop into anti-religious, anti-Muslim and anti-Semitic sentiment and individual restriction.71 Since both the WHO and several human rights monitoring bodies, most notably the CRC Committee, assign positive preventative health effects to the circumcision of boys, provided it is carried out according to the rules of modern medicine,72 there is no reason to believe that the religious ritual of the removal of the male foreskin in infants or small children is contrary to the welfare of the child. 73 Unlike female genital mutilation which is forbidden by Article 24 para. 3 CRC, male circumcision is not humiliating and degrading.74 Conversely, one may rather assume that the circumcision of boys is also a sign of belonging to a religious and cultural group which is expressly protected by Article 30 CRC.75 The circumcision of the foreskin is not only a ritual of the world religion of Islam, but also a central component of the identity of Orthodox Judaism.76 Finally, parents who establish or send their children to private schools that align with 16 their own religious or ethical beliefs have a right to resist efforts by State authorities to deny their children access to such education. The CRC Committee is very clear in urging the States Parties to ensure full respect of the right of children to freedom of thought, conscience and religion by allowing children in private schools to receive teaching of their religions.77 In addition, the CRC Committee is concerned about the practice in private schools which fail to adequately facilitate an atmosphere conducive to religious diversity.78

69 ECtHR, Judgment of 10 January 2017, No. 29086/12, para. 101 – Azizi Osmanoglu and Others v. Switzerland. 70 This is the view expressed by the Regional Court of Cologne, Judgment of 7 May 2012, 151 Ns 169/11. 71 See, e.g., B Rox, Anmerkung zu LG Köln vom 7.5.2012, JuristenZeitung 2012, p. 806, at 808; P Wiater, Rechtspluralismus und Grundrechtsschutz: Das Kölner Beschneidungsurteil, Neue Zeitschrift für Verwaltungsrecht 2012, p. 1379. 72 See WHO Recommendations from expert consultation on male circumcision for HIV prevention, Geneva, 28 March 2007; CRC Committee, Concluding Observations: Lesotho, CRC/C/15/Add.147, 2001, para. 44; South Africa, CRC/C/15/Add.122, 2000, para. 33; Zambia, CRC/C/15/Add.206, 2003, paras 46 et seq. For more detail see J Tobin, The Right to Health in International Law, 2011, p. 312 et seq. See also → Article 24 mn. 29. 73 Dissenting, T Walter, Der Gesetzentwurf zur Beschneidung – Kritik und strafrechtliche Alternative, JuristenZeitung 2012, p. 1110 et seq.; H Putzke, Recht und Ritual – ein großes Urteil einer kleinen Strafkammer, Medizinrecht 2012, p. 621, at 623. 74 F Kelle, Die Vereinbarkeit der rituellen Beschneidung bei Jungen mit der UN-Kinderrechtskonvention, in: J Heil/S Kramer (eds.), Beschneidung: Das Zeichen des Bundes in der Kritik, 2012, p. 115, at 125. 75 Similarly, P Wiater, Rechtspluralismus und Grundrechtsschutz: Das Kölner Beschneidungsurteil, Neue Zeitschrift für Verwaltungsrecht 2012, p. 1379, at 1380 et seq. 76 See J Isensee, Grundrechtliche Konsequenz wider geheiligte Tradition, JuristenZeitung 2013, p. 317, at 321. 77 CRC Committee, Concluding Observations: Kuwait, CRC/C/KWT/CO/2, 2013, para. 38. 78 CRC Committee, Concluding Observations: Republic of Korea, CRC/C/KOR/3-4, 2012, paras 38 et seq.

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IV. Legitimate Restrictions to the Freedom of Belief and Religion (Article 14 para. 3 CRC) 17

Freedom to manifest one's religion or beliefs is not an absolute right. Under Article 14 para. 3 CRC, it can be subject to limitations, as far as these are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. This means that States can legitimately interfere with the right to manifest religion or beliefs, provided that this interference is undertaken consistently with a valid law, pursues a legitimate aim, and the measures used to achieve that aim are proportionate.79 What is striking, however, are three issues. Firstly, the restriction clause of Article 14 para. 3 CRC refers exclusively to the guarantee of freedom to manifest one’s belief and religion in Article 14 para. 1 CRC, and does not make any reference to the freedom of forming or holding a religion. The right of the child to freedom of conscience is also not covered by the limitation clause, nor are the parental rights pursuant to Article 14 para. 2 CRC. Secondly, Article 14 para. 3 CRC resembles widely to the limitation clauses enshrined in Article 13 para. 2 and Article 15 para. 2 CRC. However, in addition to the legitimate aims enumerated in the latter, Article 14 para. 3 CRC also lists the fundamental rights and freedoms of others. Thus, the lawful possibilities to interfere with the child’s right to freedom of religion are more extensive. 80 Thirdly, it is astonishing that the CRC Committee has not yet examined in detail the meaning of the requirements of Article 14 para. 3 CRC and has simply, and generally, expressed concern where States interfere with children’s rights to freedom of religion. 81 Nevertheless, the burden imposed on States to justify any interference with or restriction of the child’s right to freedom of religion is suitably high. Mere assumptions or assertions that an interference is necessary to achieve a pressing social need or a legitimate purpose as established in Article 14 para. 3 CRC are insufficient. Rather, a State must provide evidence that demonstrates a nexus between the interference and the aim, and establish that there was no reasonable alternative which would have minimised or avoided the need to interfere with a child’s right under Article 14 CRC.82

V. Embedding of Article 14 CRC into the System of International Human Rights Protection 18

At the universal level, the right to freedom of thought, conscience and religion is anchored in Article 18 UDHR and Article 18 ICCPR. At the regional European level, the right to freedom of thought, conscience and religion exists in Article 9 ECHR and Article 10 of the EU Charter of Fundamental Rights. The right to religious education is enshrined in Article 2 of Additional Protocol No. 1 to the ECHR and in Article 14 para. 3 of the EU Charter of Fundamental Rights. Article 12 ACHR and Article 8 ACHPR include a right to freedom of conscience and religion, but do not grant a specific freedom of thought. However, Article 9 para. 1 ACRWC states that every child shall have the right to freedom of thought, conscience and religion. Most of these guarantees are 79 S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 479. 80 Mistaken in this regard: E Brems, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 14, 2006, Article 14 mn. 68. 81 See, e.g., CRC Committee, Concluding Observations: Uzbekistan, CRC/C/15/Add.167, paras 35-36; Belarus, CRC/C/BLR/CO/3-4, paras 37-38. 82 For more detail see S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 507 et seq., 515.

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formulated in more detail compared to Article 14 para. 1 CRC. The limitation clauses, however, essentially correspond to the requirements of Article 14 para. 3 CRC. Despite the comparatively rudimentary regulatory scope of protection in Article 14 19 CRC, its content goes beyond the standards provided by other human rights treaties. Firstly, no other human rights treaty includes a guarantee corresponding to Article 14 para. 2 CRC. Article 18 para. 4 ICCPR and Article 2 of Additional Protocol No. 1 to the ECHR both stipulate an original parental right and do not consider these norms as being accessory to the religious freedom of the child,83 as Article 14 para. 2 CRC does. To the contrary, the Human Rights Committee makes explicit references to the parental rights regarding teaching a religion or belief.84 Secondly, the religious freedom under Article 18 ICCPR and under Article 9 ECHR is formulated from the perspective of the rights-holder. In contrast, Article 14 para. 1 CRC guarantees the child’s right to freedom of religion by defining positive obligations from the perspective of the duty-bearers, namely the States Parties. This technique, however, corresponds to Article 5 lit. d (vii) ICERD which prohibits racial discrimination in the enjoyment of the right to freedom of thought, conscience and religion.

Article 15 [Freedom of Association and Freedom of Peaceful Assembly] 1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Freedom of Association and Peaceful Assembly (Article 15 para. 1 CRC) . . . III. Lawful Restrictions of the Freedom of Association and Assembly (Article 15 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 15 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 8 10

I. Generalities Similar to Article 13 CRC, which provides the child’s right to freedom of expression, 1 the guarantee of freedom of association and peaceful assembly laid down in Article 15 CRC contains prima facie no specific reference to children.1 Article 15 CRC has predominantly only a repetitive character, as the rights contained in this provision are already enshrined in various international human rights instruments, for instance, in Articles 21 and 22 ICCPR. However, the peculiarity of the Article 15 CRC is that the 83 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 18 mns. 62 et seq.; S Bitter, in: U Karpenstein/F Mayer (eds.), EMRK, Kommentar, 2nd edn. 2015, Article 2 of Additional Protocol No. 1 mn. 1. 84 Human Rights Committee, General Comment No. 22: Article 18 (Freedom of Thought, Conscience and Religion), CCPR/C/21/Rev.1/Add.4, 1993, para. 6. 1 See the critical view by C Tomuschat, Mehr Schutz für die Schutzlosen: Die beiden Fakultativprotokolle zu dem Übereinkommen über die Rechte des Kindes, Vereinte Nationen 2002, p. 89, at 89 et seq.

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norm explicitly relates to the child as the holder of the rights contained therein and thus can be considered part of the so-called “participatory rights” of the child in societal life.2 Article 15 CRC affirms the relevance of the practical enjoyment of the rights to freedom of association and peaceful assembly in a child-friendly manner.3 The aim of both rights is to protect the child’s right to associate voluntarily with others on a sporadic or continuing basis to facilitate the pursuit of a common purpose. 2 Article 15 CRC draws strongly on Articles 21 and 22 ICCPR in a child-centred way. This means that children enjoy the rights to freedom of association and assembly on an equal footing with adults. However, from a technical legal perspective, it is to note that Article 15 CRC, in contrast to Articles 21 and 22 ICCPR, guarantees the freedom of association and assembly within the same provision. The separation between the two guarantees in Article 21 and Article 22 ICCPR has been undertaken because the rights to join a trade union, that are usually implied in the freedom of association, are subject to specific restrictions, which are not identical to the restrictions applicable to the freedom of assembly.4 Since the right to join a trade union is, in principle, only relevant for older children (adolescents) who are engaged in work, and thus plays only a minor role in the work of the CRC Committee,5 the drafters of the CRC decided to treat the rights to freedom of association and assembly in Article 15 CRC in a combined and uniform way in only one provision.6 3 Like Article 13 CRC, also Article 15 CRC does not relate to the parental rights enshrined in Article 5 CRC. There is rather a close relationship between Article 15 CRC and children’s rights to have their voices heard under Article 12 CRC. Here, too, the Convention is obviously concerned with an emancipatory approach in favour of the child, in which he or she is recognised as the bearer of own rights.7 Although the CRC Committee has not yet given an overall consistent and detailed opinion on the scope and meaning of the provision,8 it has repeatedly made connections to the empowerment nature of Article 15 CRC by acknowledging that the effective exercise of the rights to freedom of association and assembly will, in a number of instances, be contingent upon the freedom to gather with peers and in specific forums.9 The CRC Committee has also welcomed initiatives such as children’s or youth parliaments and student councils, or has called for measures to strengthen existing forums.10

See → Introduction mn. 28. C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 518. 4 Cf. Article 22 para. 2, sentence 2 ICCPR. 5 See → Article 15 mn. 6. 6 See Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, para. 47; see also C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 374. 7 See C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 519. Critical assessment by S Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression, Human Rights Law Review 10 (2010), p. 33, at 40 et seq. 8 Similar criticism is raised by A Daly, Article 15, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 15, 2016, p. 62-63. 9 CRC Committee, Concluding Observations: Kuwait, CRC/C/KWT/CO/2, 2013, para. 39. See also CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 110 et seq., 127 et seq. 10 See, e.g., CRC Committee, Concluding Observations: Venezuela, CRC/C/15/Add.109, 1999, para. 22; Iceland, CRC/C/ISL/CO/3-4, 2012, paras 28-29; Georgia, CRC/C/15/Add.124, 2000, para. 28; France, CRC/C/15/Add.20, 1994, para. 7. 2

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II. Freedom of Association and Peaceful Assembly (Article 15 para. 1 CRC) The obligation of States Parties to “recognise” the rights of the child to freedom of 4 association and assembly, despite its weaker formulation compared to Article 13 para. 1 CRC (“The child shall have the right”) and Article 14 para. 1 CRC (“States Parties shall respect the right”), does not result in a reduction of the scope of protection, as this would otherwise render the limitation clause in Article 15 para. 2 CRC meaningless. 11 Consequently, Article 15 para. 1 CRC generates obligations for the States Parties that are on a par with the other civil rights contained in the Convention.12 This means, first and foremost, that the provision places States Parties under an obligation to refrain from interfering with the enjoyment of the rights to freedom of association and peaceful assembly, unless such interference is compatible with Article 15 para. 2 CRC. 13 In particular, States Parties should not restrict the right to freedom of association and peaceful assembly with regard to the age of the child.14 From the travaux préparatoires to Articles 21 and 22 ICCPR as well as from the 5 opinions of the CRC Committee to Article 15 CRC, it follows clearly that the right to freedom of association and peaceful assembly encompasses, alongside its defensive function against State interference, also a positive obligation of the States Parties. During the drafting of the ICCPR, a majority of States Parties believed that freedom of association and assembly should not only be protected against government interference, but rather against all forms of interference.15 In light of the umbrella clause in Article 2 para. 1 CRC, which requires States Parties to respect and ensure the Convention rights, Article 15 para. 1 CRC also comprises positive State obligations to protect the rights of the child to freedom of association and assembly against interferences by third parties or non-State actors, without which both freedoms could not be effectively exercised. The CRC Committee therefore calls upon States Parties to report all measures, especially those of a legislative nature, taken to ensure the child’s right to freedom of assembly. 16 It further calls for laws relating to freedom of association to be amended in order to ensure the right of children to participate in societal life in general, in political parties and in activities undertaken by school children.17 The positive obligation to fulfil the child’s right can be seen in the comments of the CRC Committee that children should be supported and encouraged to form their own child-led organisations and initiatives in order to create space for meaningful participation.18 The CRC Committee also recommends that States Parties encourage and facilitate the exercise of the children’s right to 11 Concurring view by K-J Partsch, in: L Henkin (ed.), The International Bill of Rights, 1981, p. 209, at 231 et seq., with respect to the identical clause in Article 21 ICCPR. 12 See C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 523. 13 C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 523. 14 See CRC Committee, Concluding Observations: Costa Rica, CRC/C/CRI/CO/4, 2011, paras 37 et seq.; Turkey, CRC/TUR/CO/2-3, 2012, para. 38; France, CRC/C/FRA/CO/4, 2009, para. 48; Mozambique, CRC/C/MOZ/CO/2, 2009, para. 39. 15 See A/2929, 1955, paras 139, 148. 16 CRC Committee, General guidelines for periodic reports, CRC/C/58, 1996, paras 48, 58. 17 CRC Committee, Concluding Observations: Spain, CRC/C/15/Add.28, 1994, para. 19; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 40; Vietnam, CRC/VNM/CO/3-4, 2012, para. 42; Georgia, CRC/C/15/ Add.124, 2000, para. 31; Japan, CRC/C/15/Add.231, 2004, paras 29 et seq. 18 CRC Committee, Concluding Observations: Mozambique, CRC/C/MOZ/CO/2, 2009, para. 40; Kuwait, CRC/C/KWT/CO/2, 2013, paras 39 et seq.; Syrian Arab Republic, CRC/C/15/Add.212, 2003, para. 35.

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freedom of peaceful assembly so that they can freely discuss, participate and express their views in demonstrations, marches, public gatherings or political sit-ins.19 Against this background, States Parties’ obligations are twofold. Firstly, they must not intervene in all gatherings, whether they are private or public, formal or casual, social or political. Secondly, they have to take or adopt positive measures to facilitate such gatherings and protect the participants in the exercise of their rights. In particular, States Parties have to meet the requirement of creating an enabling environment and giving support in terms of resources and personnel to organise such activities in a safe environment without violent incidents.20 These obligations subsist provided there is no contravention of the law as laid down in Article 15 para. 2 CRC.21 It should, of course, be noted that both the right to freedom of association and freedom of assembly may also be exercised by the child in the negative, which implies the right not to be compelled to join any association, assembly or group, and the right to leave such an association.22 6 Article 15 para. 1 CRC does not attach any recognised purpose to the child’s right to freedom of association, and thus enjoys a broad interpretation. It extends to the right to form, join and leave associations.23 The legal form of the association is irrelevant. All types, including the de facto associations, such as youth clubs, are protected by the article.24 The same is true, according to the CRC Committee, for online platforms and Internet chat rooms set up independently by teenagers.25 The right to freedom of association is applicable in a wide spectrum of contexts, including the child within the family environment, the child in school or educational settings, and the child in social, cultural, religious and sporting environments as well as the child’s enjoyment of public spaces, in association with other children or adults.26 Trade unions also fall within the scope of Article 15 para. 1 CRC,27 although they are usually of secondary importance in practice, given that a child must first be employed in order to join a trade union. Pursuant to Article 2 ILO Convention No. 138, however, a child is not permitted to practice a profession before the age of 15 years (in developing countries before the age of 14 years). However, the CRC Committee recommends States Parties to ensure that

19 CRC Committee, Concluding Observations: Belize, CRC/C/15/Add.252, paras 38 et seq.; Ethiopia, CRC/C/15/Add.144, 2001, para. 37; Bahrain, CRC/C/BHR/CO/4-6, 2019, paras 34-34. 20 See CRC Committee, Concluding Observations: Thailand, CRC/C/THA/CO/3-4, 2012, para. 39; Syrian Arab Republic, CRC/C/SYR/CO/3-4, 2012, paras 46-47. Further see A Daly, Article 15, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 15, 2016, p. 50-52. 21 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 405. 22 See CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 21; Concluding Observations: Costa Rica, CRC/C/CRI/CO/4, 2011, paras 37 et seq. See also UM Assim, in: U Kilkelly/ T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 405. 23 C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 527 et seq. 24 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 144. 25 CRC Committee, Concluding Observations: Republic of Korea, CRC/C/15/Add.197, 2003, paras 36 et seq. 26 See, e.g., CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, paras 44 et seq.; General Comment No. 21, CRC/C/GC/21, 2017, paras 36 et seq.; Concluding Observations: Japan, CRC/C/15/Add.231, 2004, paras 29-30; Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 41; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 39. – For more detail see UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 403; C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 529 et seq. 27 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 145; see also C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 530-531. Different assessment by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 15.15.

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children who have the legal age for being employed can form, join and leave freely trade unions.28 The child’s right to freedom of peaceful assembly refers to both formal and informal 7 gatherings. Freedom of assembly includes the right to form and join others, gather peacefully, and associate freely with others in public or private spaces or spheres, in order to share or protect common interests.29 The right encompasses a broad range of assemblies, including political, economic, cultural, artistic and social demonstrations.30 The CRC Committee has acknowledged the child’s right to peaceful assembly and has endorsed the child’s capacity to participate in demonstrations and political rallies.31 For children in street situations, the CRC Committee considers that the association and assembly together in public spaces (such as parks and playgrounds) should not be arbitrarily harassed or removed, since this type of gathering is part of the lives of street children and falls under the ambit of both Article 15 CRC and Article 31 CRC. 32 However, freedom of assembly is subject to the condition that the assembly is peaceful. The criterion of peacefulness simply refers to the conditions under which the meeting occurs. If the meeting is violent or disturbing or otherwise results in public disorder, it fails outright to fall within the scope of Article 15 para. 1 CRC.33 The situation is, however, different in regards to the purpose for which the meeting is held and to which the opinions are expressed (e.g., in regards to a student demonstration or children’s organisations in schools or local municipalities).34 In principle, all purposes fall within the scope of Article 15 para. 1 CRC. States are also under an obligation to protect even unpopular or critical gatherings or demonstrations by minorities or other fringe groups in society from counter-demonstrations.35 To confine children to only formal or non-critical assemblies would point at a too narrow understanding of children’s right to freedom of assembly and result in the violation of their other rights.36 Limitations are only legitimate if they are in accordance with the requirements established in Article 15 para. 2 CRC. Children and adolescents may not be restricted in their freedom of assembly and expression harsher than adults.37 Freedom of assembly is crucial for the development of a child. The ability and freedom to interact and associate with others is vital for proper child development.38 Furthermore, the protection of children’s right to leisure, as foreseen in Article 31 CRC, is largely dependent on freedom of assembly, as the former cannot be exercised or enjoyed in isolation, especially during childhood.39

CRC Committee, Concluding Observations: Turkey, CRC/C/15/Add.152, 2001, para. 38. K-J Partsch, Freedom of Conscience and Expression, and Political Freedoms, in: L Henkin (ed.), The International Bill of Rights, 1981, p. 209, at 231 et seq. 30 C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 535; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 15.05. 31 CRC Committee, Concluding Observations: Ethiopia, CRC/C/15/Add.144, 2001, para. 37; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 39. 32 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, paras 38-40, 56. 33 See C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 538; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 15.07. 34 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 404. 35 Similarly, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 21 mn. 12. 36 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 404. 37 CRC Committee, Concluding Observations: Belarus, CRC/C/SR.786, 2002, para. 62. 38 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 403. 39 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 404. See also → Article 31 mn. 1. 28 29

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III. Lawful Restrictions of the Freedom of Association and Assembly (Article 15 para. 2 CRC) Article 15 para. 2 CRC introduces a uniform limitation clause applicable to both the freedom of association and the freedom of peaceful assembly in Article 15 para. 1 CRC. The wording of Article 15 para. 2 CRC accords almost exactly to that of Article 13 para. 2 CRC, which is why reference can be made to the explanations there.40 To date, the CRC Committee has largely confined itself to expressions of concern at State practice interfering with the child’s rights under Article 15 CRC, but it has failed to explore in detail whether such restrictions were in conformity with Article 15 para. 2 CRC. 41 The CRC Committee’s reluctance to engage with the limitation clause is a serious concern as it presents a one-dimensional and unbalanced understanding of the child’s rights to freedom of association and assembly, leaving aside competing or conflicting interests. 42 Rather, it seems that the CRC Committee is lobbying for children and not fulfilling its genuine task of protecting human rights in a well-adjusted and careful way. Since the CRC Committee’s views on the limitation clause of Article 15 para. 2 CRC are very limited, the views expressed by the Human Rights Committee and the ECtHR are to be used instead which both provide useful insight into the manner and extent to which reasons for permissible limitations can be relied upon States.43 9 The role of parents in the exercise of the rights enshrined in Article 15 CRC were one of the main concerns in the otherwise relatively uncontentious drafting history of the provision.44 The delegates from the United States of America and from China expressed the opinion that the child’s rights to freedom of association and assembly should be under the parental direction and guidance, which should be exercised in a manner consistent with the evolving capacities of the child.45 The majority of participants however indicated their preference to omit any reference to parental direction in Article 15 CRC.46 8

IV. Embedding of Article 15 CRC into the System of International Human Rights Protection 10

Analogous to many human rights contained within the CRC, the right to freedom of association and peaceful assembly in Article 15 CRC originates in the UDHR, where both rights are anchored in Article 20 UDHR. In a similar way, Article 11 ECHR and Article 10 ACHPR combine the rights in a single article. A separation of these rights See → Article 13 mns. 11 et seq. See, e.g., CRC Committee, Concluding Observations: Kuwait, CRC/C/KWT/CO/2, 2013, paras 39 et seq.; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 39; Australia, CRC/C/AUS/CO/4, 2012, para. 39; Singapore, CRC/C/SGP/CO/2-3, 2011, para. 37; Iran, CRC/C/15/Add.123, 2000, para. 33; United Kingdom, CRC/C/GBR/CO/4, 2008, paras 24 et seq.; France, CRC/C/FRA/CO/4, 2009, paras 47 et seq.; Ukraine, CRC/C/UKR/CO/3-4, 2011, paras 39 et seq. 42 Similar criticism by C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, at 545. 43 See, for instance, Human Rights Committee, Koneenko et al v. Belarus, Views adopted on 10 November 2006, CCPR/C/88/D/1274/2004, paras 7.3 et seq.; ECtHR, Judgment of 18 October 2011, No. 34960/04, paras 35 et seq. – Ilinden and Others v. Bulgaria; Judgment of 13 February 2003, Nos. 41340/98 et al., paras 89 et seq. – Refah Partisi and Others v. Turkey. 44 See C Breen, Article 15, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 517, 542 et seq. 45 See OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 466-468. 46 OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 469-470. 40

41

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is, however, present in Article 21 and Article 22 ICCPR as well as in Article 15 and Article 16 ACHR. A norm specifically tailored to the freedom of trade unions can be found in Article 8 ICESCR. The added value of Article 15 CRC lies in the recognition that children are allowed to participate in society as fully-fledged rights-holders. The ECtHR also implicitly refers to this legal subjectivity by stressing the right of all persons without exception to participate in a public assembly.47 Furthermore, the Court stated in Christian Democratic People’s Party v. Moldova (2010) that it would appear to be contrary to the parents’ and children’s freedom of assembly to prevent them from attending demonstrations against government policy on schooling.48

Article 16 [Right to Privacy] 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Protection of Privacy, Family, Home, Correspondence, Reputation and Honour (Article 16 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Protection of Privacy as a Subsidiary Right within the Framework of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Special Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Prohibition of Arbitrary or Unlawful Interference . . . . . . . . . . . . . . . . . . . . . . . . III. Positive Obligations of the States Parties to Guarantee Legal Protection (Article 16 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 16 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 6 10 12 13

I. Generalities The right to privacy guarantees a specific area of individual existence and self-deter- 1 mination, provided that it does not interfere with the freedom and privacy of others. The provision in Article 16 CRC has been adopted almost word-for-word from Article 12 UDHR and Article 17 ICCPR and has no specific child-related alignment, except the fact that the child is explicitly mentioned as a legal subject in Article 16 para. 1 CRC. The inclusion of Article 16 CRC in the Convention represents, however, the explicit extension of a classic civil freedom to children and thus serves to strengthen children’s participation in social and private life.1 Therefore, the interpretation of this provision must remain particularly child-centred, taking into account the distinctive ways in which children might experience this right relative to adults.2

47 ECtHR, Judgment of 2 February 2010, No. 25196/04, paras 23 et seq. – Christian Democratic People's Party v. Moldova. See also ECtHR, Judgment of 4 March 1987, No. 11356/85 – Irka Cederberg v. Sweden. 48 ECtHR, Judgment of 2 February 2010, No. 25196/04, para. 74 – Christian Democratic People's Party v. Moldova. 1 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 597. See also → Introduction mn. 28. 2 See S Detrick, A Commentary on the Convention on the Rights of the Child, 1999, p. 269-282.

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II. Protection of Privacy, Family, Home, Correspondence, Reputation and Honour (Article 16 para. 1 CRC) 1. Protection of Privacy as a Subsidiary Right within the Framework of the Convention The scope of Article 16 para. 1 CRC covers six different areas of the life of the child, namely privacy, family, home, correspondence, honour and reputation. Thus, Article 16 CRC is a multidimensional right, under which the concept of private life is to be regarded as an umbrella, a “filler” or a “catch-all” fundamental right.3 3 Privacy is a term which is hard to be defined comprehensively. In general human rights law, it has at least five discrete dimensions which relate to the autonomy and normative agency of individuals, including, of course, children.4 These dimensions are physical and psychological integrity, decisional autonomy, personal identity, informational privacy and spatial privacy.5 Privacy thus extends far beyond its humble origins as a “right to be let alone”.6 It rather refers to all forms of external living, of expression and manifestations of private factors. These include external identity-forming factors such as name, appearance, clothing, hair styling as well as internal factors such as feelings and thoughts. Physical integrity, decisional, relational and bodily autonomy, confidentiality of private and intimate information, and the right to establish, maintain and terminate human relationships also fall within the concept of privacy.7 Generally spoken, privacy refers to freedom from unwanted or undue intrusion or disturbance in one’s own life or affairs. This includes freedom from public scrutiny, secret surveillance, or unauthorised disclosure of one’s personal data or information. The right to privacy also prohibits the unauthorised publication of private photographs and protects against the violation of private communications.8 In sum, the right to privacy is closely related to a person’s identity and personal autonomy, founded on the value of human dignity.9 4 There is no doubt that the child’s right to privacy also includes online privacy. Children constitute a particularly vulnerable group of online users, who lack awareness and capacity to foresee potential long-term privacy consequences for their privacy, e.g., by disclosing their personal data online.10 In that regard, Article 17 CRC, which tackles access to mass media, plays a vital role.11 Yet, the right to privacy is also an important participatory right in the digital context, and children are also to be protected against parents who share information, photos and data about their children online, without the previous consent of the child. Parents should take the child’s best interests into 2

3 See also, with regard to Article 17 ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3 rd edn. 2019, Article 17 mn. 15. 4 See, e.g., M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mns. 16 et seq. 5 See J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 560-561. 6 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 409. 7 For a fuller account, with references to the jurisprudence of the ECtHR, see J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 561 et seq. 8 See, e.g., CRC Committee, Concluding Observations: Nepal, CRC/C/15/Add.261, 2005, paras 45 et seq.; Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, paras 37 et seq. 9 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 409. 10 See E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 496. 11 See → Article 17 mns. 5 et seq.

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consideration and involve the child in the decision about what is shared about them, in accordance with their age and maturity.12 Yet, many of these aspects of privacy are not only covered by the specific (institu- 5 tional) guarantees of Article 16 para. 1 CRC, but are already guaranteed by separate Convention rights (e.g., Articles 6 to 8, Article 9 para. 3 and Article 14 CRC). Thus, the protection of private life in the sense of Article 16 para. 1, alternative 1 CRC plays only a marginal role within the Convention. The right to privacy is often referred to as the “filler” right, since it can be invoked when no other right appears relevant or appropriate.13 However, it is significant that the protection of the child’s private life also encompasses aspects of autonomy and self-determination. Fundamentally covered by the provision are, therefore, acts or omissions that may cause damage to the child as a bearer of rights. The prerequisite for this is that the child determines freely his or her own actions. However, the child’s right to privacy was not set up to usurp the rights of parents and legal guardians.14 Therefore, the scope and limitations of the child’s right to privacy are found in Articles 5 and 12 CRC, according to which children may need direction and guidance from parents or legal guardians in the exercise of their right to privacy in view of the evolving capacities of the child.15 On the face of it, Article 16 CRC appears to focus mainly on the privacy of the child as an individual and in the context of the family or home as the natural environment for the growth and well-being of children. However, it must be borne in mind that the right to privacy also applies in a variety of settings other than home and family. These include care and penal institutions, schools, adoption, court and administrative proceedings.16

2. Special Guarantees The concept of the family is generally recognised in human rights law as the natural 6 and fundamental group unit of society, and is also mentioned in Recitals 5 and 6 of the Preamble to the CRC.17 The requirement under Article 16 para. 1 CRC that a child be protected from unlawful and arbitrary interference with his or her family represents another illustration of the special protection afforded to the family in international law.18 The concept of family in Article 16 para. 1, alternative 2 CRC is, similar to the concept of family in Article 5 CRC, to be interpreted broadly.19 Family includes not simply blood relatives and legally established relationships, but also other intensive and regular forms of cohabitation, including the extended family of traditional African societies.20 The CRC Committee explains in this regard that when considering the family environment, the Convention reflects different family structures arising from various cultural patterns and familial relationships such as the traditional nuclear family, the extended family, 12 Rightly so, E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 497. 13 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 552. 14 See Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, paras 35 et seq. 15 Commission on Human Rights, Report of the Working Group, E/CN.4/1988/28, 1988, para. 38. Further see J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 553-554. 16 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 409. 17 See → Preamble mn. 4. 18 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 577. 19 See → Article 5 mn. 4. 20 See also M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mns. 31-32.

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common law family, single-parent family and the adoptive family as well as modern community-based arrangements provided they are consistent with children’s rights and best interests.21 The right to protection of the family has particular importance in the context of residence and the maintenance of family relations, especially in regards to termination measures separating the child from the parents. In this respect, the Convention contains numerous specific rights, such as Article 9 para. 3, Article 10, Article 11, Article 21 and Article 22 CRC, with the consequence that the protection of the family in Article 16 para. 1 CRC has a mere subsidiary character and residual role.22 7 According to Article 16 para. 1, alternative 3 CRC, a child’s home is also subject to special protection. The term “home” covers all confined spaces that serve peoples’ residency and living purposes, regardless of the form of legal authorisation of use and the specific type of use. The area of the home (“domicile”) usually reaches as far as the property or the corresponding authorisation of use. This means that in most cases the garage and garden are included.23 The ECtHR extends the scope of Article 8 ECHR further to caravans and houseboats.24 What is decisive in the context of Article 16 para. 1 CRC, is that “home” is where the family resides and/or (in case of separation) where children reside.25 The CRC Committee has even underscored a State’s obligation to ensure full implementation of the right to housing for “street children”, including with respect to searching for personal effects in case of homeless children. 26 8 Although the only express reference in Article 16 para. 1, alternative 4 CRC is made to “correspondence”, which is generally associated with communication by exchanging letters,27 in view of technological advances all forms of communication over a certain distance are included.28 These involve letters, phone calls, emails, interactions via social media, etc. The protection of correspondence refers to its secrecy, insofar as the communication is performed privately. Thereby, publicly accessible online forums and chats or websites are not subject to the freedom of correspondence.29 Privacy has important dimensions in relation to the need to protect children from harmful correspondence and risks associated with the digital era, such as cyber violence and virtual pornograph-

21 See CRC Committee, The Role of the Family in the Promotion of the Rights of the Child, CRC/C/24, 1994, para. 2.1.; General Comment No. 7, CRC/C/GC/Rev.1, 2006, paras 15 et seq.; General Comment No. 14, CRC/C/GC/14, 2013, para. 59. 22 Rightly so, J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 580. Dissenting: M Caroni, Privat- und Familienleben zwischen Menschenrecht und Migration, 1999, p. 78 et seq.; H Cremer, Kinderrechte und der Vorrang des Kindeswohls, Anwaltsblatt 2012, p. 327, at 328. 23 See also M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mn. 46, with further references. 24 See ECtHR, Judgment of 18 January 2001, No. 24882/94, para. 84 – Beard v. The United Kingdom; Judgment of 18 January 2001, No. 27238/95, paras 71 et seq. – Chapman v. The United Kingdom; see also EComHR, Decision of 2 September 1992, No. 19212/91, para. 2 – Andresz v. France. For more detail see WA Schabas, The European Convention on Human Rights. A Commentary, 2015, Article 8, p. 358, at 399-400. 25 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 586. 26 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 43. 27 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 589. 28 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mn. 53. See also, with regard to the very similar case-law of the ECtHR: WA Schabas, The European Convention on Human Rights. A Commentary, 2015, Article 8, p. 358, at 400-401. 29 For a fuller account with regard to the European Convention on Human Rights see C Grabenwarter/K Pabel, Europäische Menschenrechtskonvention, 6th edn. 2016, § 22 mn. 25.

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ic material, in the best interests of the child.30 On the other hand, certain forms of correspondence via social media (Facebook, Instagram, etc.) are likely to be protected by Article 16 para. 1, alternative 4 CRC if the average user can assume that his or her comments are treated confidentially, because he or she has admitted, for example, only a very limited "circle of friends" to his or her Facebook or Instagram account. Of course, it remains problematic that children and adolescents are often unaware of how easily Facebook entries can be made visible to everyone. The risk that comments are passed on to third parties is often underestimated by children and adolescents.31 Here, States Parties are called upon to take effective measures to protect the child.32 Honour and reputation in terms of Article 16 para. 1, alternative 5 CRC are, in prin- 9 ciple, separable from one another, although overlaps can occur. While honour describes the personal subjective perception of a person about him- or herself, reputation is an objective element and primarily consists of the appraisal and assessment of one person by another.33 Unlawful acts on honour and reputation typically apply to concerns of slander, defamation or other verbal attacks as well as published defamatory statements or libel.34 The protection against unlawful attacks on a child’s honour and reputation is not an issue that has attracted the detailed attention of the CRC Committee so far. The CRC Committee has only noted that children in street situations are particularly vulnerable to unlawful attacks on their honour and reputation as a consequence of unlawful discriminatory and disrespectful treatment in law and practice on the ground of their or their parents’ street situation.35 Furthermore, the comments of the CRC Committee suggest that unlawful attacks may include attacks against children as a group.36

3. Prohibition of Arbitrary or Unlawful Interference The rights protected under Article 16 para. 1 CRC are not absolute and can be subject 10 to interference provided that the interference is neither arbitrary nor unlawful. Both conditions must be cumulatively present in a negative form. While the requirement of lawfulness includes a procedural dimension, namely that the law is valid and accessible, and a substantive dimension, namely that the law is consistent with the principles under the Convention and general human rights law,37 the prohibition of arbitrariness requires that any interference must be reasonable and proportionate if it is to be justified. 38 However, this double screening mechanism applies only to privacy, family, home and correspondence. In contrast, the examination of interference with the honour and reputation of a person expressly entails only a test of legality. The reason for this less extensive protection is probably attributable to the fact that honour and reputation 30 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 38, at 410. 31 For more detail see H Steenhoff, Das Internet und die Schulordnung, Neue Zeitschrift für Verwaltungsrecht 2014, p. 1190, at 1192 et seq. 32 See also → Article 17 mn. 20. 33 Similarly, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mn. 61. 34 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 409 et seq. 35 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, paras 43, 60. 36 CRC Committee, Concluding Observations: Nicaragua, CRC/C/15/Add.36, 1995, paras 17, 34. Further see R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 211. 37 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 558. 38 For more detail on the prohibition of arbitrariness see J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 556 et seq.

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are more likely to conflict with the rights of others.39 All in all, the CRC Committee’s comments on the child’s right to privacy regularly fall short to the extent that they are unaccompanied by an acknowledgment that any restriction of the rights of the child may be justified on grounds of Article 16 para. 1 CRC or the interest of human rights of others.40 11 With Article 5 CRC, the Convention provides an additional basis on which the right of the child to a private life in relation to the parents and other persons caring for the child can be regulated lawfully.41 However, the discretion given to parents in their assessment of how to provide guidance to a child in the enjoyment of his or her right under Article 16 CRC is not unlimited. Parents must make the child’s best interests, rather than their own, their basic concern. In addition, the right of parents to regulate their child’s right to privacy remains subject to the child’s evolving capacities.42

III. Positive Obligations of the States Parties to Guarantee Legal Protection (Article 16 para. 2 CRC) 12

Article 16 para. 2 CRC clarifies that the obligation imposed on States Parties to protect children against arbitrary and unlawful interference with their right to privacy extends to interference and attacks from both public and private actors. Thus, the obligation of States Parties is not simply to abstain from intrusion into the private life of a child, but also to take positive measures to secure a child’s enjoyment of the right to privacy.43 While Article 16 para. 1 CRC protects primarily against unlawful and arbitrary State interference, Article 16 para. 2 CRC also has an indirect horizontal effect by emphasising the State’s duty to protect legal interests from the interference by third parties and non-State actors.44 This protection is usually achieved through legislative and administrative measures.45 In this context, Article 11 para. 1 CRC supplements Article 16 para. 2 CRC.46 However, the positive obligation of States Parties does not go so far as to obligate them to a restoration of family life in the event of a breakdown.47 States rather have a level of discretion with respect to the specific measures they adopt to protect a child’s right under Article 16 CRC, subject to the caveat that such measures must be both effective and consistent with the other provisions of the Convention. 48 Moreover, such measures must be clear and, if necessary, supported by secondary legislation to regulate the practical implementation of the right to privacy.49 The right See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mn. 59. Similar criticism by J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 575. 41 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 558. 42 See J Tobin, Understanding Children’s Rights: A Vision beyond Vulnerability, Nordic Journal of International Law 84 (2015), p. 155 et seq. 43 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 596. 44 See, e.g., CRC Committee, Concluding Observations: Federated States of Micronesia, CRC/C/FSM/CO/2, 2020, paras 33-34. 45 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mn. 5. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 16.09. 46 See → Article 11 mn. 2. 47 M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 17 mn. 6. 48 J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 596. 49 CRC Committee, Concluding Observations: Nicaragua, CRC/C/15/Add.108, 1999, para. 28. 39

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to protection of the law also includes a right to an effective remedy for recognised violations, preferably in a child-sensitive manner.50 With a view to Article 4 CRC, the CRC Committee has further recommended that States Parties take all necessary measures to ensure respect for children’s privacy,51 which includes not only legislative but also administrative and other measures.52

IV. Embedding of Article 16 CRC into the System of International Human Rights Protection In addition to Article 12 UDHR and Article 17 ICCPR, the protection of privacy, 13 family, home and correspondence is also anchored in Article 8 ECHR and Article 11 ACHR. The ECtHR, in regards to Article 8 ECHR, expressly refers to the best interests of the child in Article 16 and Article 3 para. 1 CRC when conducting its examination on an individual case. 53 With regard to the protection of the minor's privacy from interference by private third parties, Article 16 and Article 19 CRC are also mentioned in the ECtHR judicature, for example, in case of secret filming of the underage stepdaughter in the bathroom.54 Only the African Charter on Human and Peoples’ Rights contains no right to privacy. Instead, however, Article 10 ACRWC contains a right of the child to privacy, although here the role of the parents and legal guardians is particularly emphasised in the exercise of the right. Article 10 ACRWC guarantees children the right to privacy provided that parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. Nevertheless, the African Committee of Experts on the Rights and Welfare of the Child is clear about the fact that violations of the rights of the child, including privacy, cannot be justified by supervision over the conduct of the child.55 The Committee has found, for instance, the virginity inspection of girls to be an unlawful interference with privacy and strongly recommended its ban.56

Article 17 [Access to Information; Mass Media] States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: (a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29; 50 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 24 et seq.; Concluding Observations: Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, para. 38; Australia, CRC/C/AUS/CO/4, 2012, para. 42. 51 See CRC Committee, Concluding Observations: Croatia, CRC/C/HRV/CO/3-4, 2014, para. 29; Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 35. 52 See also J Tobin/SM Field, Article 16, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 551, at 597. 53 See, e.g., ECtHR, Judgment of 28 June 2011, No. 55597/09, para. 84 – Nunez v. Norway; Judgment of 6 June 2013, No. 1585/09 – Avilkina and Others v. Russia; both with further references. 54 ECtHR, Judgment of 12 November 2013, No. 5786/08, para. 82 – Söderman v. Sweden. 55 UM Assim, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 389, at 410. 56 ACERWC, Concluding Recommendations: South Africa, 2015, para. 65.

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(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources; (c) Encourage the production and dissemination of children's books; (d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous; (e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. General and Specific Obligations Arising from Article 17 CRC . . . . . . . . . . . . . . III. Embedding of Article 17 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 7 17

I. Generalities Media and social communication are changing more quickly and with more consequences than ever before. The media usage and communication behaviour in everyday life is characterised by numerous technological offers and digital channels such as PCs, tablets, smartphones, messenger apps, social networks, video portals and virtual games.1 This development affects adults and children equally. However, it is especially young people who are born (mostly as “digital natives”) into the mediatised environment and have been, and continue to be, confronted with it in the course of their personal development. The Internet and media consumption via smartphones have become an integral part of the life of the young generation.2 As has been plausibly explained, “digital age of majority” already begins today at around the age of 10 years: over 90 per cent of the 10 to13 year olds children use the Internet and have a network-compatible smartphone; the percentage is even higher for adolescents.3 Adolescents use smartphones as universal devices, namely as video phones, web browsers, mobile radio devices, game consoles and interactive books. In addition, new communication channels and forms of expression are opening up via messenger apps and social networks. Smartphones can also be used as creative tools, for example to produce music clips or video blogs, that can be easily distributed. The boundaries between entertainment, art, information and communication, between use and design, between mobilisation and risk, and between the online and offline world are becoming increasingly blurred.4 2 It is therefore of outstanding worth that Article 17 CRC contains specific safeguards and guarantees for children using the mass media, which are unique in international law. This uniqueness applies not only to the universal but also to the European level. While there are a number of recommendations and resolutions on youth media law within the 1

1 See M Urlen, Medienkompetenzen in der digitalen Welt, Recht der Jugend und des Bildungswesens 2017, p. 297, at 297 et seq. 2 A Nagy/A Fazekas, in: European Commission/Council of Europe (eds.), Perspectives on Youth: Young people in a digitalised world, 2018, p. 9 at 10 et seq. 3 M Erdemir, Zeitgemäßer Jugendmedienschutz. Eine Frage der Kompetenz, Kinder- und Jugendschutz, Wissenschaft und Praxis 63 (2018), p. 39, at 39. 4 See S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 375-376.

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framework of the Council of Europe, in particular with regard to the new media,5 a European Convention on youth media law has not been drafted yet. Traditionally, the interface between the law, media and children has developed in the 3 form of restrictions on the dissemination of material deemed harmful or injurious to a child’s well-being. Article 17 CRC shares this concern but does not limit itself to a protective focus but rather prioritises the positive function of the mass media which ensures children’s access to a variety of material and information. 6 Article 17 CRC, which is entitled "Access to Information; Mass Media", contains various individual guarantees for dealing with the media. From the initial draft proposal to include a protective regulatory clause against potential negative effects of media on children in the Convention,7 arose finally an extensive and diverse text, which also recognises and promotes the positive opportunities that the mass media has on the evolvement and education of children.8 Consequently, the CRC Committee has recently explained that the mass media industry can have positive as well as negative impacts on children’s rights.9 Despite its broadness, novelty and diversity, the meaning and scope of Article 17 CRC are still not analysed comprehensively in literature and in practice. It was not until 2014 that the CRC Committee, which is endowed with the interpreta- 4 tion and the monitoring of the CRC,10 dealt intensively with the content of Article 17 CRC. The Day of General Discussion which the CRC Committee held in 1996 with the focus on “Media and Children” also covers the same topic but goes back to a time when the digitalisation of societies was not yet well advanced.11 Thus, the 2014 discussion initiative was particularly useful in light of the legal novelty of Article 17 CRC, which has no normative equivalent under other international human rights treaties. The unique nature of Article 17 CRC means that there is no jurisprudence and only limited academic commentary from which to draw.12 The deeper examination of Article 17 CRC was also necessary because the digitisation of societies was still in its infancy at the time when the Convention was drafted in the 1980 s. This is why the media at that time were primarily understood as those belonging to the analogue "offline world" (e.g., books, magazines, radio, movies). 13 Today, in contrast, as Internet access is affordable through a range of devices and settings, the digital environment is already an integral part of the lives of many people across the globe. It is estimated that one-third of Internet users worldwide are children and adolescents under 18 years of age. Information and communications technologies are therefore reshaping children’s lives, resulting in new opportu5 See U Kilkelly, Protecting Children, in: S Schmahl/M Breuer (eds.), The Council of Europe. Its Law and Policies, 2017, mn. 30.09. 6 See Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, para. 116. See also J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 602, 606 et seq. 7 See Commission on Human Rights, Note verbale of the Polish People’s Republic, E/CN.4/1349, 1980, p. 4. 8 For more detail see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 285 et seq. 9 See CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 58. 10 See → Article 43 mn. 1. 11 CRC Committee, General Discussion on “The Child and the Media”, 7 October 1996, CRC/C/57, p. 42-47, paras 242-257. 12 But see, for instance, SW Sacino, Article 17, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2012, p. 5 et seq.; S Schmahl, in: I Richter/L Krappmann/ F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 377 et seq. 13 See K Hanke/L Meergans/I Rausch-Jarolimek, Kinderrechte im Medienzeitalter. Ausführungen zum Recht des Kindes auf Medienzugang gemäß Art. 17 UN-Kinderrechtskonvention, Recht der Jugend und des Bildungswesens 2017, p. 330, at 335.

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nities for their rights, but also for the risks to their well-being.14 Consequently, the term “media” in Article 17 CRC has to be conceived broadly, including both offline and online media.15 The dynamic interpretation of the provision in the light of present-day conditions is also endorsed by the ECtHR. The Court has held on several occasions, that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general.16 5 In order to explore the scope of Article 17 CRC in the digital age more closely, a large number of representatives of States, international organisations and non-governmental organisations launched a joint "Day of General Discussion" on the media behaviour of children in general in 2014 at the initiative of the CRC Committee. Another discussion day in the same year focused specifically on children's use of digital media. The results of both “Days of General Discussion” have been reflected in two – legally non-binding – recommendations of the CRC Committee.17 Both documents emphasise the importance of the individual provisions of Article 17 CRC and their close relationship with other guarantees provided in the CRC, such as the right to privacy (Article 16 CRC), freedom of expression and information (Article 13 CRC), the child’s right to participation (Article 12 CRC) and the protection against economic exploitation and sexual abuse (Articles 32 and 34 CRC). The documents also underline that the regulatory content of Article 17 CRC does not only refer to selected types of media. Rather, the scope of the norm extends equally to conventional (analogue) and digital media. 6 Moreover, the principle of non-discrimination of Article 2 CRC requires equality of children’s access to the digital environment.18 Thus, it is important to sustain and extend policies to overcome the digital exclusion of children in its different forms. Policies should be designed to include all children in the right to access the mass media, in particular children belonging to a vulnerable group.19 In addition, children have to be educated about their right to non-discrimination in the digital context. This entails two elements: on the one hand, children must be provided with the necessary tools and skills to act against and deal with the harms that may result from online discrimination or hate speech.20 On the other hand, children should be informed about their responsibility not to act discriminatory themselves in the digital environment, thereby acknowledging children’s role as creators and distributors of content, and not solely as consumers. 21

14 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 488. 15 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 498. 16 ECtHR, Judgment of 2 February 2016, No. 22947/13, para. 56 – MTE v. Hungary. 17 CRC Committee, Day of General Discussion on the child and the media, 2014, and Day of General Discussion on digital media and children's rights, 2014. 18 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 491. 19 See CRC Committee, Concluding Observations: Yemen, CRC/C/YEM/CO/4, 2014, para. 42; Burkina Faso, CRC/C/BFA/CO/3-4, 2010, para. 37; Bangladesh, CRC/C/BGD/CO/4, 2009, para. 43. 20 T McGonagle, in: M Herz/P Molnar (eds.), The Content and Context of Hate Speech: Rethinking Regulation and Responses, 2012, p. 456 et seq. 21 Rightly so, E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 491.

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II. General and Specific Obligations Arising from Article 17 CRC Article 17 CRC takes into account five different aspects that are relevant in the con- 7 text of media used by children. However, Article 17, sentence 1 CRC also establishes two general criteria that are applicable to all the specific obligations enumerated in Article 17, sentence 2 lit. a to lit. e CRC. Firstly, although the phrase “mass media” is not defined in the Convention and has not been the subject of discussion during drafting, 22 it is to be interpreted broadly to include both online and offline means of communicating information of any kind (including advertising) to an audience and the persons producing and disseminating that information.23 The term “mass media” extends to both Statecontrolled and private commercial media.24 In the light of a dynamic interpretation, Article 17 CRC also includes social media platforms which allow the creation and dissemination of information by individuals and organisations, although these means of communication did not exist when the Convention was drafted. There is no doubt that the line between private and public spheres and the line between mass media and individualised media has become blurred. As a consequence, the term “mass media” includes digital companies involved in social media by creating platforms to enable others to disseminate information on the Internet and via digital technology.25 Secondly, the obligation to recognise the important function performed by the mass 8 media does not impart any substantive obligations on States Parties. Likewise, the obligation to ensure that children have access to material from a variety of sources does not require that States Parties themselves must guarantee this access. Article 17, sentence 1 CRC merely emphasises the potential for the media to have a positive impact on the development of the child.26 The CRC Committee underlines that the dissemination of information, plurality of opinions and ideas to children is beneficial for children and forms an increasingly central role in their education and well-being.27 Article 17 CRC therefore requires that States Parties ensure that State and non-State actors do not arbitrarily interfere with children’s access to such information and also adopt measures within the scope of their available resources to fulfil children’s right to access such information.28 However, Article 17 CRC is by no means intended to interfere with the independence of the media.29 Article 17 CRC does not concern access to information either; this role is performed exclusively by Article 13 CRC.30 Rather, Article 17 CRC concerns the means by which a child can access information with the primary objective of promoting the best interests, the well-being and the physical and mental health of the 22 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. I, 2007, p. 480-491. 23 J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 604. 24 See CRC Committee, Concluding Observations: Spain, CRC/C/ESP/CO/3-4, 2010, paras 32-33; Ecuador, CRC/C/ECU/CO/4, 2010, para. 29; Mongolia, CRC/C/MNG/CO/3-4, 2010, para. 35. 25 See CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 60. For more detail see J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 605-606. 26 Cleary so, Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, para. 116. 27 See, e.g., CRC Committee, Concluding Observations: Hungary, CRC/C/HUN/CO/3-5, 2014, para. 28; General Comment No. 20, CRC/C/GC/20, 2016, paras 2, 47. 28 J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 603. 29 CRC Committee, General Discussion on “The Child and the Media”, CRC/C/50, 22 March 1996, p. 80. 30 See → Article 13 mn. 7.

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child.31 Therefore, States Parties are only required to encourage rather than to ensure that the mass media undertake the various measures with respect to children’s exposure to media under Article 17 CRC.32 In that regard, the CRC Committee recommends the development of a comprehensive policy and the adoption of a national action plan regarding the promotion of children’s access to diverse media sources consistent with their age and level of maturity.33 The CRC Committee further highlights the important role to provide media literacy for children. Knowledge about the media, their impact and their functioning should be imparted in schools at all levels.34 Thereby, States Parties should offer children opportunities to participate in the media, as media participation strengthens children’s ability and curiosity and increases their critical understanding of the media.35 On the other hand, States Parties should be aware and not obscure the dangers associated with excessive and inappropriate access to the media.36 9 Article 17, sentence 2 lit. a and lit. b CRC focus upon the extensive social and cultural education of the child. To this end, States Parties shall ensure that the child has access to diverse national and international information and material that serves to benefit them. Therefore, Article 17, sentence 2 lit. a and lit. b CRC seek, in addition to protection of children against inappropriate and harmful media which is outlined in sub-paragraph lit. e, to highlight the important promoting role of the media in the social, educational and cultural development of children. The emphasis on diversity of mass media sources should be understood as a means to provide plurality of opinions that will contribute to the well-being, health, and development of children.37 States Parties enjoy a level of discretion in assessing what kind of information they believe will be suitable for the purpose of the article. However, there are some qualifications which direct the State’s discretion. The reference to the “spirit of Article 29 CRC” suggests that priority should be given to the generation and dissemination of information which conforms to the physical and mental well-being of the child,38 which respects humans’ rights and the promotion of peace and tolerance,39 and which foster gender equality and prohibit to denigrate women and girls.40 The reference to international cooperation in the production, exchange and dissemination of information from a diversity of cultural, national and international sources requires that States Parties take positive measures to facilitate and enable the flow of information within and between States and cultures. Article 17 CRC does, of course, do not impose an obligation to actually achieve international cooperation. The norm merely demands that States Parties adopt appropriate measures to guard 31 J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 611. 32 J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 610, 612. 33 CRC Committee, Concluding Observations: Spain, CRC/C/ESP/CO/3-4, 2010, para. 33; Congo, CRC/C/COG/CO/2-4, 2014, para. 39. 34 CRC Committee, Day of General Discussion on the child and the media, 2014, para. 95; General Comment No. 20, CRC/C/GC/20, 2016, para. 47. 35 CRC Committee, General Discussion on “The Child and the Media”, CRC/C/50, 22 March 1996, p. 81. 36 For a fuller account see J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 618-619. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 17.16. 37 CRC Committee, Concluding Observations: Hungary, CRC/C/HUN/CO/3-5, 2014, para. 28. 38 CRC Committee, Concluding Observations: Federal Republic of Yugoslavia, CRC/C/15/Add.49, 1996, para. 41; General Comment No. 15, CRC/C/GC/15, 2013, paras 77, 84. 39 CRC Committee, Concluding Observations: Federal Republic of Yugoslavia, CRC/C/15/Add.49, 1996, para. 11; Croatia, CRC/C/15/Add.52, para. 20; CRC/C/PAN/CO/3-4, 2011, para. 29. 40 CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 32; Panama, CRC/C/PAN/CO/3-4, 2011, para. 29.

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against the homogenisation of programming and ensure a diversity of sources.41 In general, a child-friendly access to media information is required, too.42 Of particular importance within the objective of Article 17, sentence 2 lit. a and lit. b 10 CRC are the active participation of children in the constitution of the media and their interaction with it. At the heart of the norm stands the transfer of knowledge about the media and media messages, including media influence and operation.43 Thereby, children should also be informed about the dangers of using media.44 Parents, legal guardians and pedagogues working with children should be taught of the mandate of media and be provided with material on children's rights, so that they can guide the children under their care in the interaction with media.45 In turn, journalists who work with children should be supplied with material on children’s rights, too.46 In this context, the right to education in Articles 28 and 29 CRC is of utmost importance. The right to education, in conjunction with the child’s access to the mass media, encompasses the competence and literacies required in the modern world which includes online literacy which has both a protective and a participatory function by providing children with the skills and abilities to take steps to manage their online lives.47 Another concern expressed by the CRC Committee relates to the increased commercialisation of play, which pressures parents into buying toys and games (both offline and online) for children, and children being targeted by toy and game manufacturers with commercial messages embedded into their online gaming experiences (in-game advertising, interactive tools), often without their understanding or consent. In that regard, the CRC Committee encourages States Parties to develop policies and take the necessary measures to protect children from this kind of marketing.48 Article 17, sentence 2 lit. c CRC calls upon States Parties to encourage the production 11 and dissemination of children’s books. Books are the only form of the mass media that receive explicit attention under Article 17 CRC, which is due to the special role the Contracting States assigned to books at the time of drafting the Convention. 49 The obligation incumbent upon States Parties to encourage the production and dissemination of books is primarily to be understood as a duty to provide financial support. The CRC Committee has expressed the need to support dissemination through the provision of tax reductions50 and has drawn attention to the shortage and limited access to books because of their cost.51 But it has also suggested that States Parties ensure the quality of textbooks in

41 See J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 628-629. 42 See J Maywald (2016): 25 Jahre UN-Kinderrechtskonvention, in: L Krappmann/C Petry (eds.), Worauf Kinder und Jugendliche ein Recht haben, 2016, p. 57 et seq. 43 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, paras 256, point 4. 44 CRC Committee, Day of General Discussion on digital media and children’s rights, 2014, paras 94 et seq. 45 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, para. 256, point 7. 46 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, para. 257, points 10, 12. 47 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 500. See also → Article 29 mn. 5. 48 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 57. 49 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, para. 21. 50 CRC Committee, Concluding Observations: Lithuania, CRC/C/15/Add.146, 2001, para. 27. 51 CRC Committee, Concluding Observations: Mozambique, CRC/C/15/Add.172, 2002, paras 56-57; Sierra Leone, CRC/C/15/Add.116, 2000, para. 66.

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school and offer literacy programmes for children.52 However, the forms of media to be promoted are not limited to children’s books as an analogue medium; they also include the full range of child-friendly digital books and media as well as even music, theatre and other artistic performances for children.53 Furthermore, the dissemination of children’s books should be promoted through the establishment of children’s libraries or children’s sections in libraries.54 In that regard, the right to play according to Article 31 CRC is interrelated with Article 17 CRC. At least, the CRC Committee encourages States Parties to develop policies and take the necessary measures to protect the opportunities of the digital environment for all children when playing, and stresses the importance of equal access to the Internet and social media.55 12 Pursuant to Article 17, sentence 2 lit. d CRC, the States Parties shall encourage the mass media to take into particular account the linguistic needs of indigenous children or those belonging to a minority. In essence, the norm makes any child considered a minority or indigenous child an intended beneficiary of a State’s obligation to encourage the mass media to have regard to his or her linguistic and cultural needs.56 This demand primarily includes children’s access to media information in their own minority language.57 Article 17, sentence 2 lit. d CRC is based on the requirements of Article 30 CRC which guarantees specific children’s rights to enjoy their own culture, practise their own religion, and use their own language.58 13 Article 17, sentence 2 lit. e CRC finally requires States Parties to introduce measures which encourage the development of appropriate guidelines for the protection of the child from information and material injurious to their well-being. One possibility to fulfil the requirements of Article 17, sentence 2 lit. e CRC may consist of a self-commitment by the mass media through the adoption of voluntary codes of conduct to protect children from material disseminated that may be harmful to their well-being and development. At least, the CRC Committee recommends that States Parties take all necessary measures to protect children from harmful material and to consider the adoption of specific legislation or the elaboration of constructive collaboration programmes in order to encourage the mass media to contribute to the realisation of children’s rights.59 These self-regulatory codes of the mass media may be manifested through a restriction of violent television programming at certain times of day, through clear and unequivocal warnings regarding the content of a programme and through the technical possibility to block certain programmes. Compliance with these voluntary commitments should be reviewed at regular intervals by the State authorities.60 Another measure to be taken in 52 CRC Committee, Concluding Observations: Greece, CRC/C/15/Add.170, 2002, para. 66; Mozambique, CRC/C/15/Add.172, 2002, para. 56; Madagascar, CRC/C/15/Add.218, 2003, para. 36; Latvia, CRC/C/LVA/CO/2, 2006, paras 28-29. 53 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, para. 256, point 5. 54 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, para. 256, point 3. 55 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, p. 7-8. 56 J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 631. 57 CRC Committee, Committee General Comment No. 11, CRC/C/GC/11, 2009, para. 40. 58 See → Article 30 mn. 1. 59 See CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 38; Romania, CRC/C/ROM/4, 2009, para. 42; Greece, CRC/C/GRC/CO/2-3, 2012, para. 39; El Salvador, CRC/C/SLV/CO/3-4, 2010, para. 42. 60 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, para. 256, point 6. See also CRC Committee, Concluding Observations, Italy, CRC/C/ITA/CO/3-4, 2011, para. 32.

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order to fulfil the aim of Article 17, sentence 2 lit. e CRC is the international cooperation with independent media monitoring institutions. The consumer should thereby exercise direct influence upon issues of media ethics.61 The CRC Committee also establishes the same requirements for companies from the digital sector, which should be encouraged by the States Parties to provide measures ensuring online child safety.62 In particular, States Parties should ensure that marketing and advertising on digital platforms and smartphone apps do not induce minors to make uninformed consumer choices, but rather use clear and child-friendly product names.63 As regards the information and material that are injurious to the well-being of 14 the child, the most obvious is the potential harm associated with the content of the information that children receive from the mass media. The CRC Committee has not addressed this issue in detail but only in very general terms. The Committee’s concerns extend to the programmes containing brutal violence and pornography64 as well as to advertisements leading to potentially harmful consumption patterns of food, drugs and toys.65 Beyond the content, there are also risks associated with the amount of time children spend accessing the mass media, their participation in the mass media, the representation of children as a cohort in the mass media, and the nature of the reporting on individual children. As regards the latter, the CRC Committee urges the States Parties to develop guidelines for the production of reports concerning child abuse, which balance the interest of the public in information on the one hand and the protection of the dignity of the child and the child’s right to privacy on the other hand. In any case, the child concerned must remain anonymous in those reports.66 The representation of children in the media affects not only the influence of understanding and treatment of children in society but also a child’s sense of his or her own. Therefore, the CRC Committee recommends States Parties to encourage the mass media to portray an image of children which is nuanced and well-informed and does not rely on narrow stereotypes.67 There is also the potential for misuse of social media to harm children. The CRC Committee urges States Parties to protect children against cyber mobbing and other forms of online humiliation as well as against grooming in social forums on the Internet.68 Children should be provided with age-appropriate information about web-based safety and appropriate protective measures.69

61 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, para. 256, point 11. 62 CRC Committee, Day of General Discussion on digital media and children’s rights, 2014, paras 96 et seq. See also SW Sacino, Article 17, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2012, p. 1 et seq. 63 S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 378. 64 CRC Committee, Concluding Observations: Australia, CRC/C/15/Add.268, 2005, para. 34; Albania, CRC/C/ALB/CO/2-4, 2012, para. 37; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 38; Azerbaijan, CRC/C/AZE/CO/3-4, 2012, para. 44. 65 CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 32; Romania, CRC/C/ROM/CO/4, 2009, para. 42; France, CRC/C/FRA/CO/5, 2016, para. 39. 66 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 1996, para. 256, point. 9. See also CRC Committee, Concluding Observations: Austria, CRC/AUT/CO/3-4, 2012, para. 31; Thailand, CRC/C/THA/CO/3-4, 2012, para. 45; Andorra, CRC/C/AND/CO/2, 2012, para. 28. 67 CRC Committee, General Discussion on “The Child and the Media”, CRC/C/50, 22 March 1996, p. 80. See also J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 636-637. 68 CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, para. 32 b. 69 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 40 et seq., 58.

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In all the aforementioned recommendations, which the CRC Committee has developed on the basis of Article 17, sentence 2 lit. e CRC, it is the Contracting States which are primarily and directly addressed in order to develop suitable positive measures against the mass media's potential risks on children. In addition, the CRC Committee also focuses on parents and guardians, who are not required to make an immediate but an indirect commitment to the well-being of the child. This third-party effect, which is indirectly mediated through the State's obligations to protect the child, has its dogmatic ground in Articles 5 and 18 CRC which both assign parental authority a decisive responsibility for the child’s development and well-being.70 Parents have thus the primary responsibility to undertake efforts to support their children in the use of digital media and devices. Yet, parents often feel insecure due to the complexity of digital technology and are challenged by rapid take-up of new apps.71 Therefore, the CRC Committee urges the States Parties to train children, teachers and families on the safe use of information and communication technologies, to provide adequate online training to parents and caregivers, to enhance their technical skills, raise awareness among children and families on the severe effects that cyber bullying can have on their peers, and increase the involvement of social media outlets in efforts to combat cyber bullying. 72 All these efforts, of course, must not lead to an inappropriate interference with the child’s right to freedom of information as guaranteed in Article 13 CRC. For this reason, the CRC Committee encourages States Parties to ensure that policies and tolls, such as filters to block certain information on the Internet, do not have a negative effect on the child’s right to seek, receive, and impart information and ideas in accordance with the age and maturity of the child.73 What is decisive is that an appropriate and proportionate balance is struck in each single case between the need for children to be protected from information and material injurious to their well-being on the one hand and children’s right to freedom of information on the other hand.74 16 Finally, the CRC Committee recognises that duties and responsibilities to respect the right of children in the online world extend in practice beyond the State and State-controlled services and apply to private actors and business enterprises. Therefore, it points out, all businesses must meet their responsibilities regarding children’s rights and States must ensure that they do so.75 In particular, Internet providers are urged to ensure the safety of products and services and to restrict access to products and services that are not suitable for children or that may cause them harm.76 Furthermore, Internet service or content providers should establish or participate in operational-level grievance mechanisms for individuals and communities who may adversely be impacted, as indicated in the UN Guiding Principles on Business and Human Rights (2011).77 15

70 See E Lievens, in: E Brems/E Desmet/W Vandenhole (eds.), Children’s Rights Law in the Global Human Rights Landscape, 2017, p. 231, at 233 et seq.; S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 378. 71 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 505. 72 CRC Committee, Concluding Observations: United Kingdom, CRC/C/GBR/CO/5, 2016, para. 49. 73 CRC Committee, Concluding Observations: Turkey, CRC/C/TUR/CO/2-3, 2012, para. 41. 74 J Tobin/E Handsley, Article 17, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 600, at 641-642. See also S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 379. 75 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 58. 76 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 58. See also UNICEF/Save the Children/United Nations Global Compact, Children’s Rights and Business Principles, 2012. 77 See UN Guiding Principles for Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, 2011, available at https://www.unglobalcompact.org/library/2.

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With regard to children, this means that Internet providers should give easily accessible and child-friendly information on how to report and complain about interferences with rights and how to seek redress.78

III. Embedding of Article 17 CRC into the System of International Human Rights Protection A norm similar to the content of Article 17 CRC cannot be found in any other 17 international human rights treaty. However, there are various requirements and guarantees in international human rights law that are capable of flanking and reinforcing the child-specific media law: At first, Article 17 CRC is particularly closely linked to the child’s right to freedom of expression and information, which is contained in both Article 13 CRC and other human rights conventions (e.g., Article 19 para. 2 ICCPR and Article 10 para 1 ECHR). The child’s right to freedom of expression must not be equated with the child's right to have a say within the meaning of Article 12 CRC.79 Freedom of expression protects the right of the child to have an opinion on any matter and to express his or her opinion on any question unhindered and free by words, pictures or deeds, and thus primarily acts as a classic defence right against unlawful State interferences. In addition, there are positive obligations upon States Parties when private third parties restrict disproportionately the freedom of expression of the child. 80 In particular, according to the CRC Committee, States Parties have to make sure that private children's and youth magazines as well as private media institutions offer possibilities for children to express their opinion freely.81 Furthermore, children and young people should be involved meaningfully in the decision-making processes leading to the creation of digital policies.82 This obligation follows from Article 12 CRC. According to the CRC Committee, States Parties should promote the exchange and sharing of ideas relating to digital media with all stakeholders, especially children.83 In addition to the right to freedom of expression, the comprehensive and cross-bor- 18 der right to freedom of information is also guaranteed under human rights law (see, e.g., Article 13 CRC, Article 19 para. 2 ICCPR, Article 10 para. 1 ECHR). Like the right to freedom of expression, the right to freedom of information includes both defence rights against unlawful State interference and positive duties of the States to ensure protection against interferences of non-State actors.84 In the context of the child’s access to the mass media under Article 17 CRC, the CRC Committee calls on the States Parties to provide children with basic access to information so they can participate appropriately in social life. This access requirement includes the access to printed as well as electronic

78 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 504. 79 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 81. See also → Article 12 mn. 39. 80 See CRC Committee, Concluding Observations: Argentina, CRC/C/SR.178, 1994, para. 40; Georgia, CRC/C/SR.914, 2003, para. 44. 81 CRC Committee, Concluding Observations: Mauritius, CRC/C/SR.333, 1996, para. 18; Uruguay, CRC/C/SR.1235, 2007, para. 16. 82 E Lievens, in: E Brems/E Desmet/W Vandenhole (eds.), Children’s Rights in the Global Human Rights Landscape, 2017, p. 231 et seq. 83 CRC Committee, Report of the Day of General Discussion on Digital Media and Children’s Rights, 2014, para. 91. 84 See J Ukrow, Internationaler und europäischer Jugendmedienschutz, Recht der Jugend und des Bildungswesens 2017, p. 278, at 286 et seq.

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information85 and is closely related to the right to education, which is evidenced in Articles 28 and 29 CRC. 19 Of course, international human rights protection does not support the child's unconditional or absolute right to freedom of expression and information. On the contrary, restrictions are permissible under certain conditions. Article 13 para. 2 CRC, Article 19 para. 3 ICCPR and Article 10 para. 2 ECHR refer, in particular, to the rights and reputation of others and to the protection of public order and national security. In practice, typical cases of collision arise with regard to the freedom of film, press and radio broadcasting of third parties. The right to privacy of third parties may also justify the restriction of the child's freedom of expression and information.86 This applies both to the Internet communication as well as to the expression of opinions in the offline world. However, given the triumphal march of the new media, restrictions on the freedom of expression and information of children are now primarily relevant in Internet-based communication, which is why the media clause of Article 17 CRC can act as a legal barrier to the scope of Article 13 CRC.87 In any case, the CRC Committee calls for positive measures of the State authorities to strike a fair balance between the freedom of expression and information of the child on the one hand and the positives duties on States Parties to protect the right of Article 17, sentence 2 lit. e CRC on the other hand. 88 In the context of these limitations, consideration must also be given to the increasing development of the child, his or her age and degree of maturity. Any blocking or filtering access to content must further consider carefully whether it is in the child’s best interests to impose limitations and whether such limitations unduly restrict children’s use of or access to certain types of information or expression.89 20 Closely related to the "mandate of the media" according to Article 17 CRC are also the right to private life enshrined in various human rights treaties and the freedom of correspondence which is usually guaranteed in the same norm. Although, e.g., Article 16 para. 1, alternative 4 CRC, Article 17 para. 1, alternative 4 ICCPR and Article 8 para. 1, alternative 4 ECHR speak expressly only of "correspondence", with regard to technological progress, all forms of communication over a certain distance are covered by their scope.90 The protection of online correspondence relates primarily to its secrecy insofar as it is not made public. Thereby, the close relationship between freedom of correspondence and protection of privacy becomes clear.91 Thus, publicly accessible newsgroups, chat rooms or homepages are covered neither by the right to privacy nor by the right to freedom of correspondence, but have to be subsumed under the right to freedom of expression.92 On the other hand, certain forms of social media are likely 85 CRC Committee, Concluding Observations: Portugal, CRC/C/SR.251, 1995, para. 15; Timor-Leste, CRC/C/SR.1289, 2008, paras 18, 37 et seq. 86 S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 379. 87 Similarly, S Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression, Human Rights Law Review 10 (2010), p. 33, at 62 et seq. See also → Article 13 mn. 13. 88 CRC Committee, Concluding Observations: Japan, CRC/C/SR.942, 2004, para. 49. 89 See L Smith, in: T McGonagle/Y Donders (eds.), The United Nations and Freedom of expression and Information: Critical Perspectives, 2015, p. 145 et seq.; E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 495. 90 Clearly so, M Nowak/WA Schabas, CCPR Commentary, 3rd edn. 2019, Article 17 mn. 53. See also → Article 16 mn. 8. 91 E Lievens, in: E Brems/E Desmet/W Vandenhole (eds.), Children’s Rights Law in the Global Human Rights Landscape, 2017, p. 231, at 234; U Rake, Digitale Kommunikation von Kindern. Grenzen der elterlichen Kontrollbefugnisse, Zeitschrift für das gesamte Familienrecht 2018, p. 1717, at 1719. 92 S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 380.

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to fall under the freedom of correspondence if the average users can assume that their statements are treated confidentially because they have admitted only a limited "circle of friends" to their social media accounts.93 Article 16 CRC provides that a child shall not be subject to arbitrary or unlawful interference with his or her privacy including online privacy. This right should be respected by the States Parties which have also the duty to protect the child against interferences by third parties, including the child’s legal representative.94 Of course, it remains problematic that children and adolescents are often unaware of how easy it is for anyone to discover, see and read social network entries. The risk that comments or photos are passed onto third parties without authorisation is often underestimated by minors.95 Here, the States Parties are called upon to enact effective protective measures, such as awareness-raising campaigns. These should include campaigns on cyber bullying.96 Furthermore, in the context of commercial communication, the CRC Committee highlights the important role of the States Parties in providing adequate incentives for the private sector to adopt fair advertising practices in order to allow children to make informed consumer decisions.97 States Parties are also encouraged upon to acknowledge that in certain circumstances, 21 it is conceptually difficult to reconcile the child’s right to privacy with the legitimate parental, societal and public interest in protecting children from harm in the digital environment. The legitimate objective of shielding children from potential risks associated with online activities must therefore be balanced against ensuring the child’s right to privacy.98 In this context, it is to bear in mind that in relation to media and digital environments, modern theories of child development evidence that age-based restrictions to use digital services appear rather outdated.99 For instance, the EU General Data Protection Regulation (GPDR) restricts the processing of children’s personal data by providers of online information services without parental permission under the age of 16 years, generally.100 The importance of taking into account the evolving capacities of children and not their chronological age in the digital environment has been highlighted by the CRC Committee.101 Furthermore, it may be problematic to only rely on parents’ will in protecting their children’s privacy, since some parents disregard their children’s privacy in the digital environment, for instance, when sharing pictures or clips of them, thereby making aspects of their children’s lives public, often without the consent of the child. This leads to a conflict of rights between the child’s privacy versus the parent’s rights to freedom of expression.102 In considering this dilemma, parents should take

93 Similarly, R Uerpmann-Wittzack/M Jankowska-Gilbert, Die Europäische Menschenrechtskonvention als Ordnungsrahmen für das Internet, MultiMedia und Recht 2008, p. 83 et seq. 94 See FRA, Handbook on European Law Relating to the Rights of the Child, 2015. 95 For more detail see H Steenhoff, Das Internet und die Schulordnung, Neue Zeitschrift für Verwaltungsrecht 2013, p. 1190, at 1192 et seq. 96 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 502. 97 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 59. 98 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 497. 99 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 490. 100 Regulation (EU) 2016/679, OJ 2016, L 119/1. 101 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 39. 102 S Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, Emory Law Journal 66 (2017), p. 839 et seq.

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the child’s best interests into consideration and consult the child before they share information about them, in accordance with their age and maturity.103 22 Finally, the digitisation of modern society requires a reorientation of protection against sexual exploitation. There is no doubt that international treaties can impose duties to protect on the Contracting States in order to prevent grave human rights violations.104 This is particularly the case with protection form sexual exploitation as enshrined in Article 34 CRC.105 However, the problem is that child pornography and sexual abusive presentations of minors on the Internet find a wide, especially transnational dissemination that is difficult to regulate in national efforts only.106 The corresponding material is ubiquitous and available at any time at a low cost. Both the providers of the relevant material and the users can be relatively easily anonymised. The constant availability of mobile recording devices also promotes the virtual, transnational dissemination of images of completely or partially unclothed children, especially for sexual purposes.107 It is true that current international law does not contain a principle that national law may not be applied to foreign, extraterritorial content. However, a prerequisite for international access to extraterritorial situations is a national reference point, a "genuine link". In addition, unilateral enforcement measures on foreign territory, which the territorial State does not agree with, violate the international prohibition of intervention.108 Therefore, the regulation of cross-border transactions and their effective enforcement in foreign territories are the central problems of today's youth media law. 23 Nevertheless, the danger of the Internet lies not only in pornographic or comparable contents which are distributed widely, but also in chat forums and social networks, where it is easy for paedophiles to make contact with unsuspecting children under veiled or anonymous identity and to entangle them in sexually connoted conversations or even to initiate real contacts.109 Notwithstanding all State intervention possibilities and technical solutions, such as punishment of virtual abuse, they will always be limited in their effect in view of the ubiquity of the Internet and the associated extraterritoriality of the measure.110 Therefore, the parents have the decisive role to play in making their children aware of the dangers of the Internet and, if necessary, to monitor their online activities. It is also important to sensitize children in schools for the risks of the Internet and to educate them to use digital media responsibly. This aspect is covered by Article 17, sen-

103 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 497. With reference to Article 6 of the EU General Data Protection Regulation see also U Rake, Kinderrechte und Sorgerechtsbefugnisse bei elterlichen Foto-Postings in sozialen Medien, Zeitschrift für das gesamte Familienrecht 2020, p. 1064, at 1066 et seq. 104 O De Schutter, International Human Rights Law, 2nd edn. 2014, p. 427 et seq. 105 See → Article 34 mns. 6, 15. 106 See L Jones, Regulating child pornography on the Internet. The implications of Article 34 of the United Nations Convention on the Rights of the Child, International Journal of Children’s Rights 6 (1998), p. 55 et seq. 107 See R Busch, Strafrechtlicher Schutz gegen Kinderpornographie und Missbrauch, Neue Juristische Wochenschrift 2015, p. 977 et seq. 108 See the analysis by S Schmahl, Zwischenstaatliche Kompetenzabgrenzung im Cyberspace, Archiv des Völkerrechts 47 (2009), p. 284 et seq. See also M Kment, Grenzüberschreitendes Verwaltungshandeln, 2010, p. 69 et seq. 109 See L Jones, Regulating child pornography on the Internet. The implications of Article 34 of the United Nations Convention on the Rights of the Child, International Journal of Children’s Rights 6 (1998), p. 55, at 71 et seq.; J Ukrow, Internationaler und europäischer Jugendmedienschutz, Recht der Jugend und des Bildungswesens 2017, p. 278, at 283 et seq. 110 See S Schmahl, Zwischenstaatliche Kompetenzabgrenzung im Cyberspace, Archiv des Völkerrechts 47 (2009), p. 284, at 285 et seq.

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tence 2 lit. e CRC and by Articles 28, 29 CRC.111 In particular, mass media and educational tools at school play a pivotal role in informing the public, including children, about risk issues. The 2016 Report of the Office of the Special Representative of the Secretary-General on Violence against Children indicates that the Internet, social media platforms and mobile networks play a significant role in awareness-raising campaigns on violence prevention. States Parties should encourage the media and platform providers to disseminate age- and format-appropriate information to children and young persons on risk issues as online sexual exploitation or similar types of violence.112 Lastly, in view of the terrorist attacks in Paris of 13 November 2015, the UN Security 24 Council has for the first time issued a resolution in which it expresses its regret that the Internet and the new media are being used to recruit young people into terrorist organisations.113 Article 17 CRC has also played a role in the CJEU case-law. Thus, the Luxembourg Court has considered a restriction on the free movement of DVD videos for the protection of the child's welfare justified by making explicit reference to Article 17 CRC.114 In particular, the Court concluded that Germany’s rating process of media materials before going on sale constituted a lawful restriction of the EU’s free movement of goods provisions, given that they aimed to protect the welfare of children in the sense of Article 17 CRC.115

Article 18 [Upbringing by the Parents] 1. 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. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children. 3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Parental Rights and Responsibilities (Article 18 para. 1 CRC) . . . . . . . . . . . . . . . . III. State Support and Assistance (Article 18 para. 2, para. 3 CRC) . . . . . . . . . . . . . . . IV. Embedding of Article 18 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 8 12

111 See H Thorgeirsdóttir, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2006, Article 13 mn. 88; S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 380. 112 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 502. 113 Security Council Resolution 2250 (2015) on youth, peace and security, S/RES/2250 (2015) of 9 December 2015, para. 11. 114 CJEU, Judgment of 14 February 2008, Case C-244/06, ECLI:EU:C:2008:85, paras 42, 52 – Dynamic Medien GmbH. 115 Ibid. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 17.10.

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I. Generalities 1

Under Article 18 CRC the parents, meaning both parents alike, shall be responsible for the upbringing and development of their child. Article 18 CRC thus affirms the primary role of parents in the upbringing of their children. Such a position aligns with the status of the family under international law as the natural unit of society, as laid down, for instance, in Articles 23 and 24 ICCPR and in Article 10 ICESCR. Article 18 CRC is thus an example of the fact that the Convention does not threaten the authority of parents or seek to undermine or counteract the family unit.1 The contrary is the case, as is already shown in Recitals 5 and 6 of the Preamble to the CRC.2 Also, Article 18 para. 1 CRC expressly outlines the primary responsibility of parents or legal guardians for the upbringing and development of a child. However, there are indeed some peculiarities of the norm when compared to other international standards. Article 18 CRC in its entirety specifically mentions the role of parents relative to the role of the State with respect to the upbringing of children. Furthermore, the article addresses the common responsibility of both parents and does not follow the historical tendency in most societies for women to assume primary, if not exclusive, responsibility for the care of children by, at the same time, prioritising the rights and the status of the father. 3 In that regard, Article 18 CRC follows the reorientation of international law towards a vision that was committed to gender equality including the role of women within the family, which was first visible in the adoption of CEDAW. In fact, it is Articles 5, 11 and 16 CEDAW which provide the normative origins, ideas and inspirations for Article 18 CRC.4 Finally, Article 18 CRC is clear in that the best interests of the child have to be the basic concern of both parents (see Article 18 para. 1, sentence 3 CRC). Thus, parental rights are not given primacy or prerogative over the well-being and the best interests of the child.5 Article 18 CRC rather reinforces the priority of the child’s best interests under Article 3 CRC in regard to the upbringing of children by their parents. In terms of content, Article 18 CRC builds upon Article 5 CRC which has the aim to describe the guidance and management function of the parents, instead of placing the child under their authority.6 Article 9 para. 3 CRC is to be understood as an exception to Article 18 para. 1 CRC.

II. Parental Rights and Responsibilities (Article 18 para. 1 CRC) 2

In some countries, the national law provides that fathers are considered as the sole legal guardian of their children and thus gives the mothers custody over minor children only, while the responsibility for older children is exclusively given to fathers. In addition, there are Islamic countries where a woman who remarries after a divorce loses custody over her children and where a non-Muslim woman will never get custody over 1 J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 647. See also → Article 5 mn. 10. Different assessment by M Guggenheim, What’s Wrong with Children’s Rights, 2005, p. 247. 2 See → Preamble mn. 4. 3 See, e.g., CRC Committee, Concluding Observations: Democratic People’s Republic of Korea, CRC/C/PRK/CO/5, 2017, para. 30; Tonga, CRC/C/TON/CO/1, 2019, paras 37-38. Further see J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 647. 4 For more detail see J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 648-649; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 18.02. 5 See CRC Committee, Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, para. 42. 6 See → Article 5 mns. 9 et seq.

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a child in case of divorce with a Muslim man. The CRC Committee regularly addresses these issues in dialogues with those States Parties in which the problem of parental inequality exists.7 It expresses concerns about the prevalent stereotypes concerning the tasks and roles of women and girls and recommends that the States Parties take positive measures to encourage mothers and fathers to share responsibility for their children equally, in accordance with Article 18 para. 1 CRC.8 In addition, the CRC Committee expresses its particular concern on national laws recognising polygamous marriage which undermines equal parenting rights and responsibilities between women and men and have adverse effects on children.9 Within the same line, the CRC Committee also aims at supporting the role of the father for the normal development of children and states that not only mothers should be given initial responsibility for babies or children of younger age. Article 18 para. 1 CRC is clearly based on the idea of parental equality in the upbringing and development of the child at all ages.10 The CRC Committee therefore recommends the States Parties to develop family education and awareness through providing support, including training, for parents in parental guidance and joint parental responsibilities.11 However, this does not mean that States Parties must guarantee that parents do have 3 common responsibilities for the care of their children. Article 18 para. 1 CRC does not require a certain result but only imposes an obligation on States Parties to use their best efforts to ensure that parents or legal guardians satisfy their common responsibilities with respect to their children.12 States Parties have the obligation to take all appropriate measures in light of the available resources to promote and ensure respect for the principle of common parenting responsibilities. In other words, the use of the phrase “best efforts” in Article 18 para. 1 CRC reflects the legal and practical constraints on a State’s capacity to shape, organise and influence the allocation of parenting responsibilities between parents.13 In any case, Article 18 para. 1 CRC does not impose a direct obligation on the parents or legal guardians of a child.14 Each family remains free to allocate common parental responsibilities differently.15 Therefore, the CRC Committee goes too far in its Concluding Observations when referring to the common, joint and equal responsibilities of parents as if these terms were synonymous and directly binding upon par-

7 See, for instance, CRC Committee, Concluding Observations: Guinea, CRC/C/GIN/CO/2, 2013, paras 59 et seq.; Kuwait, CRC/C/KWT/CO/2, 2013, para. 51; Iraq, CRC/C/IRQ/CO/2-4, 2015, para. 50; Qatar, CRC/C/QAT/CO/3-4, 2017, para. 26. Further see O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 172. 8 See, e.g., CRC Committee, Concluding Observations: Central African Republic, CRC/C/CAF/CO/2, 2017, paras 46 et seq. 9 CRC Committee, Concluding Observations: Kenya, CRC/C/KEN/CO/3-5, 2016, para. 39. See also → Article 5 mns. 3 et seq. 10 See R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 128, 236 et seq.; N Vuckovic Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2012, p. 166; O Khazova, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 161, at 174. 11 CRC Committee, Concluding Observations: Maldives, CRC/C/MDV/CO/4-5, 2016, para. 51. 12 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 311-312. 13 For more detail see J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 650-653. 14 Rightly so, J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 651. 15 See Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, paras 82-92.

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ents.16 But, on the other hand, it is, of course, consistent with the requirements under Article 5 lit. b and Article 16 para. 1 lit. d CEDAW and under Article 18 CRC that the CRC Committee expresses concern at unequal allocation or parental responsibilities between parents and, in particular, at national laws that assign parental responsibilities exclusively to fathers while at the same time giving the workload for upbringing the children only to mothers.17 4 The States Parties’ obligation to take all appropriate measures to ensure common parental responsibilities for the child’s upbringing becomes problematic in cases where parents of a (marital or non-marital) child18 are separated on more than a temporary basis. An obligation of result on the part of the States Parties to provide for joint custody for separated parents does not arise from Article 18 para. 1 CRC.19 A State cannot guarantee that and how parents will care for their children. However, appropriate measures must be taken to encourage and support parents to assume their responsibility for the care of their children even in the case of separation or divorce.20 The responsibility of parents, regardless of whether they live together or are separated, to contribute to the realisation of children’s rights is not limited to financial responsibility but also includes the fostering of social, cultural and other values.21 Fundamentally, a divorce or separation of the parents shall not dissolve the existing bonds between the child and the father or mother; these relations must not depend on the continuation of the parents’ marriage or living together.22 The continuity of shared parental care and common responsibilities even after divorce or separation is important because it gives the child the least sense of actually losing a parent.23 Exceptions are only allowed if a sustained, destructive and profound conflict between the parents is detrimental to the child's best interests; these cases are covered by Article 9 para. 3 CRC. 5 The same principles apply to the separation of unmarried parents because Articles 5 and 18 CRC both follow a broader (factual) concept of family.24 However, in regards to the joint upbringing of the child, Article 18 para. 1 CRC refers only to a principle, and thus does not necessarily require that both parents are equally entitled to parental rights. Therefore, an obligation to introduce a parity caregiver model as a rule model can be derived neither from Article 5 CRC nor from Article 18 para. 1 CRC. 25 This applies once more, as Article 9 para. 3 CRC contains a special right of access to the child in the event of separation of the parents. However, Article 18 para. 1 CRC stipulates that in case of dissolution of the marriage, the allocation of parental authority shall not 16 See, e.g., CRC Committee, Concluding Observations: India, CRC/C/15/Add.228, 2004, para. 47; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 48; Afghanistan, CRC/C/AFG/CO/1, 2011, para. 41; Syria, CRC/C/SYR/CO/3-4, 2012, para. 56; Poland, CRC/C/15/Add.31, 1995, para. 33. 17 CRC Committee, Concluding Observations: Algeria, CRC/C/DZA/CO/3-4, 2012, para. 48; Morocco, CRC/C/MAR/CO/3-4, 2014, para. 45; Kuwait, CRC/C/KWT/CO/2, 2013, para. 52; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 47. See also J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 655. 18 See → Article 2 mn. 21. 19 See CRC Committee, 2nd Periodic Report of the Federal Republic of Germany, CRC/C/83/Add.7, 2003, para. 394. 20 CRC Committee, Concluding Observations: Kyrgyzstan, CRC/C/15/Add.127, 2000, para. 36; Norway, CRC/C/MNG/CO/3-4, 2010, para. 33; Belarus, CRC/C/BLR/CO/3-4, 2011, para. 43. 21 CRC Committee, Day of General Discussion on the Role of the Family in the Promotion of the Rights of the Child, CRC/C/24, 1994, para. 2. 22 M Palm-Risse, Hilfe für die Wehrlosen: Die Konvention über die Rechte des Kindes, Vereinte Nationen 1990, p. 101, at 102; R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 235-237. 23 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 42. 24 See → Article 5 mns. 2 et seq. 25 See (German) Federal Constitutional Court, Decision of 24 June 2015, 1 BvR 486/14, para. 18.

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be discriminatory.26 In case of separately residing parents, the parent with whom the child lives has, for practical reasons, an increased responsibility for the child. At the same time, the State party must act in the best interests of the child when separated parents cannot come to an agreement on the exercise of their parental responsibilities. 27 The exercise of shared responsibility for a child requires a minimum consensus of the parents. Where the parents are neither willing nor able to cooperate in joint custody of the child, a situation can arise which is contrary to the child’s best interests, resulting in the child carrying the burden of the conflict. Therefore, it is not possible to ensure joint custody in each case concerning separated or divorced parents. Article 9 para. 3 CRC confirms such an interpretation.28 States Parties enjoy significant discretion under Article 18 para. 1 CRC with respect 6 to the measures they adopt to fulfil their obligation to use their best efforts to ensure recognition of the principle of common parental responsibilities.29 Nevertheless, there are limits. The measures adopted have to be effective and consistent with the other provisions of the Convention. This means, in the view of the CRC Committee, that States must undertake appropriate legislative, administrative, social, educational and awareness-raising measures to counter the social and cultural assumptions that allocate parenting responsibilities along gender lines.30 Any State regulation introducing exceptions to the shared responsibility of both parents for the upbringing and development of the child must be strictly proportionate. Accordingly, such regulations must not only ensure the child’s best interests, but also be necessary and appropriate. While the exercise of joint custody by separated parents is unusually achieved without problems, and the State can be forced to partially or completely curtail custody rights, a refusal to grant rights of access must be based upon especially serious grounds.31 The significance of the phrase that it is the parents or, as the case may be, the legal 7 guardians who have a common responsibility for the upbringing and development of the child and that the best interests of the child must be their basic concern cannot be underestimated for, at least, three reasons. Firstly, Article 18 para. 1 CRC affirms in unequivocal terms that it is the parents, rather than the State authorities, who have primary responsibility to the care of their children.32 The additional inclusion of legal guardians in the provision is due to the idea that the primary responsibility for the care of a child has to rest with the persons who have legal responsibility for the upbringing of the child.33 Secondly, the best interests of the child have to be the parents’ basic concern. The principle of basic concern is to be understood in parallel to the principle of primary consideration as laid down in Article 3 CRC.34 Children’s best interests do not necessarily trump the interests of their parents in case of a conflict. But children are not under a 26 H Stöcker, Die UNO-Kinderkonvention und das deutsche Familienrecht, Zeitschrift für das gesamte Familienrecht 1992, p. 245, at 249. 27 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 114. 28 See → Article 9 mn. 11. 29 J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 659. 30 See, e.g., CRC Committee, Concluding Observations: Mongolia, CRC/C/15/Add.264, 2005, para. 32; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 40; Jamaica, CRC/C/15/Add.32, 1995, para. 13; Niue Islands, CRC/C/NIU/CO/1, 2013, para. 48; Cambodia, CRC/C/KHM/CO/2, 2011, para. 44; Djibouti, CRC/C/15/ Add.131, 2000, para. 34. 31 See → Article 9 mn. 12. 32 J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 662. 33 See Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, paras 82-89; E/CN.4/1989/48, 1989, para. 91. 34 See → Article 3 mn. 8.

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patria potestas; rather parents are under an obligation to justify any measure taken that interferes with the interests of a child as being necessary and proportionate to achieve a legitimate aim.35 Thirdly, Article 18 para. 1 CRC does not impose any obligation on States Parties to ensure that the best interests of the child will be the basic concern of parents. As such it is considered by some scholars as creating an “effectiveness gap” in the operation of Article 18 CRC.36 This gap, however, is not significant, since it is filled by Article 3 and Article 9 para. 3 CRC.

III. State Support and Assistance (Article 18 para. 2, para. 3 CRC) Pursuant to Article 18 para. 2 CRC, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and with respect to this goal, be responsible for the development of institutions dedicated to the care of children. The article thus continues the commitment under Article 10 para. 1 ICESCR to the idea that States must assume a proactive role in providing assistance to the family unit.37 Measures regarded as appropriate in terms of Article 18 para. 2 CRC include those which enable the family to fully assume their responsibilities within society. These measures of assistance in parental child-rearing responsibilities taken by the States Parties must be appropriate, effective and consistent with the other provisions of the Convention. The CRC Committee encourages States Parties to develop an integrated, coherent and comprehensive policy of parental assistance through educational training and counselling services in particular for single parents.38 Measures that are primarily of a monetary nature such as tax deductions or child allowances, while appropriate in particular to families living in poverty,39 are not regarded as sufficient. The CRC Committee rather stresses that States Parties should adopt a holistic approach which includes, inter alia, social welfare, workplace flexibility and parental leave.40 9 Particularly in regards to working parents, Article 18 para. 3 CRC stipulates that States Parties shall take all appropriate measures to ensure that children have the right to benefit from child-care services and facilities for which they are eligible. Whereas Article 18 para. 2 CRC merely has the character of a programmatic standard comparable to Article 10 para. 1 ICESCR,41 Article 18 para. 3 CRC expressly contains a right of both the child and his or her working parents to benefit from child-care services and facilities 8

35 For a fuller account see J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 664 et seq. 36 See J Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, Harvard Human Rights Journal 23 (2010), p. 13, at 44. 37 J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 668; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 18.06. 38 CRC Committee, General Comment No. 7, CRC/C/GC/Rev.1, 2006, paras 20-21; General Comment No. 13, CRC/C/GC/13, 2011, para. 47. See also CRC Committee, Concluding Observations: Lithuania, CRC/C/15/Add.146, 2001, para. 30; Italy, CRC/C/ITA/CO/3-4, 2011, para. 37; Egypt, CRC/C/EGY/CO/ 3-4, 2011, para. 62; Grenada, CRC/C/GRD/CO/2, 2010, para. 36. 39 See, e.g., CRC Committee, Concluding Observations: Canada, CRC/C/CAN/CO/3-4, 2012, para. 53; New Zealand, CRC/C/NZL/CO/3-4, 2011, para. 31; Montenegro, CRC/C/MNE/CO/1, 2010, para. 31; Greece, CRC/C/15/Add.170, 2002, paras 48-49; Spain, CRC/C/ESP/CO/3-4, 2010, para. 40. 40 CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 37; Japan, CRC/C/JPN/CO/3, 2010, para. 51. 41 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 262.

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for which they are eligible.42 Its content, however, has a limiting effect. Article 18 para. 3 CRC covers only the use of existing child-based care facilities, meaning that the respective institution has the power to determine the criteria of acceptance and inclusion. 43 It is necessary, however, that the child care facilities maintain child-appropriate standards of quality and that employees are fittingly trained and continuously monitored.44 By contrast, States Parties are not under the duty to offer a certain quantity of child- 10 care services or facilities for all children of working parents. According to Article 18 para. 3 CRC, States Parties shall only take all appropriate measures to ensure the child’s and his or her working parents’ right to such facilities. This formulation demonstrates the relevance of the reservation in regards to available funding as enshrined in Article 4, sentence 2 CRC.45 In respect of the minimum standard to be guaranteed in Article 18 para. 3 CRC, the CRC Committee however requires States Parties to meet the needs of single parents by creating and making available child-care facilities.46 The focus should be on the well-being of the child who should not remain alone and unattended at home.47 Child-care services and facilities should also be established in rural areas.48 However, the obligation to ensure the development of child-care facilities and services does not mandate that States themselves must construct and develop these services; the obligation can also be satisfied if a State enlists the support of non-State actors. The Danish model of child-care, for instance, has been praised by the CRC Committee as a model for other States.49 The French child-care system also stands out positively among the industrialised countries.50 In contrast, the CRC Committee recurrently criticises the lack of child-care facilities in Germany and the lack of nationwide standards to ensure the quality of the care provided by these institutions and services.51 All in all, States Parties enjoy a level of discretion in determining what form of 11 assistance they offer to parents, provided that the assistance is effective and consistent with the provisions of the Convention. The obligations in Article 18 paras 2 and 3 CRC envision a collaborative and supportive role for States and are not contingent on the failure of a parent to fulfil their primary responsibilities towards their children. As such, measures of assistance and support given to parents must be preventive rather than reactive, and by no means punishing. This duty to prevent requires various legislative, educational and social measures to be taken by the States Parties which include aware42 See CRC Committee, Concluding Observations: Cook Islands, CRC/C/COK/CO/2-5, 2020, para. 32. Further see J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 681. 43 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 309. See also M Davis/R Powell, The International Convention on the Rights of the Child: A Catalyst for Innovative Childcare Policies, Human Rights Quarterly 25 (2003), p. 689, at 696 et seq. 44 CRC Committee, Concluding Observations: Russian Federation, CRC/C/15/Add.4, 1991, para. 19; Panama, CRC/C/15/Add.68, 1997, para. 13; Andorra, CRC/C /15/Add.176, 2002, para. 38. See also → Article 20 mns. 3, 14. 45 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 198. Similarly, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 18.08. 46 CRC Committee, Concluding Observations: Jamaica, CRC/C/15/Add.32, 1995, para. 24; Switzerland, CRC/C/15/Add.182, 2002, para. 34. On the other hand see also CRC Committee, Concluding Observations: Switzerland, CRC/C/CHE/CO/2-4, 2015, paras 44 et seq. 47 See CRC Committee, Concluding Observation: Hong Kong, CRC/C/15/Add.63, 1996, para. 28; Iceland, CRC/C/15/Add.50, 1996, para. 19. 48 CRC Committee, Concluding Observations: Honduras, CRC/C/15/Add.24, 1994, para. 27. 49 CRC Committee, Concluding Observations: Denmark, CRC/C/15/Add.151, 2001, para. 5. 50 M Davis/R Powell, The International Convention on the Rights of the Child: A Catalyst for Innovative Childcare Policies, Human Rights Quarterly 25 (2003), p. 689, at p 702 et seq. 51 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add. 226, 2004, paras 48 et seq.; CRC/C/DEU/CO/3-4, 2014, para. 48.

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ness-raising, financial assistance, workplace flexibility for parents, maternity or paternity leave schemes and the development of services to care for children.52 Finally, the CRC Committee is of the opinion that a comprehensive approach to the child’s right under Article 18 CRC in the context of migration should also contemplate measures directed at enabling parents to fulfil their duties with regard to child development.53

IV. Embedding of Article 18 CRC into the System of International Human Rights Protection The emphasis on equal responsibility of both parents for the child’s upbringing in Article 18 para. 1 CRC finds a parallel foundation in Article 5 lit. b CEDAW. In addition, according to Article 24 para. 1 ICCPR, children have a right to such measures of protection from their families, the society and the State, as required by their status as a minor. Although Article 24 para. 1 ICCPR contains no information about how this responsibility should be designated; the Human Rights Committee leaves no doubt that the primary responsibility for the upbringing of children rests with the family in the broad sense of the word and especially with the parents.54 However, as it is common for both parents to be professionally employed outside of the home, States Parties should especially support parents in the performance of the upbringing of their child.55 Similarly, the CESCR Committee calls on States Parties to provide adequate child-care services and facilities. 56 In the case of Hendriks v. The Netherlands the Human Rights Committee has further held that, after a divorce, the father must be granted effective rights of access to the child.57 Only under special circumstances can such a right be denied. A simple refusal of the mother to grant the father a right of access to the child does not constitute such a special circumstance.58 13 At the European level, the EComHR had, from an early time onwards, emphasised the common responsibility of parents in upbringing their children and acknowledged the priority of the interests of the child over those of parents.59 Also, the ECtHR refers to the relevance of the child’s welfare, which may take precedence over the interests of the parents in an individual case.60 The Court also repeatedly underscores that there must be no differentiation between marital and non-marital children. In particular, fathers of children born out of wedlock must not be treated differently in relation to fathers of marital children.61 It is true that in the absence of a joint custody declaration, it is 12

52 See J Tobin/F Seow, Article 18, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 646, at 650-651, 671 et seq. 53 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 31. 54 Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child), HRI/GEN/1/ Rev.7, 2004, para. 6. 55 Ibid. See also M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mns. 4 et seq. 56 CESCR Committee, Concluding Observations: Canada, E/C.12/1/Add.31, 1998, para. 42. 57 Human Rights Committee, Hendriks v. The Netherlands, Views adopted on 27 July 1988, No. 201/1985, A/43/40, 1988, para. 10.4. 58 See H Stöcker, Die UNO-Kinderkonvention und das deutsche Familienrecht, Zeitschrift für das gesamte Familienrecht 1992, p. 245, at 251. 59 EComHR, Decision of 13 March 1980, No. 8427/78, para. 1 – X v. The Netherlands. 60 See only ECtHR, Decision of 7 August 1996, No. 17383/90, para. 78 – Johansen v. Norway; Judgment of 13 July 2000, No. 25735/94, para. 50 – Elsholz v. Germany; Judgment of 15 September 2011, No. 17080/07, para. 93 – Schneider v. Germany. Further see N Dethloff, Familienrecht in Europa – Quo vadis?, Neue Juristische Wochenschrift 2018, p. 23, at 27 et seq. 61 ECtHR, Judgment of 3 December 2009, No. 22028/04, para. 44 – Zaunegger v. Germany.

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justified to assign parental authority only to the mother.62 Yet, it is incompatible with Article 8 ECHR to deprive the father of a child born out of wedlock, in the absence of the consent of the mother, of every opportunity to exercise joint custody. The motivations of the mother for the rejection of the common parental care need not necessarily be based on considerations of the child's best interests.63 Furthermore, there is no reason why the custody of the father of a non-marital child is legally different from that of a father of a marital child after divorce.64 Accordingly, the States Parties must not necessarily give biological fathers the opportunity to challenge the status of the legal father. This is especially the case when a social and family relationship between the legal father and the child exists and the biological father has not yet adopted relevant responsibility towards the child.65 Article 6 of the Recommendation of the CoE Committee of Ministers on parental responsibilities (1984) determines that in case of divorce or separation of the parents, the competent authority shall take appropriate measures.66 The authority may, for example, divide the exercise of parental authority, to the extent that the parents agree to arrange joint custody. In addition, State authorities must, as far as possible, provide the non-custodial parent with the right of access to the child and to maintain personal relations with the child.67 This also applies to non-marital children, including children having a different legal father.68 The ECtHR has also recognised that access rights cannot always be enforced if they contradict the best interests of the child.69 However, strict standards apply to such cases.70 The exclusion of a parent's right of access to the child is incompatible with Article 8, read in conjunction with Article 14 ECHR, when it is done only for religious reasons71 or because of homosexuality of the father.72 Although not specifically established as a human rights court, the CJEU has also 14 addressed the best interests of the child in relation to the parents in the context of the fundamental freedoms. The Court held that an indirect discrimination is present when aid for home-based childcare is determined on grounds of nationality only.73 The CJEU has also served to further combat the discrimination of children with disabilities by ruling that the prohibition of direct discrimination applies not only to persons who are themselves disabled. A breach of the prohibition of direct discrimination was found in the case of a mother who had, compared to another employee in a similar situation, ex-

ECtHR, Judgment of 3 December 2009, No. 22028/04, para. 55 – Zaunegger v. Germany. ECtHR, Judgment of 3 December 2009, No. 22028/04, para. 58 – Zaunegger v. Germany. 64 ECtHR, Judgment of 3 December 2009, No. 22028/04, para. 62 – Zaunegger v. Germany. 65 ECtHR, Decision of 22 March 2012, No. 45071/09, paras 73 et seq. – Ahrens v. Germany. 66 CoE Committee of Ministers, Recommendation No. R (84) 4, of 28 February 1984. 67 ECtHR, Decision of 11 October 2001, No. 34045/96, para. 35 – Hoffmann v. Germany; Judgment of 8 July 2003, No. 3187/96, para. 62 – Sommerfeld v. Germany. 68 ECtHR, Decision of 21 December 2010, No. 20578/07, paras 62, 67 et seq. – Anayo v. Germany; Judgment of 15 September 2011, No. 17080/07, paras 97 et seq. – Schneider v. Germany. 69 ECtHR, Judgment of 23 September 1994, No. 1982/92, para. 55 – Hokkanen v. Finland; Judgment of 27 November 1992, No. 13441/87, para. 90 – Olsson v. Sweden; Decision of 22 March 2012, No. 45071/09, paras 70 et seq. – Ahrens v. Germany. 70 See ECtHR, Judgment of 13 July 2000, No. 25735/94, paras 48, 62 – Elsholz v. Germany; Judgment of 15 September 2011, No. 17080/07, para. 94 – Schneider v. Germany. For more detail see S Graf Kielmansegg, Jenseits von Karlsruhe: Das deutsche Familienrecht in der Straßburger Rechtsprechung, Archiv des Völkerrechts 46 (2008), p. 273, at 285. 71 ECtHR, Judgment of 12 February 2013, No. 29617/07, paras 38 et seq. – Vojnity v. Hungary. 72 ECtHR, Judgment of 21 December 1999, No. 33290/96 – da Silva Mouta v. Portugal. 73 CJEU, Judgment of 7 November 2002, Case 333/00, ECLI:EU:C:2002:641, paras 34 et seq. – Maaheimo; see also CJEU, Judgment of 5 February 2002, Case 255/99, ECLI:EU:C:2002:73, paras 51, 54 – Humer. 62

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perienced less favourable treatment from her employer because of her child’s disability. 74 On the other hand, the CJEU ruled that a national provision that allows employers to disregard time spent on parental leave when calculating holiday entitlement is not in breach with Article 7 of the EU Working Time Directive, which entitles workers to at least four week’s annual paid leave.75 In essence, the CJEU does not see parental leave as “work” but rather as a means of choice. This perception reflects a misunderstanding of the very nature of the parental leave, whose purpose is to enable parents to take care of their child. Equating parental leave to a choice is detrimental both to mothers and fathers and their role as carers.76

Article 19 [Protection from all Forms of Violence] 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope and Objective of Article 19 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. States’ Obligations to Protect Children Against Violence . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 19 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 6 13

I. Generalities 1

Article 19 CRC has primarily, but not exclusively, family grievances and maltreatment at home as well as intra-familial harm in mind. The 2006 UN Global Study on Violence against Children highlights that millions of children suffer physical punishment in their homes and families, which in fact should be a safe place for children.1 Particularly at risk are children with disabilities,2 and children who do not live with their biological parents.3 However, many children are exposed to violence in a broad array of areas, ranging from illegal businesses such as child trafficking, to corporal punishment in

74 CJEU, Judgment of 17 July 2008, Case 303/06, ECLI:EU:C:2008:415, para. 38 – Coleman. See also → Article 2 mn. 8. 75 See CJEU, Judgment of 4 October 2018, Case C-12/17, ECLI:EU:C:2018:799 – Dicu. 76 Rightly so, E Caracciolo Di Torella, Here we go again: The Court, the value of care and traditional roles within the family: Dicu, Common Market Law Review 57 (2020), p. 877, at 833 and 885. 1 PS Pinheiro, World Report on Violence Against Children, 2006, para. 28. See also UN General Assembly Resolution 56/138, A/RES/56/138, 15 February 2002. 2 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 42. 3 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 72 g.

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schools, homes and care facilities.4 Research reveals that more than a billion children have experienced violence or even severe forms of violence in various settings only in the year 2014; some of them were even subjected to multiple forms of violence. 5 Therefore, the CRC Committee stresses that “any other person who has care of the child” also includes the employees of schools, enterprises and care institutions under whose responsibility the child is placed.6 The CRC Committee emphasises that Article 19 CRC is to be understood extensively,7 aiming to capture all forms of harm to children by all possible actors.8 Although Article 19 CRC represents the “core rule” of the Conventions’ model for 2 protecting the child from violence,9 it is closely associated with Article 9 para. 1, sentence 2, Article 24 para. 3 CRC and the special provisions enshrined in Article 32 to Article 36 CRC which seek to protect the child against various forms of sexual and economic exploitation in a wide range of circumstances.10 Simultaneously, Article 19 CRC forms a counterbalance to Article 5 and Article 18 CRC, which leave the care of the child primarily to the family as the smallest social unit. This two-sided role of the family (as protector and potential endangerer of the child’s welfare) is an ongoing challenge for international child rights protection,11 especially since various Contracting States (e.g., Australia, Canada and Iran) still do not prohibit "measured" physical violence or “reasonable chastisement” of the guardians towards their child.12 Therefore, Article 19 CRC is a provision mainly dealing with child maltreatment in family settings.13 On the other hand, Article 37 CRC specifically seeks to protect the child against State violence in juvenile detention centres and, more generally, in the context of imprisonment. 14 This form of violence is thus outside the scope of Article 19 CRC. Article 19 CRC does not make any reference to the impact of violence against 3 children. It is rather irrelevant whether the impact of conduct on a child be immediate, mid-term or permanent. Violence against children has numerous adverse consequences, including negative impacts on physical, mental and reproductive health as well as social and cognitive development.15 The harms inflicted on children are traumatic, and they continue regularly into adulthood. They often have generational and transgenerational effects.16 Even “mild” forms of violence of a mere transitory nature are prohibited by Article 19 CRC. The impact of the conduct which is forbidden by Article 19 CRC must not reach a certain threshold. The CRC Committee constantly maintains the position that all forms of (domestic and other) violence against children, even in weak forms, are 4 See PS Pinheiro, World Report on Violence Against Children, 2006, paras 20 et seq.; J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 216. 5 See S Hillis/J Merey/A Amobi/H Kress, Global Prevalence of Past-year Violence Against Children: A Systematic Review and Minimum Estimates, Pediatrics 137 (2016), p. 1-13, at 6. 6 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 49. 7 See CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 33 et seq. 8 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 4. 9 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 7. 10 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 7 b. 11 See E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 10. 12 For more detail see R Shackel, in: O Cvejić Jančić, (ed.), The Rights of the Child in a Changing World, 2016, p. 37, at 55; M Giroux/C Lavallé, ibid., p. 61, at 76; HA Baloutaki, ibid., p. 183, at 186. 13 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 514-516. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 19.01. 14 See → Article 37 mns. 1, 4. 15 G Lenzer, Violence against children, in: W Vandenhole/E Desmet/D Reynaert/S Lembrechts (eds.), Routledge International Handbook of Children’s Rights Studies, 2015, Ch. 16. 16 J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 221 et seq.

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unacceptable.17 This includes all forms of corporal punishment such as a smack, slap or spanking.18

II. Scope and Objective of Article 19 CRC 4

Article 19 para. 1 CRC establishes the general obligations of States Parties to take all appropriate measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. The CRC Committee has outlined a definition for several (but not all)19 terms in Article 19 CRC to guide States Parties in implementing the requirements of the norm into a clear operational legal setting at domestic level.20 In order to catch all forms of violence irrespective of cultural factors, the CRC Committee tends to avoid offering a comprehensive definition for the terms, preferring to offer non-exhaustive lists of the practices that fall within the terms.21 Thus, physical violence includes all corporal punishment and ill-treatment,22 whereas mental violence extends to a long list of harmful interactions which convey to children that they are worthless and unloved such as scaring, threatening, isolating, ignoring, ridiculing, terrorising, etc.23 Neglect and negligent treatment in the sense of Article 19 para. 1 CRC are to be understood as the inadequate care of a child, due to the inability or unwillingness of the legal guardians or caregivers which results in harm to the welfare of the child and his or her development.24 As regards exploitation, the CRC Committee curiously focused only on sexual abuse as a form of exploitation rather than exploitation which includes sexual abuse. As a result, it has listed a range of sexually exploitative practices which fall under the scope of both Article 19 and Article 34 CRC;25 but it has neglected to mention exploitative practices that are not sexually abusive. As a consequence, the approach adopted by the CRC Committee appears not really consistent. The lack of accuracy is further illustrated by the fact that the CRC Committee has made no attempt to define injury, abuse and maltreatment, and has obviously preferred to subsume these terms in a more general way under the heading of violence. Despite these legal inaccuracies of the CRC Committee’s interpretative guidance, Article 19 para. 1 CRC is in sum to be understood very broadly. It prohibits any acts or omissions undertaken with or without the motivation to inflict physical or mental harm and humiliation upon the child.26 Article 19 CRC does not permit the physical punishment of children as a method of upbringing. In this area, there are significant cultural differences between the States Parties. 17 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 17. See also CRC Committee, Concluding Observations: Japan, CRC/C/JPN/CO/4-5, 2019, para. 25; Côte d’Ivoire, CRC/C/CIV/CO/2, 2019, paras 28 et seq.; Belarus, CRC/C/BLR/CO/5-6, 2020, para. 20. 18 See CRC Committee, General Comment No. 8, CRC/C/GC/8, 2007, para. 34. See also CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/2, 2013, para. 36; Canada, CRC/C/CAN/CO/3-4, 2012, para. 45; Guinea, CRC/C/GIN/CO/2, 2013, para. 48; Japan, CRC/C/JPN/CO/3, 2010, para. 48 and CRC/C/JPN/CO/4-5, 2019, para. 26. 19 See the critical assessment by J Tobin/J Cashmore, Article 19, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 687, at 693. 20 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 18-19. 21 For a fuller account see J Tobin/J Cashmore, Article 19, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 687, at 693-695. 22 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 23. 23 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 21. 24 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 88. For more detail see CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 20. 25 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 25. 26 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 21 et seq.

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However, the wording of Article 19 para. 1 CRC (“to protect the child from all forms of physical or mental violence”) indicates an imperative towards a non-violent upbringing, both intentional and non-intentional. Also, the drafting history of Article 19 CRC makes it clear that it was intended that children be protected from a wide range of abusive practices.27 Accordingly, the CRC Committee rightly considers even mild physical or mental punishment of children, whether in the family, at school or in other places of childcare as contrary to the child’s welfare.28 Any physical or psychological humiliation to the child, even a mild one, is prohibited without exception, since humiliation always produces a trauma.29 Article 19 para. 1 CRC states a clear prohibition of all forms of violence against 5 children. In other words, freedom from violence is a subjective right of the child.30 The mandate to prevent all forms of violence against children imposes an immediate and full obligation upon States Parties, which is self-executing.31 The phrase that “while in care of parents… or any other person who has the care of the child” is essentially irrelevant. It does not restrict the scope of Article 19 para. 1 CRC, since every child will be, to some extent, in the care of another adult until he or she reaches adulthood. Thus, the term “care” for the purposes of Article 19 CRC is not confined to the actual physical care of a child. It rather is a concern with the obligation to care for a child.32 This includes parents, guardians and all those persons with a recognised legal, professional or cultural responsibility for the safety, health, development or well-being of the child.33 In contrast, it is not very consistent in view of the phrase “while in care” that the CRC Committee also subsumes violence committed by other children, such as bullying and harassment by peers in school and educational institutions, under the ambit of Article 19 CRC.34 These actions clearly fall exclusively under the scope of Article 28 CRC.35

III. States’ Obligations to Protect Children Against Violence Article 19 para. 1 CRC imposes a mandatory obligation on States Parties to take 6 all appropriate measures to protect the child from various harms. Therefore, a mere prohibition of corporal punishment by law is, albeit appropriate, not sufficient to fully implement the requirements of Article 19 para. 1 CRC. Additionally, States Parties should take positive legislative, administrative, social and educational measures such as offering information, awareness-raising programmes and training courses on alternative ways to parents and legal guardians how to discipline their children without violating 27 See Commission on Human Rights, Report of the Working Group, E/CN.4/1324, 1978, paras 6 et seq.; E/CN.4/1982/30/Add.1, 1982, para. 118; E/CN.4/1984/71, 1984, paras 34 et seq. 28 CRC Committee, General Comment No. 1, CRC/GC/2001/1, para. 8; General Comment No. 8, CRC/C/GC/8, 2006, paras 44 et seq.; General Comment No. 13, CRC/C/GC/13, 2011, paras 3 a, 4. See also → Article 3 mn. 18. 29 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 17; Concluding Observations: Germany, CRC/C/15/Add.43, 1995, para. 30. 30 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 65. 31 J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 222. 32 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 33. See also J Tobin/J Cashmore, Article 19, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 687, at 691, 703. 33 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 33. 34 See, e.g., CRC Committee, Concluding Observations: Argentina, CRC/C/ARG/CO/3-4, 2010, para. 38; Togo, CRC/C/TGO/CO/3-4, 2012, para. 69; Greece, CRC/C/GRC/CO/2-3, 2012, para. 47. 35 See → Article 28 mn. 25.

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and humiliating them.36 In essence, States enjoy a level of discretion in determining which measures will be appropriate for the purposes of Article 19 CRC. However, the measures must be effective and integrated into a cohesive, interdisciplinary and coordinated system.37 Furthermore, States Parties shall identify those children who are especially vulnerable to violence and abuse and take appropriate measures to protect such children from harm.38 The CRC Committee’s overall belief is that violence against children is not justifiable and that all violence against children is preventable if States Parties take the necessary positive measures.39 7 In the recent past, the majority of European States Parties have introduced rules in their national laws according to which children have a right to non-violent education. This is particularly noteworthy, since historically international human rights law, like domestic law, has been reluctant to intervene in the private sphere of the family. However, too often the public/private dichotomy in law has functioned to the disadvantage of children, heightening their vulnerability to maltreatment and limiting their access to redress.40 Today, and with regard and in reaction to the requirements of Article 19 CRC, the legal perspective has changed. For example, in Germany, physical punishment, mental injury and other degrading measures in the education of a child, even without exception for parents and family members, are all prohibited under a law introduced in 2000 after the implementation of Article 19 CRC.41 This legislative amendment has been praised by the CRC Committee in its 2014 Concluding Observations regarding the periodic State report of the German Government.42 The absolute prohibition of violence against children applies even if physical or psychological abuse appears religiously motivated.43 A group of parents of the religious community “Twelve Church Tribes” (“Zwölf Stämme”) was therefore rightly deprived of the custody of their children by the German authorities because of a well-founded suspicion of ill-treatment. These national decisions have recently been confirmed by the ECtHR as being in accordance with the European Convention on Human Rights.44 The Court ruled that the Contracting Parties have the positive obligation under Article 1 and Article 3 ECHR to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or degrading treatment or punishment, including such treatment administered by private individuals.45 8 However, this does not mean that Article 19 CRC calls on States Parties to absolutely prohibit any form of physical interference with a child. For instance, it is not forbidden 36 See CRC Committee, Concluding Observations: Central African Republic, CRC/C/CAF/CO/2, 2017, paras 38 et seq.; Barbados, CRC/C/BRB/CO/2, 2017, para. 32. See also CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 21 and 44. 37 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 39. 38 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 72 g. 39 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 39. 40 J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 229. 41 See § 1631 of the German Civil Code (Bürgerliches Gesetzbuch). 42 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 32. 43 See F Wapler, Religiöse Kindererziehung: Grenzen des Rechts, Recht der Jugend und des Bildungswesens 2015, p. 420, at 434 et seq. 44 See ECtHR, Judgment of 22 March 2018, Nos. 68125/14, 72204/14, paras 72 et seq. – Wetjen and Others v. Germany. See also ECtHR, Judgment of 22 March 2018, Nos. 11308/16 and 11344/16, para. 79 – Tlapak and Others v. Germany. Further see → Article 14 mn. 1. 45 ECtHR, Judgment of 22 March 2018, Nos. 68125/14, 72204/14, para. 72 – Wetjen and Others v. Germany, with further references. For more detail see R Uerpmann-Wittzack/A Prechtl, Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zum Familienrecht seit Ende 2016, Zeitschrift für das gesamte Familienrecht 2020, p. 469, at 472.

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to grab a child by the arm to prevent him or her from crossing a street.46 Even educational and disciplinary measures such as the lowering of the pocket money remain admissible. It also does not follow from the prohibition of violence that parents should fulfil all the wishes of the child. Rather, Article 19 CRC aims to prohibit unacceptable methods of education such as beatings, psychic oppression and hours of imprisonment, and bring about a shift of awareness in society towards the vision of non-violent education. Indeed, the violence in families in Germany has declined over the last two decades, and generations are better off today than ever.47 Of course, this does not change the fact that further awareness-raising continues to be meaningful in Germany as well as in many other States.48 As a particularly punitive form of violence, the CRC Committee called the flogging in education in the family, school and other institutions and calls for the adoption of relevant criminal laws.49 For children with emotional or mental disabilities, the CRC Committee also emphasises that electroconvulsive treatment methods and electric shocks are to be regarded as a violation of the prohibition on the use of force in Article 19 CRC.50 However, the situation is different in regards to circumcisions of boys which, in 9 contrast to the genital mutilation of girls, are not considered by the CRC Committee as contrary to the Convention, provided they are carried out in hygienic conditions and in accordance with the norms of the medical profession.51 The reason for this is that female genital mutilation is associated with serious, permanent health impairment and regularly pursues the gender degrading aim of completely eradicating a female’s sexual desire.52 By contrast, male circumcision is rooted in two world religions and does not impair a male’s sexual feelings.53 The WHO even considers it necessary for preventive medical reasons in certain regions.54 Article 19 para. 2 CRC provides guidance to States Parties on the specific areas where 10 protective measures should be taken to satisfy with the general obligation to protect children against violence. The use of the word “include” indicates that the list of Article 19 para. 2 CRC is illustrative and not exhaustive.55 On the one hand, the article calls on States Parties to take preventive measures, and on the other hand, it stipulates responsive measures to detect cases of abuse as well as the establishment of appropriate post-abuse child-care facilities. However, the provision focuses primarily upon proactive, preventive assistance.56 Social policies and awareness-raising programmes should empower families with attitudes, skills, capacities and tools to enable them to provide adequately for the protection, care and development of their children. Such skills should be promoted 46 See D Kellner, Die Ächtung der Gewalt in der Erziehung nach neuem Recht, Neue Juristische Wochenschrift 2013, p. 796, at 797. 47 See F Wapler, Familie und Familienschutz im Wandel – zur Entwicklung des Familienbegriffs im öffentlichen Recht, Rechtswissenschaft 2014, p. 57, at 84, with further references. 48 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 33. 49 CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 27; China, CRC/C/CHN/CO/3-4, 2013, paras 43 et seq. 50 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 23. 51 See CRC Committee, Concluding Observations: South Africa, CRC/C/15/Add.122, 2000, para. 33; Lesotho, CRC/C/15/Add.147, 2001, para. 43; Zambia, CRC/C/15/Add.206, 2003, paras 46 et seq. 52 For more detail see C Tomuschat, Menschenrechte und kulturelle Traditionen, Europäische Grundrechte Zeitschrift 2016, p. 6, at 13 et seq.; similarly, T Hörnle/S Huster, Wie weit reicht das Erziehungsrecht der Eltern?, JuristenZeitung 2013, p. 328, at 334 et seq. 53 F Kelle, Die Vereinbarkeit der rituellen Beschneidung bei Jungen mit der UN-Kinderrechtskonvention, in: J Heil/S Kramer (eds.), Beschneidung: Das Zeichen des Bundes in der Kritik, 2012, p. 115, at 125. 54 In detail see → Article 24 mn. 29. 55 J Tobin/J Cashmore, Article 19, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 687, at 709. 56 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 12 et seq., 46 et seq.

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through parenting courses on positive parent-child relationships and conflict resolution skills.57 In this context, protection of the child against abuse and neglect shall be primarily guaranteed through State support for the family.58 The CRC Committee has frequently highlighted the importance of addressing various forms of violence and has called the States Parties to target the root causes of violence at the levels of the child, family, perpetrator, community, institution and society.59 Thereby, it considers research and the collection of data of violence against children as a vital tool for combatting violence in a preventive manner.60 The same applies to trainings of professionals who work with or care for children.61 11 Also, beyond the family and preventive measures, the obligations of the States Parties to protect the child from violence are manifold and addressed to the legislature, the administration and the judiciary.62 A child threatened with violence must be supported, for example, by means of “hotlines” for victims of violence. Teachers and medical doctors should be trained to identify cases of abuse in the family.63 Moreover, they should be required to report suspected cases to youth welfare authorities or the police. 64 All in all, the CRC Committee has indicated that investigations must be undertaken by appropriately qualified personnel with sufficient resources to ensure a timely, thorough and independent investigation.65 The investigative procedure must be sensitive to the child’s needs and extreme care must be taken to avoid subjecting the child to further harm during the investigation.66 In cases of violence, the child should himor herself, or through a legal representative, have the right to submit a complaint.67 Judicial intervention is also explicitly addressed by Article 19 para. 2 CRC. The CRC Committee demands regularly that those responsible for violence and abuse against children be prosecuted and urges States Parties to avoid impunity for perpetrators. 68 But judicial involvement for the purposes of Article 19 CRC also extends to proceedings in which courts play a role in determining which types of interventionist measures may be lawfully taken by State authorities in order to ensure the protection of a child from violence when in care of parents or legal guardians.69 In extreme cases, the child must be removed from his or her family in accordance with the conditions established in Article 9 paras 1 and 2 CRC. Furthermore, particular attention must be given to psycho-social support, recovery and reintegration for children who have experienced violence.70 The 57 K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 194. 58 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 86. 59 CRC Committee, Concluding Observations: Serbia, CRC/C/SRB/CO/2-3, 2017, para. 33; South Africa, CRC/C/ZAF/CO/2, 2016, para. 34; Brazil, CRC/C/BRA/CO/2-4, 2015, para. 34. See also CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 46. 60 CRC Committee, Concluding Observations: South Africa, CRC/C/ZAF/CO/2, 2016, para. 36. 61 J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 226. 62 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 39 et seq. 63 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 48. 64 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 23, para. 89. 65 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 51. 66 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 51. 67 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 22, para. 88; General Comment No. 13, CRC/C/GC/13, 2011, para. 54. 68 See, e.g., CRC Committee, Concluding Observations: Niue Islands, CRC/C/NIU/CO/1, 2013, para. 43; Albania, CRC/C/ALB/CO/2-4, 2012, para. 40; Sudan, CRC/C/SDN/CO/3-4, 2010, para. 41; Nigeria, CRC/C/NGA/CO/3-4, 2010, para. 43; Romania, CRC/C/ROM/CO/4, 2009, para. 45. 69 For more detail see J Tobin/J Cashmore, Article 19, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 687, at 721-722. 70 CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 46.

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reference under Article 19 para. 2 CRC to “treatment and follow-up of instances of child maltreatment”, however, overlaps with Article 39 CRC.71 The CRC Committee also emphasises the positive obligation of the States Parties to 12 protect the best interests of the child in cases of asylum and deportation procedures and in particular to protect the child against any acts of violence within the meaning of Article 19 para. 2 CRC.72 Thus, when deciding on an asylum application based on the alleged risk of being subjected to female genital mutilation in the country of origin, the State Party must take the best interests of the child into utmost account. 73 The States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child. Such non-refoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate extraterritorially and from non-State actors or whether such violations are directly intended or are the indirect consequence of action or inaction. Persecution of kin, under-age recruitment, trafficking of children for prostitution and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status.74 Therefore, States Parties should give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination and deportation procedures.75 In any event, the CRC Committee considers that the rights of the child under Article 19 CRC cannot be dependent on the parents’ ability to resist family and social pressures and that States Parties should take measure to protect children from all forms of physical and mental violence, even where the parent or guardian is unable to resist social pressure. 76 Where reasonable doubts exist that the receiving State cannot or does not protect the child against such harmful practices, States Parties should refrain from deporting the child.77 In this context, it is interesting to note that the African Committee of Experts on the Rights and Welfare of the Child handed down a decision in 2012 which is related to children in Senegal who were sent away allegedly to attend private religious schools but in fact were exploited and abused physically and morally.78 The African Committee held that the Government of Senegal did not take sufficient measures to protect these children against the behaviour of private schools and called for the child-specific training of duty-bearers.

71 Tobin/J Cashmore, Article 19, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 687, at 720. See also → Article 39 mns. 1 et seq. 72 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, paras 11.3 et seq. 73 See → Article 3 mn. 18. 74 See → Article 22 mn. 4. 75 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.3; General Comment No. 6, CRC/GC/2005/6, 2005, para. 74. 76 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.8 (b). 77 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.8 (c). 78 ACERWC, Views adopted on 14 April 2014, No. 003/Com/001/2012, The Centre for Human Rights (University of Pretoria) and La Rencontre Africaine Pour la Défence des Droits de l’Homme (Senegal) v. Senegal.

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IV. Embedding of Article 19 CRC into the System of International Human Rights Protection A provision similar to Article 19 CRC is not present in any other universal human rights treaty. International law has traditionally focused on protecting the integrity of the family unit in order to ensure the healthy development of the child. Relationships and abuses within the family usually receive only marginal treatment.79 In the ICCPR, there is only a general obligation laid down in Article 24 ICCPR to provide appropriate protective measures for children. However, in the meantime, the Human Rights Committee includes family abuse and neglect and encourages States Parties to limit the parental rights, and if necessary, to remove the child from the family.80 Furthermore, Article 7 ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibit the use of torture and cruel, inhuman or degrading treatment against all human beings. But all these human rights instruments offer nothing more than a basic right to protection against ill-treatment. In contrast, Article 19 CRC articulates an expansive model for both the prevention of violence in all its forms and the obligations of States Parties to respond to situations where children have experienced such harm.81 In addition, the current international agenda is strongly dominated by political attention to violence against children, due to the activities of the UN Secretary General’s Special Representative on Violence Against Children and the CRC Committee’s systematic attention to this problem.82 The efforts to prevent and eradicate violence against all children are further strengthened by the ambitious goal No. 16.2 of the UN Sustainable Development Goals.83 These, as well as the provisions at the regional level mentioned below, bolster the unequivocal stance of Article 19 CRC: any violence against children constitutes a human rights violation.84 14 At the European level, the ECtHR has recognised a violation of the prohibition on inhuman or degrading treatment under Article 3 ECHR when the State Party does not sufficiently protect the child against the abuse of his stepfather.85 In addition, positive obligations of the States Parties to protect the child’s dignity exist where social conditions of severe neglect are present86 or in case of domestic or school violence.87 On explicit recourse to Article 19 CRC, the ECtHR makes it very clear that assuring basic dignity to the child means that there can be no compromise in condemning violence against children, whether accepted as “tradition” or disguised as “discipline”. Children’s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection from violence, including from domestic corporal punishment, the latter being invariably degrading.88 Member 13

G Van Bueren, The International Law on the Rights of the Child, 1995, p. 87. Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child), HRI/GEN/1/ Rev.9, Vol. I, 2008, p. 193, para. 6. 81 J Tobin/J Cashmore, Article 19, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 687, at 689. 82 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 24. 83 See UN General Assembly Resolution 70/1, A/RES/70/1, 25 September 2015. 84 Rightly so, J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 222. 85 ECtHR, Judgment of 23 September 1998, No. 25599/94, para. 22 – A v. The United Kingdom. See also ECtHR, Judgment of 10 October 2002, No. 38719/97, para. 109 – D.P. v. The United Kingdom. 86 ECtHR, Judgment of 10 May 2001, No. 29392/95, paras 73 et seq. – Z. v. The United Kingdom. 87 ECtHR, Judgment of 28 May 2013, No. 3564/11, para. 56 – Eremia v. Moldova; Judgment of 24 July 2012, No. 41526/10, paras 139 et seq. – Dordevic v. Croatia. See also S Sinner, in: U Karpenstein/F Mayer (eds.), EMRK, Kommentar, 2nd edn. 2015, Article 3 mn. 29. 88 ECtHR, Judgment of 3 October 2017, No. 23022/13, para. 50 – D.M.D. v. Romania. 79 80

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[Protection from all Forms of Violence]

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States should strive to protect children’s dignity expressly and comprehensively, which in turn requires an adequate legal framework for the protection of children from domestic violence, which falls within the scope of Article 3 ECHR.89 The EComHR decided early that a ban on physical punishment did not violate the right to respect for private and family life under Article 8 ECHR.90 On the other hand, the physical punishment of minors must be of sufficient severity in order to qualify as breaches of Article 3 ECHR. 91 Meanwhile, however, there are various conventions and guidelines of the Council of Europe which serve the protection of children from all (not only severe) forms of violence. To mention here, in addition to the CoE Committee of Ministers’ guidelines on integrated national strategies for the protection of children against violence and the Parliamentary Assembly’s guidelines on child abuse in institutions,92 are especially the Revised European Social Charter, with its provisions on the right of the child to protection from neglect, violence and exploitation, the European Convention on the Exercise of Children’s Rights,93 the Convention on Action against Trafficking in Human Beings,94 the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse95 and the Convention on Preventing and Combating Violence against Women and Domestic Violence,96 which also applies to girls under the age of 18 years.97 Also, the ECtHR nowadays states on many occasions that the assessment of the minimum level of severity required for ill-treatment under Article 3 ECHR is relative: it depends on all circumstances of the case, such as the duration of the treatment, its physical and mental effects, and the age, sex and state of health of the victim.98 Against this background, it held that the mistreatment of a 4-year-old boy by his public nursery school teachers violated Article 3 ECHR, even if the damage caused to the boy was “only” of medium severity.99 The Court underlined that the cumulative effect of the acts of abuse – the boy had been locked in the dark toilets and told he would be eaten by rats, had been forced to stand in the lobby in his underwear and with his arms up, etc. – over several weeks and with regard to the extremely young age of the boy rendered the treatment sufficiently serious as to be considered inhuman and degrading within the meaning of Article 3 ECHR.100 At the African level, Article 16 ACRWC includes a parallel prohibition on violence 15 against children to Article 19 CRC that expressly covers both maltreatment by caregivers and other forms of violence in the community. In contrast, the Inter-American Court of Human Rights when interpreting the prohibition of torture under Article 5 ACHR 89 ECtHR, Judgment of 12 November 2013, No. 5786/08, paras 80-81 – Söderman v. Sweden; Judgment of 3 October 2017, No. 23022/13, para. 51 – D.M.D. v. Romania. 90 EComHR, Decision of 13 May 1982, No. 8811/79, – X and Others v. Sweden. 91 ECtHR, Judgment of 3 December 1993, No. 13134/87, para. 30 – Costello-Roberts v. The United Kingdom. See also ECtHR, Judgment of 25 April 1978, No. 5856/72, paras 29 et seq. – Tyrer v. The United Kingdom; Judgment of 28 January 2014, No. 35810/09, para. 146 – O’Keeffe v. Ireland. 92 See Committee of Ministers’ Recommendation CM/Rec (2009)10; PACE Recommendation 1934(2010). For more detail see E Moreno, in: T Kleinsorge (ed.), Council of Europe, 2010, p. 195, at 198 et seq.; U Kilkelly, in: S Schmahl/M Breuer (eds.), The Council of Europe: Its Law and Policies, 2017, mn. 30.05. 93 CETS No. 160. 94 CETS No. 197. 95 CETS No. 201. 96 Istanbul Convention, CETS No. 210. 97 See Article 3 lit. f of the Istanbul Convention. 98 ECtHR, Judgment of 6 April 2000, No. 26772/95, para. 120 – Labita v. Italy; Judgment of 7 March 2017, No. 68059/13, para. 168 – V.K. v. Russia. 99 ECtHR, Judgment of 7 March 2017, No. 68059/13, para. 171 – V.K. v. Russia. 100 ECtHR, Judgment of 7 March 2017, No. 68059/13, para. 172 – V.K. v. Russia. Further see → Article 28 mn. 31.

281

Art. 20

[Extra-Familial Care]

does not give clear answers to the question of whether corporal punishment of children is prohibited without exception but rather prefers to defer to national jurisdiction in the matter.101

Article 20 [Extra-Familial Care] 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Special Protection for Children Deprived of Their Family Environment (Article 20 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. States Obligations to Ensure Alternative Care (Article 20 para. 2 CRC) . . . . . IV. State Obligations to Guide Alternative Care and Placements (Article 20 para. 3 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Embedding of Article 20 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 8 10 18

I. Generalities 1

Article 20 CRC regulates the situation of a child requiring care outside of the family environment. It is a remedial provision, which only comes into play when children are deprived of their family environment.1 Therefore, Article 20 CRC is connected to Article 9 para. 1 CRC, which permits the State authorities the separation of children and parents in extreme situations when such a separation serves the best interests of the child. 2 However, the scope ratione materiae of Article 20 CRC is more extensive than that of Article 9 CRC, since alternative care, which is the topic of Article 20 CRC, may be necessary for a variety of reasons, for instance, if the child is a real orphan with both parents dead, provided that other family members are not able to step in and formally take over the parental responsibility. 3 For situations in which the child cannot be brought up by his or her parents because of death, disappearance, illness, relinquishment, displacement or imprisonment, Article 9 para. 4 CRC specifies only procedural conditions.4 It is Article 20 CRC that establishes the relevant substantial conditions for alternative care, for in101 See CM Baillet, The Strategic Prudence of the Inter-American Court of Human Rights: Rejection of Requests for and Advisory Opinion, Brazilian Journal of International law 15 (2018), p. 254, at 266 et seq.; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 19.23. 1 J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 727. 2 See → Article 9 mn. 5. 3 K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 190. 4 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 333. See also → Article 9 mn. 16.

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[Extra-Familial Care]

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stance, in order to ensure that the living conditions for children who are in prison with one of their parents are adequate for the child’s physical, mental, moral and social development.5 Moreover, Article 20 CRC operates in tandem with Article 3 para. 3 CRC which demands that facilities for children comply with appropriate child-friendly standards, as well as with Article 25 CRC which provides children in care with a right to periodic review of their placement.6 Cases not falling within the scope of Article 20 CRC are those concerning the detention of children or young persons as a result of crimes committed. These situations are exclusively regulated in Article 37 lit. d CRC. 7 Because of the variety of possible reasons as to why a child cannot be brought up by 2 his or her parents or family, Article 20 CRC has a significantly wide scope in practice. 8 Article 20 para. 1 CRC stipulates an individual and directly applicable child’s right on alternative substitute care,9 the content of which is specified in Article 20 paras 2 and 3 CRC. Article 20 para. 3, sentence 1 CRC designates, as a paradigmatic rule, various forms of extra-familial care, and Article 20 para. 3, sentence 2 CRC provides general conditions applicable to such arrangements. The right conferred by Article 20 CRC applies for each child who is dependent on alternative substitute care.10 This also includes children under Islamic kafalah11 and, in particular, unaccompanied minors, as clarified by Article 22 para. 2 CRC.12 The personal scope of Article 20 CRC extends beyond asylum-seeking children to all unaccompanied and separated children.13 The right to alternative care applies to any child who is temporarily or permanently in a situation without family protection.14 For unaccompanied foreign minors who claim refugee status or a status comparable to national law, Article 22 para. 2 CRC explicitly states that the provisions of Article 20 CRC also apply to them.15 This means that the affected minors may be accommodated in an appropriate child-friendly care facility, but not in an asylum institution for adults.16 In its entirety, Article 20 CRC relates especially to the prohibition of discrimination 3 in Article 2 para. 1 CRC for mainly two reasons. Firstly, it must be prevented that children enter extra-familial care on discriminatory grounds. Both in industrialised 5 CRC Committee, Concluding Observations: Republic of Moldova, CRC/C/MDA/CO/4-5, 2017, para. 27. See also CRC Committee, Concluding Observations: Philippines, CRC/C/15/Add.259, 2005, para. 54; Burundi, CRC/C/BDI/CO/2, 2010, para. 62. 6 J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 727, 739; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 20.08. 7 Inaccurate in this point: N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 39 et seq. 8 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 4. 9 H Cremer, Der Anspruch des unbegleiteten Kindes auf Betreuung und Unterbringung nach Art. 20 des Übereinkommens über die Rechte des Kindes, 2006, p. 82 et seq. 10 H Cremer, Der Anspruch des unbegleiteten Kindes auf Betreuung und Unterbringung nach Art. 20 des Übereinkommens über die Rechte des Kindes, 2006, p. 108 et seq.; idem, Menschenrechtsverträge als Quelle von individuellen Rechten, Anwaltsblatt 2011, p. 159, at 163. 11 See → Article 21 mn. 2. 12 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 81 et seq. See also → Article 22 mn. 22. 13 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 428. 14 H Cremer, Der Anspruch des unbegleiteten Kindes auf Betreuung und Unterbringung nach Art. 20 des Übereinkommens über die Rechte des Kindes, 2006, p. 108 et seq. 15 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 81 et seq.; H Cremer, Der Anspruch des unbegleiteten Kindes auf Betreuung und Unterbringung nach Art. 20 des Übereinkommens über die Rechte des Kindes, 2006, p. 114 et seq. 16 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 49. See also → Article 22 mn. 22.

283

Art. 20

[Extra-Familial Care]

and in developing countries, children from economically disadvantaged backgrounds are disproportionately represented in extra-familial care circumstances. Poverty and financial difficulties often lead to a separation of parents and children.17 Against this background, the CRC Committee repeatedly stresses that poverty alone may not justify the decision to separate and resettle the child in an institution or in other alternative care.18 Secondly, children in extra-familial care, especially those placed in institutions, are often victims of resulting discrimination. Resettled children are subject to the risk of being discriminated against in access to educational opportunities and health and social services.19 To counteract this risk, the States Parties should reduce the size of care institutions and only employ trained staff in order to create a family-like atmosphere in the institution.20 In this context, the CRC Committee also calls on States Parties to pay particular attention to adolescents in institutionalised care, as this age group has different needs and risks than younger children.21

II. Special Protection for Children Deprived of Their Family Environment (Article 20 para. 1 CRC) 4

Article 20 CRC extends to a child temporarily or permanently deprived of his or her family environment or in whose own best interests it cannot be allowed to remain in that environment. The meaning of the word “deprived” was not qualified during the drafting of the Convention. However, the drafting history indicates that the reasons for deprivation are irrelevant with respect to Article 20 CRC.22 Thus, the CRC Committee rightly highlights that it is immaterial whether deprivation occurs because of death, abandonment, voluntary departure, economic circumstances, natural disaster, armed conflict, State intervention or migration.23 It is also irrelevant whether the deprivation occurs because of the actions of parents or family members, non-State actors or State action. Only in cases where the child in conflict with the law is deprived of his or her family environment because of being detained in the juvenile justice system, it is exclusively Article 37 lit. d CRC which is applicable to such situations.24 As regards children living and/or working in the street, the CRC Committee suggests that also these children regularly enjoy the benefit of Article 20 CRC, even if they are not always deprived of a family environment.25 17 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 658. 18 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, paras 658 et seq. See also CRC Committee, Concluding Observations: Romania, CRC/C/ROU/CO/5, 2017, para. 29; Cameroon, CRC/C/CMR/CO/3-5, 2017, para. 31; CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 30. 19 See N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 6. 20 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, paras 660 et seq. 21 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, paras 53 et seq. 22 OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 526-531. 23 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 11. 24 See → Article 20 mn. 1. 25 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 44; Concluding Observations: Sierra Leone, CRC/C/15/Add.116, 2000, para. 50; Rwanda, CRC/C/RWA/CO/3-4, 2013, 39; Mauritania, CRC/C/MRT/CO/2, 2009, para. 46; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 47. Different

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[Extra-Familial Care]

Art. 20

Article 20 para. 1 CRC, which speaks of the deprivation of the child from his or 5 her “family environment”, refers not only to parents and biological family,26 but also to the extended family in Article 5 CRC.27 Hence, Article 20 CRC applies not only to a separation from biological parents, but from the whole family.28 Where parents cannot or are prohibited from exercising (further) parental authority because it is not in the best interests of the child, the State authorities must first attempt to secure the child’s upbringing within the extended family, i.e. with grandparents or adult siblings, before the child is removed completely from the family.29 The CRC Committee regularly emphasises the prominent role of the extended family. It especially calls upon States Parties to make efforts to support and underline the role of grandparents in the upbringing of children.30 The care provided by the extended family is therefore not considered as alternative care within the meaning of Article 20 paras 2 and 3 CRC. In such a case, the child is not entitled to special protection by the State authorities, but only to the usual protective measures according to Article 20 para. 1 and Article 3 CRC. 31 Family care – even in the extended family – is significantly different from alternative institutional care or foster placement. In contrast to family relationships with their typical lifelong implications in dyads and intergenerational relationships, the interactions and patterns of relationships in institutionalised care are more group-related and less a reliable match for the child. Children, especially small children, need a highly individualised, constant and trustworthy support.32 In view of the child’s right to an upbringing by his or her own (extended) family 6 as established in Article 5 and Article 18 CRC, which may only be denied in extreme cases,33 the provisions of Article 20 CRC remove the primary obligation of the States Parties to ensure alternative care insofar as intra-familial care opportunities are guaranteed and consistent with the child’s welfare. To this end, the States Parties shall take all necessary measures, such as offering consultation and guidance services for families. 34 Children with psychosocial or other disabilities should in principle also be looked after as part of their own family and not be accommodated externally.35 Family and commu-

assessment by R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 277-290. 26 See OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 526-530. 27 See → Article 5 mns. 2 et seq. 28 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 18, p. 36 et seq., p. 64. See also J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 734. Critical assessment by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 20.06. 29 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 34; Recommendations, Day of General Discussion: Violence against Children, CRC/C/100, 2000, para. 688. 30 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 648. 31 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 36 et seq. 32 K-H Brisch, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 52, at 77. 33 See → Article 9 mn. 5. 34 CRC Committee, Recommendations, Day of General Discussion: Violence against Children, CRC/C/ 100, 2000, para. 688; Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, paras 649 et seq. 35 See CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 15; General Comment No. 14, CRC/C/GC/14, 2013, para. 78. See also CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/3-4, 2013, para. 54.

285

Art. 20

[Extra-Familial Care]

nity-based care such as professional foster families or SOS villages are to be prioritised. 36 This type of accommodation also applies to unaccompanied migrant children.37 What is decisive in this context is that unaccompanied and separated children should be referred immediately upon identification to the domestic child protection services. 38 In general, extra-familial forms of care are subsidiary and may be considered only if the intra-family arrangement contradicts the child’s welfare.39 7 A child who is temporarily or permanently deprived of his or her family environment is, pursuant to Article 20 para. 1 CRC, entitled to special protection and assistance from the State. This is primarily due to the child’s particular susceptibility to suffering violations of his or her rights as guaranteed in the Convention, especially his or her identity and personality rights when placed outside the family.40 States Parties are therefore not only required to abstain from ignoring abuse and neglect of the child by a government authority, but they must also actively pursue their duties to protect the child against infringements of parents and other individuals having custody.41 The wording of Article 20 para. 1 CRC “shall be entitled to special protection” makes clear that the rights to alternative substitute care provide immediately applicable and subjective rights of the child.42 In view of Article 12 CRC, the understanding of this right of the child to special protection and assistance must be informed by children’s views via a process in which their insights and evolving capacities are treated seriously. Children must be considered as partners in decision-making under Article 20 CRC, and former welfarist and protectionist models shall be rejected.43 Only the detailed configuration of the forms of care is left to the discretion of the States Parties. Yet, in any case, the States Parties are obligated to ensure alternative forms and types of care to a child temporarily or permanently deprived of his or her family environment44 and ensure adequate safeguards and clear criteria, based on the needs and the best interests of the child, for determining whether a child should be placed in alternative care.45 These robust and clear criteria for removing the child into alternative care should be provided

36 CRC Committee, Concluding Observations: Botswana, CRC/C/BWA/CO/2-3, 2019, paras 41-42; Hungary, CRC/C/HUN/CO/6, 2020, para. 28. See also K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 202. 37 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, paras 32 et seq.; CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 13. 38 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 31. 39 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 337 et seq. See also UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, paras 21, 48 et seq. 40 See UN General Assembly Resolution 41/85: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, 3 December 1986, Annex, Article 8. 41 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 35. 42 H Cremer, Der Anspruch des unbegleiteten Kindes auf Betreuung und Unterbringung nach Art. 20 des Übereinkommens über die Rechte des Kindes, 2006, p. 82 et seq.; idem, Menschenrechtsverträge als Quelle von individuellen Rechten, Anwaltsblatt 2011, p. 159, at 163. 43 See CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 5. See also S Bessell/T Gal, Forming Partnerships: The Human Rights of Children in Need of Care and Protection, International Journal of Children’s Rights 17 (2009), p. 283, at 294-295. 44 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 35. 45 CRC Committee, Concluding Observations: Sierra Leone, CRC/C/SLE/CO/3-5, 2016, para. 25 c; Saudi-Arabia, CRC/C/SAU/CO/3-4, 2016, para. 33 d; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 44 c; Peru, CRC/C/PER/CO/4-5, 2016, para. 48 a; Zambia, CRC/C/ZMB/CO/2-4, 2016, para. 42 a; France, CRC/C/FRA/CO/5, 2016, para. 54 b.

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by statute law, encompass provisions for quality care standards and need to underline that placement is a measure of last resort.46

III. States Obligations to Ensure Alternative Care (Article 20 para. 2 CRC) According to Article 20 para. 2 CRC, States Parties shall in accordance with their 8 national laws ensure alternative care for a child who is, for whatever reason, temporarily or permanently deprived of his or her family environment. The reference to national laws does not only accommodate States’ own cultural practices concerning alternative care. It primarily obliges States Parties to adopt legislation to ensure the effective provision of such care. The CRC Committee repeatedly stresses that States Parties should use legislative measures to ensure the provision of alternative care and not leave the issue unregulated.47 States Parties should ensure the availability of a range of alternative care options, including situations of emergency and situations of short-term and long-term care.48 At the same time, the CRC Committee regularly underscores that alternative care in its entirety has to be a measure of last resort. It is, for instance, concerned that in some countries children of certain ethnic groups run the risk of being placed in alternative care, especially institutions, more easily and frequently than other children. Disproportionate place in alternative care is relevant to Roma children as well as children of other minorities or indigenous groups.49 The CRC Committee therefore calls on the States Parties that minorities or indigenous groups may need specific measures to assist them in their child-rearing and recommends the States Parties to intensify their efforts to render culturally appropriate services to these groups in order to enable them to fulfil their parental and familial role.50 Also, a child with disabilities is in need of parental care no less than any other child, if not more, and has thus the same right to such care. Therefore, the CRC Committee expresses concern that the number of children with disabilities in alternative care institutions is disproportionally high, particularly owing to societal stigmatisation of children with disabilities and a fragmented system of social assistance, which does not sufficiently encourage and support families to keep their children at home.51 The CRC Committee urges the States Parties to reform the social assistance system in order to avoid institutionalisation of children with disabilities and undertake awareness-raising campaigns to combat the stigmatisation of and prejudice

46 CRC Committee, Concluding Observations: Pakistan, CRC/C/PAK/CO/5, 2016, para. 44 c; Japan, CRC/C/JPN/CO/4-5, 2019, paras 28-29; see also K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 198. 47 See CRC Committee, Concluding Observations: Georgia, CRC/C/15/Add.124, 2000, paras 36 et seq.; Norway, CRC/C/15/Add.126, 2000, para. 34; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 47; Suriname, CRC/C/15/Add.130, 2000, paras 37-38; Kuwait, CRC/C/KWT/CO/2, 2013, para. 54. 48 CRC Committee, Concluding Observations: Central African Republic, CRC/C/15/Add.138, 2000, para. 48; Malta, CRC/C/MLT/CO/2, 2013, para. 45; Finland, CRC/C/FIN/CO/4, 2011, para. 33. See also UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 54. 49 CRC Committee, Concluding Observations: Bulgaria, CRC/C/BGR/CO/2-4, 2016, paras 34-35; Romania, CRC/C/ROU/CO/5, 2017, para. 28. See also K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 190 et seq., 204. 50 See, e.g., CRC Committee, Concluding Observations: New Zealand, CRC/C/NZL/CO/5, 2016, para. 26. 51 CRC Committee, Concluding Observations: Bulgaria, CRC/C/BGR/CO/3-5, 2016, para. 38 b; China, CRC/C/CHN/CO/3-4, 2013, para. 54; Belarus, CRC/C/BLR/CO/5-6, 2020, paras 27 and 30; Hungary, CRC/C/HUN/CO/6, 2020, para. 30.

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against children with disabilities.52 Separation may be considered only in cases where the necessary assistance to preserve the family unit is not effective enough to avoid a risk of neglect or abandonment of the child with disabilities or a risk to the child’s safety.53 9 In sum, whatever the root causes, placement of a child in alternative care is generally considered to be undesirable and should not take place if it is at all possible to create acceptable conditions for the child while living with his or her parents or extended family or to implement less intrusive measures.54 Preventive measures, which are appropriate and culturally sensitive, must remain paramount at all times.55 This requires the provision of multidisciplinary assistance to parents in the performance of their child-raising responsibilities.56 Whenever implemented, the alternative care should be temporary and for the shortest possible duration.57 In addition to preventive measures, the CRC Committee also stresses the importance of family reintegration. 58 States Parties are further called upon to reject the welfare and paternalistic approach of former times which involved the rescue of children perceived to be objects or victims rather than legal subjects.59 In its place, States Parties shall embrace a rights-based approach for children in alternative care which respects the autonomy of the child, promotes their resilience and capabilities, and increases their agency in decision-making.60

IV. State Obligations to Guide Alternative Care and Placements (Article 20 para. 3 CRC) 10

Where a case of extra-familial care is at issue, the State must especially safeguard the rights of those involved. It must ensure that every child unable to be cared for by his or her (extended) family receives effective and child-sensitive alternative care. This care may also be performed by non-State bodies provided that these bodies are monitored by the State authorities.61 These institutions or foster placements, be they big or small residential institutions, must be committed to a high level of pedagogical quality and have a proportionate relationship between the children to be cared for and the number of reference persons.62 Care providers shall be suitably qualified to assess and respond to the often complex physical, mental, emotional and social needs of children deprived 52 CRC Committee, Concluding Observations: Bulgaria, CRC/C/BGR/CO/3-5, 2016, para. 39; Belarus, CRC/C/BLR/CO/5-6, 2020, para. 28. 53 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 63. See also Article 23 para. 4 ICRPD, and K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 193. 54 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 61; see also K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 191. 55 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 46. See also UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 9. 56 CRC Committee, Concluding Observations: Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 46; Burundi, CRC/C/15/Add.133, 2000, paras 46-47; China, CRC/C/CHN/CO/3-4, 2013, para. 55. 57 UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 14. 58 See CRC Committee, Concluding Observations: Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 48; Myanmar, CRC/C/MMR/CO/3-4, 2012, para. 56. 59 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 5. 60 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 12. 61 See N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 51. 62 See K-H Brisch, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 52, at 79 et seq.

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of the family environment. Furthermore, States Parties should take into account that care financing should never encourage unnecessary or prolonged care arrangements and ensure effective, secure and confidential record-keeping.63 If extra-familial care is unavoidable, an environment reflecting, as far as possible, the child’s original family environment must be provided for.64 Siblings shall, as far as possible, remain together in care.65 In addition, each separation and alternative care measure must serve the reintegration of the child into his or her family.66 Throughout the drafting of Article 20 para. 3 CRC, the traditional forms of childcare 11 and upbringing found in various cultures and religions had to receive equal consideration.67 This equal consideration of different forms of extra-familial care is demonstrated by the fact that the list of alternative care possibilities contained in Article 20 para. 3 CRC is not exhaustive but merely illustrative (“could include, inter alia”).68 Possible additional options are kinship care, residential care and supervised independent living.69 The CRC Committee adopts an even more expansive notion of alternative care which extends to practical and moral support to children in street situations through adult street workers or peer support.70 Notwithstanding the explicit mention of a child care institution as the (normative) model rule, the CRC Committee states that in respect of the child’s best interests, interim solutions, such as professional foster care or other family- or community-based-type care, shall be provided between the care provided by the biological parents and any institutionalisation or residential care of the child.71 The conviction has grown over the last decades that living in a large institution or residential care facility is likely to be detrimental to the development of a child and should be avoided.72 As far as possible, care should be individualised and provided in small groups or in professional foster families.73 Family-based care should be the main rule for young children, especially those under the age of three years.74 Yet, foster 63 For more detail see UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, paras 105-136. See also J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 745-746. 64 In a similar vein, see Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child), HRI/GEN/1/Rev.9, Vol. I, 1989, para. 6. 65 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 34; see also ECtHR, Judgment of 10 April 2012, No. 19554/09, para. 98 – Pontes v. Portugal; Judgment of 16 February 2016, No. 72850/14, para. 114 – Soares de Melo v. Portugal. – This condition also applies with regard to immigration residence, see C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 441. 66 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 35. 67 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 335 et seq. 68 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 51. 69 J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 747. See also UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 29. 70 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 44. 71 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 665. See also the terminology of the UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, paras 29 a and 29 b. 72 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 35. See also N Petrowski/C Cappa/P Gross, Estimating the number of children in formal alternative care: challenges and results, Child Abuse and Neglect 70 (2017), p. 338, at 339. 73 CRC Committee, Concluding Observations: Bolivia, CRC/C/15/Add.256, 2005, para. 40. See also K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 203. 74 UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 22.

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care requires an equally intense protection as biological families. Therefore, the CRC Committee asks the States Parties to establish or reinforce systems of foster care and to accelerate the process of deinstitutionalisation.75 On the other hand, residential care still may be the best option for some children, who have had negative experiences with a family setting, in order to keep siblings together or to provide specialised care and treatment.76 Therefore, exceptions to the principle of family-based care are possible provided that they are for predetermined and limited duration, with planned family reintegration or other appropriate long-term care solution. The CRC Committee also points out that foster families face similar issues as biological families, such as marital problems, domestic violence or neglect.77 In any case, the CRC Committee underlines the need for States Parties to have a clear policy on care possibilities provided for under a legislative framework.78 12 Unlike Article 21 para. 1 CRC (“paramount consideration”), which applies to the adoption procedure,79 Article 20 para. 3 CRC does not stipulate that the best interests of the child represent the highest basic concern of the competent authorities in the choice of the alternative care form. Thus, at least from its wording, the article is to be assigned to the weaker guarantee of children’s best interests under Article 3 CRC (“primary consideration”). 80 Article 20 para. 3 CRC therefore deviates, without apparent reason, from Article 5 of the Recommendations of the UN General Assembly regarding foster placement.81 However, the orientation of the child’s welfare and best interests requires that the child shall be heard at all stages of measures falling under Article 20 para. 3 CRC, including prior to the measure as well as during and after its application.82 The decision may not be of a general nature, but instead must be taken in respect of the individual child. The situation of the child, his or her family background and environment must be given due consideration.83 The matching of the child with the foster carers is a vital exercise where the child needs to have a say and the parents should also, wherever feasible, be involved. A foster placement is likely to be more successful if the caregivers are accepted not only by the child but also by the child’s parents.84 13 The placement of children in child care institutions is, according to the explicit wording of Article 20 para. 3, sentence 1 CRC, to be considered ultima ratio (“if necessary”), 75 See CRC Committee, Concluding Observations: Saudi-Arabia, CRC/C/SAU/CO/3-4, 2016, para. 33; Gabon, CRC/C/GAB/CO/2, 2016, para. 42 b; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 44 b; Suriname, CRC/C/SUR/CO/3-4, 2016, para. 24 a; Pakistan, CRC/C/PAK/CO/5, 2016, para. 44 a; Portugal, CRC/C/PRT/CO/5-6, 2019, para. 31. 76 A Kendrick, Residential Child Care, in: International Encyclopedia of the Social and Behavioural Sciences, 2nd edn., 2015, p. 534-539. 77 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 647. 78 CRC Committee, Concluding Observations: Mali, CRC/C/15/Add.113, 1999, para. 22; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 44. 79 See → Article 21 mn. 4. 80 For more detail see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 131 et seq.; RA Lorz/H Sauer, Kinderrechte ohne Vorbehalt, MenschenRechtsMagazin 2011, p. 5, at 9 et seq. 81 See UN General Assembly Resolution 41/85: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, 3 December 1986, Annex. 82 CRC Committee, Recommendations, Day of General Discussion. Children without parental care, CRC/C/153, 2006, para. 664; General Comment No. 14, CRC/C/GC/14, 2013, paras 15 g and 81; General Comment No. 12, CRC/C/GC/12, 2009, para. 97. See also → Article 12 mn. 31. 83 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 667. 84 K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 205.

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as it can have adverse effects on the development of children.85 Education in child care institutions is problematic in view of the prevailing anonymity and discontinuity of relationships. The CRC Committee therefore repeatedly expresses concern at the institutionalisation of children deprived of their family environment and emphasises that it must be a measure of last resort.86 The well-being of the child is generally better accounted for in children's and youth villages or in assisted living communities.87 Nevertheless, the placement in a foster family has always fundamental priority. The States Parties may provide that care institutions play a transitional role, especially in regards to children with special needs who cannot be cared for at home, such as children with strong disabilities. But even in respect to children with mental, psychological or physical disabilities, institutionalised care must remain a last resort.88 Also other children with special needs, such as traumatised children or children with HIV/AIDS, require special attention and flexible protective methods.89 With respect to children of the latter category, in practice they are often accommodated in institutions, because foster families are regularly not prepared to accept children with HIV/AIDS.90 The same applies for children with disabilities.91 In addition, the placement of children with attention deficit disorder in psychiatric clinics often appears to be over-hastily ordered by national authorities – a fact which the CRC Committee finds particularly worrying.92 Social pedagogical alternatives to deprivation of liberty appear to be clearly preferable.93 Furthermore, it is important to counteract the especially elevated risk that girls in extra-familial care become victims of sexual exploitation and loose access to education. 94 Despite the CRC Committee’s concerns with institutional care, it is important to 14 recognise that such care remains a valid option, provided it is necessary and suitable.95 Since institutionalised care entails a greater risk of children becoming victims of abuse and exploitation, States Parties must take special precautions. The child care institutions must suffice the requirements contained in Article 20 para. 3, sentence 2 and in Article 3 para. 3 CRC.96 Care must be provided by specialised childcare bodies and trained staff.97 In addition, Article 25 CRC regulates a part of the situations falling within the scope 85 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 31. See also UN General Assembly Resolution 41/85: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, 3 December 1986, Annex, Article 4. 86 See CRC Committee, Concluding Observations: Lebanon, CRC/C/15/Add.169, 2002, para. 36; Armenia, CRC/C/15/Add.119, 2000, paras 28 et seq.; General Comment No. 21, CRC/C/GC/21, 2017, para. 45. See also CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 129. 87 J Münder/T Trenczek, Kinder- und Jugendhilferecht, 8th edn., 2015, mn. 413. See also CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 47. 88 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 47. 89 CRC Committee, Concluding Observations: Sierra Leone, CRC/C/SLE/CO/2, 2008, para. 42; Mauritania, CRC/C/MRT/CO/2, 2009, para. 47; Eritrea, CRC/C/ERI/CO/3, 2008, para. 45. 90 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 314. 91 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 46. 92 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 58 et seq. 93 See also J Münder/T Trenczek, Kinder- und Jugendhilferecht, 8 th edn., 2015, mn. 418. 94 CRC Committee, Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, paras 670 et seq. 95 J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 751. 96 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 56; see also → Article 3 mn. 22. 97 CRC Committee, Concluding Observations: Cambodia, CRC/C/15/Add.128, 2000, para. 37; Grenada, CRC/C/15/Add.121, 2000, para. 18; Suriname, CRC/C/15/Add.130, 2000, para. 35; Armenia, CRC/C/15/Add.119, 2000, para. 28; Georgia, CRC/C/15/Add.124, 2000, para. 34.

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of Article 20 CRC, namely the rights of the child in placements.98 In this context, the CRC Committee recommends that urgent attention be given to ensuring the effective monitoring of children’s treatment in care institutions.99 This monitoring must also allow for periodic review, independent complaint mechanism, and effective and accessible monitoring procedures. 100 Furthermore, Article 19 CRC places a clear obligation on any caregiver to protect the child from all forms of violence.101 Corporal punishment must be prohibited by law in alternative care as well as in all other settings.102 The use of force and restraints is only permissible in very limited circumstances. Restraints by means of drugs and medication should be based on therapeutic needs and should never be employed without evaluation and prescription by a specialist.103 15 Strict measures need to ensure that the child care institutions meet child-friendly standards and comply with the statutory safety regulations. Living in alternative care does not deprive the child of other rights under the CRC. The child has the same right as other children to education, to adequate food, to medical care, to leisure time, to religious freedom and to privacy.104 Quality standards of the institution and the personnel working in the residential and foster care systems have to be provided for all available forms of alternative care options.105 The CRC Committee recommends unannounced visits by independent authorities and the inclusion of opinions of accommodated children and nursing staff to verifying compliance with the required child-friendly standards.106 Furthermore, medical and psychological services provided to children in such institutions should be independently administered in order to offer resident children a reliable and objective point of contact. Wherever possible and not detrimental to the well-being of the child, the child’s contact with the parents shall be maintained.107 States Parties shall stipulate limitations to the maximum permitted duration of stay in children’s institutions and provide for measures to ensure the integration of children back into society, i.e. in a foster family.108 Also, States Parties are encouraged to continue providing children with the civil and socio-economic rights guaranteed by the Conven-

See → Article 25 mn. 2. CRC Committee, Concluding Observations: Lithuania, CRC/C/LTU/CO/3-4, 2013, paras 33-34; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 40. 100 CRC Committee, Concluding Observations: Cameroon, CRC/C/CMR/CO/3-5, 2017, para. 31; Lebanon, CRC/C/LBN/CO/4-5, 2017, para. 26; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 44; Kyrgyzstan, CRC/C/15/Add.127, 2000, para. 35; Colombia, CRC/C/15/Add.137, 2000, para. 42. 101 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 33. See also → Article 19 mns. 1 et seq. 102 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 22. See also UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 92 et seq. 103 UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 97. 104 See UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, paras 83 et seq. Further see K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 206 et seq. 105 CRC Committee, Concluding Observations: Pakistan, CRC/C/PAK/CO5, 2016, para. 44 c; Samoa, CRC/C/WSM/CO/2-4, 2016, para. 35 c; Slovakia, CRC/C/SVK/CO/3-5, 2016, para. 34 b. 106 CRC Committee, Recommendations, Day of General Discussion: Violence against Children, CRC/C/100, 2000, para. 688. 107 CRC Committee, Recommendations, Day of General Discussion: Violence against Children, CRC/C/100, 2000, para. 688; General Comment No. 14, CRC/C/GC/14, 2013, para. 65. 108 See CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 35; Recommendations, Day of General Discussion: Children without parental care, CRC/C/153, 2006, para. 675. Further see N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 59. 98

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tion while being accommodated in a child care institution to the same extent as is the case with non-institutionalised children.109 In addition, children in care should themselves have access to a complaint mecha- 16 nism placed within the institution but at the same time substantially independent of the residential care facility or foster carers. This could be an independent social worker of trust in whom they may confide in total confidentiality. This person should be wellknown to the child and easy to access and acting effectively and impartially.110 Finally, children under alternative care need to be prepared for the transition of independent life. Their aftercare life must be planned, and the child should be encouraged to take part in the planning. States Parties are stimulated to let children stay in care during a period after they have turned 18 years in order to facilitate the transition to adult life. 111 Finally, Article 20 para. 3, sentence 2 CRC stresses that the ethnic, religious, cultural 17 and linguistic backgrounds of the child as well as the continuity of the child’s education are to be duly considered in the establishment of alternative child care arrangements. 112 According to the CRC Committee, the basic premise is that children should be kept in their own distinctive communities in order to maintain children’s identities.113 The prerequisite to pay due regard to continuity and preservation of the child’s identity is not an absolute obligation; there remains room for other considerations. It is however decisive that States Parties must appropriately balance the principles listed in Article 20 para. 3, sentence 2 CRC with any other relevant factors which have an impact on the necessity and suitability of alternative care.114 The principles of cultural identity and continuity in the education of children further clarify that the interests of the child are usually best served when family members are responsible for his or her upbringing.115 The CRC Committee constantly emphasises the principle of individualisation, which reflects the idea that every child is unique and the separation from family environment and the placement into a care institution should always be looked at case-by-case.116

V. Embedding of Article 20 CRC into the System of International Human Rights Protection Explicit stipulations relating to extra-familial care cannot be found in any other uni- 18 versal human rights treaties.117 At best, extra-familial care could be implied in Article 24 para. 1 ICCPR which affords children the right to such measures of protection as required of their status of minors, and in Article 10 para. 3 ICESCR which provides that special measures of protection and assistance should be taken on behalf of all chilFRA, Handbook on European law relating to the rights of the child, 2015, p. 97. See CRC Committee, Concluding Observations: Bulgaria, CRC/C/BGR/CO/3-5, 2016, paras 16, 28; Pakistan, CRC/C/PAK/CO/5, 2016, paras 43-44. 111 UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, para. 132, see also K Sandberg, in: U Kilkelly/ Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 209. 112 See CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 48. 113 CRC Committee, Recommendations, Day of General Discussion on Children without Parental Care, CRC/C/153, 2006, para. 673. 114 J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 753. 115 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 62; see also Article 20/21 mn. 2, 6. 116 CRC Committee, Recommendations, Day of General Discussion on Children without Parental Care, CRC/C/153, 2006, paras 667-668. 117 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 15 et seq. 109

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dren.118 However, none of the relevant expert committees has dedicated significant attention to children deprived of their family environment. Only at the regional level, Article 17 para. 1 lit. c of the Revised European Social Charter makes clear that the States Parties must adopt appropriate measures to ensure the protection of children who have to live temporarily or permanently without family support, and Article 25 ACRWC also includes a similar provision. In a certain way, Article 20 CRC rather “re-establishes” the principles of the (non-binding) UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to foster care and national and international adoption,119 which was adopted by the UN General Assembly on 12 March 1986.120 However, this Declaration has a more limited scope than Article 20 CRC, since it covers only children who cannot be cared for by their parents. In contrast, Article 20 CRC applies also to children who need to be removed from their family environment.121 Accordingly, the UN General Assembly on 18 December 2009 adopted (new) Guidelines on the rights of children who cannot be cared for by their parents.122 Although also non-binding in nature, the 2009 UN Guidelines offer a comprehensive set of orientation to take into account when contemplating measures to secure the well-being of children deprived of their family environment.123 19 At the European level, comparatively strict requirements apply, which is mainly due to the jurisprudence of the ECtHR and the work of the organs of the Council of Europe. The CoE Committee of Ministers and the Parliamentary Assembly have both enacted relevant recommendations on the rights of children in institutions,124 which are at least partly reflected in the jurisprudence of the ECtHR. Not only in cases of adoptions, but also in cases where a child is housed in a public welfare institution or a foster family, the ECtHR considers that the State authorities are required to take all reasonable measures to ensure or support contact between children and their biological parents as far as this does not endanger the child's well-being.125 The ECtHR has also ruled that a child given to a foster family will re-establish new ties over time, and that it is not necessarily in the child's best interests to disrupt or interrupt these links by making another custody decision in favour of the biological parents.126 However, this does not mean that children 118 Similarly, J Tobin, Article 20, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 725, at 727 et seq. 119 See S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 7; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 100 et seq. 120 UN General Assembly Resolution 41/85: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, 3 December 1986, Annex. 121 N Cantwell/A Holzscheiter, Article 20, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 20, 2007, p. 17 et seq. 122 UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009. As to the development of these guidelines see K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 189; J Davidson, Closing the implementation gap: moving forward with the United Nations Guidelines for the Alternative Care of Children, International Journal of Child, Youth & Family Studies 6 (2015), p. 379-387. 123 UN Guidelines for the Alternative Care of Children, UN General Assembly Resolution 64/142, A/RES/64/142, 2009, paras 1-2. 124 Committee of Ministers, Recommendation Rec (2005)5, of 16 March 2005; Parliamentary Assembly Recommendation 1601 (2003), of 2 April 2003. 125 ECtHR, Judgment of 7 July 2014, No. 19315/11, paras 123 et seq. – T. v. The Czech Republic; Judgment of 6 September 2018, No. 2822/16, para. 92 – Jansen v. Norway. 126 ECtHR, Judgment of 26 May 1994, No. 16969/90, para. 55 – Keegan v. Ireland. But see also ECtHR, Judgment of 26 February 2004, No. 74969/01, paras 41 et seq. – Görgülü v. Germany; Judgment of 21 December 2010, No. 20578/07, para. 62 – Anayo v. Germany.; Judgment of 15 September 2011, No. 17080/07, para. 81 – Schneider v. Germany.

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after the separation from their parents should have no contact with their birth parents at all. Even with a third-party placement, the relationship of the child with his or her biological parents is very important in order to maintain the parent-child relationship and a return option. Against this background, the Court decided in the case Olsson against Sweden (No. 1) that the accommodation of children in a foster home located over 500 km away from the biological parents was a violation of Article 8 ECHR.127 Exceptions to the upholding of a parent-child-relationship are admissible only insofar as the mental or physical well-being of the child suggests a complete or partial ban.128 Incidentally, it makes a difference in the return to the birth parents, whether the child is housed with foster parents or in an orphanage. If a child lives in an orphanage, the termination of the bond is of less importance than when returning from a foster family.129 On the other hand, the foster-child relationship is "institutionally temporary" and, in any case, must in principle keep a return perspective to the biological parents.130 A care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child.131 Only if legal and social parenthood falls apart in the long term is the release of the child from the foster family classified as not being in the best interests of the child. Thus, the basic rights of the biological parents are not insurmountable, but can be limited in terms of the child's best interests.132 Apart from that, (temporary) housing of the child cannot be ordered at all if more 20 lenient means, such as socio-economic support of the persons with custody, are considered appropriate.133 In cases relating to public-care measures, the ECtHR recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care.134 However, this margin is not unfettered. For example, the Court has in certain instances attached weight to the fact whether the authorities, before taking a child into public care, had first attempted to take less drastic measures, such as supportive or preventive ones, and whether these had proved unsuccessful.135 A stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed.136 The rights to effectively participate in the proceedings of both the parents or legal guardians and the child must also be adequately ECtHR, Judgment of 24 March 1988, No. 10465/83, para. 84 – Olsson v. Sweden (No. 1). See ECtHR, Judgment of 13 March 2012, No. 4547/10, para. 134 – Y.C. v. The United Kingdom. 129 This, at least, is the view expressed by the (German) Federal Constitutional Court, Judgment of 14 June 2014, 1 BvR 725/14, para. 28. 130 ECtHR, Judgment of 9 April 2019, No. 72931/10, paras 114 et seq. – V.D. v. Russia. See also (German) Federal Constitutional Court, Judgment of 20 May 2014, 1 BvR 3190/13, para. 20. 131 ECtHR, Judgment of 10 September 2019, No. 37283/13, para. 208 – Strand Lobben and Others v. Norway. 132 See G Britz, in: D Coester-Waltjen et al. (eds.), Das Pflegekindverhältnis – zeitlich befristete oder dauerhafte Lebensperspektive für Kinder?, 2014, p. 53-87; M Diouani-Streek/L Salgo, Probleme sozialer Elternschaft für Pflegeeltern und Vorschläge zu ihrer rechtlichen Anerkennung, Recht der Jugend und des Bildungswesens 2016, p. 176, at 185 et seq. 133 ECtHR, Judgment of 26 October 2006, No. 23848/04, paras 73 et seq. – Wallová u. Walla v. The Czech Republic; Judgment of 18 December 2008, No. 39948/06, para. 50 – Saviny v. Ukraine. 134 See, e.g., ECtHR, Judgment of 12 July 2001, No. 25702/94, para. 155 – K. and T. v. Finland; Judgment of 7 August 1996, No. 17383/90, para. 64 – Johansen v. Norway. 135 See, e.g., ECtHR, Judgment of 26 February 2002, No. 46544/99, para. 75 – Kutzner v. Germany; Judgment of 18 June 2013, No. 28775/12, para. 86 – R.M.S. v. Spain. 136 ECtHR, Judgment of 30 July 2017, No. 37283/13, para. 211 – Strand Lobben and Others v. Norway. 127

128

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taken into account during the placement process.137 Moreover, Article 5 para. 1 lit. d ECHR obliges the States Parties to provide institutions which sufficiently meet the requirements of safety, education, training and education of the child.138 The ECtHR takes the corresponding obligations to provide shelter for refugee children and unaccompanied minors from Article 5 para. 1 lit. f ECHR.139 The transfer of (small) children and their families even violates the prohibition of inhuman treatment under Article 3 ECHR insofar as the authorities of the target State give no individual guarantee regarding the maintenance of the family unity and of a child-friendly accommodation.140 Similarly, with regard to the protection of the family, the Court inferred from Article 3 ECHR that small children should not be permanently or temporarily housed with their parents in deportation shelters which are not child-friendly.141 In particular, the ECtHR rightfully considered a placement of an unaccompanied girl aged five years without any family members or other custodial persons and guardians in an asylum residence as a “total lack of humanity towards someone of her age and in her situation”.142 Also in other cases, the Court has ruled that the failure to appoint a guardian to an unaccompanied minor may constitute a violation of the State’s positive obligations under the prohibition of inhuman or degrading treatment.143 At the level of Council of Europe, there are extra efforts to improve the situation of children living in child care institutions.144 The EU strongly supports these recommendations. For instance, according to Articles 21 and 22 of Directive 2013/33/EU,145 refugee accommodation must be decent as well as child- and family-friendly.

Article 21 [Adoption] States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

137 ECtHR, Judgment of 19 February 2013, No. 1285/03, paras 89, 95 et seq. – B v. Romania (No. 2); Judgment of 14 March 2013, Nos. 18734/09 and 9424/11, para. 50 – B.B. and F.B. v. Germany. 138 Clearly so: ECtHR, Decision of 16 May 2002, No. 39474/98, para. 79 – D.G v. Ireland; ECtHR, Judgment of 30 July 2017, No. 37283/13, para. 212-213 – Strand Lobben and Others v. Norway. See also → Article 25 mns. 1 et seq. 139 See ECtHR, Judgment of 24 October 2013, No. 71825/11, paras 76 et seq. – Houssein v. Greece. 140 See ECtHR, Judgment of 4 November 2014, No. 29217/12, paras 119 et seq. – Tarakhel v. Switzerland. 141 ECtHR, Judgment of 19 January 2012, Nos. 39472/07 and 39474/07, paras 91 et seq. – Popov v. France. 142 ECtHR, Decision of 12 October 2006, No. 13178/03, para. 69 - Mubilanzila Mayeka v. Belgium. See also → Article 22 mn. 30. 143 ECtHR, Judgment of 5 April 2011, No. 8687/08, para. 88 – Rahimi v. Greece. 144 See Parliamentary Assembly Recommendation 1601 (2003) of 2 April 2003; Committee of Ministers Recommendation Rec (2005)5 of 16 March 2005; Parliamentary Assembly Recommendation 1934 (2010) of 5 October 2010. 145 OJ EU 2013, L 180, p. 96.

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(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Adoption Prerequisites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Scope of Article 21 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Procedure for Authorising Adoption (Article 21 lit. a CRC) . . . . . . . . . . . . . . 3. Safeguards and Standards in Inter-Country Adoptions (Article 21 lit. b to lit. e CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Embedding of Article 21 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 3 7 11 18

I. Generalities Like Article 20 CRC, also Article 21 CRC regulates the situation of a child requiring 1 care for outside of the family environment. However, Article 21 CRC standardises only one of the possible forms of alternative care listed under Article 20 para. 3 CRC, namely adoption, more comprehensively. Thereby, Article 21 CRC applies only to those States Parties which provide for or recognise adoption in their domestic legal system. The norm does not guarantee a right to adopt someone,1 but rather stipulates requirements which must be met when States Parties provide for or recognise child adoption within their national legal order. However, this obligation applies not only to States Parties which recognise adoption in their own legal system, but also to States Parties that permit the transfer of children abroad for the purpose of adoption.2 Throughout the drafting of Article 21 CRC, the traditional forms of childcare and 2 upbringing found in various cultures and religions had to receive equal consideration.3 Islamic legal, cultural and religious traditions do not recognise adoption; the Islamic family understanding does not include non-blood relatives.4 The Islamic law concept of kafalah (custodial care relationship) allows the long-term inclusion of a child in the family in legally secure manner, although there are no further legal consequences as regards the status of the child. Kafalah is a commitment to take responsibility for the protection, education and maintenance of an abandoned child, but does not entail a

1 In a similar vein, see ECtHR, Judgment of 22 January 2008, No. 43546/02, para. 42 – E.B. v. France; Judgment of 17 January 2017, Nos. 6033/13 et al., para. 378 – A.H. and Others v. Russia. 2 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 102. 3 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 335 et seq. 4 See S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 21; J Gathia/A Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 337 et seq.

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parent-child relationship and inheritance rights by law5 which are widely recognised as minimum standards for a system of adoption.6 Kafalah is revocable and ends when the child reaches adulthood and thus resembles more a special guardianship than adoption.7 Therefore, Article 21 CRC, which regulates the adoption procedure, relates only to States Parties that recognise or permit adoption.8 Neither Article 20 CRC nor Article 21 CRC obligate the implementation of this legal institution.9 The diverse ways in which adoption is configured in different States remain also unaffected by Article 21 CRC. For example, unlike the German adoption model, French law differentiates between simple and full adoption; only the latter leads to a definitive break with the family of origin and grants the child, in relation to the adoptive parents, the status of a biological child.10 Cases which originate in kafalah or other situations which are not equivalent to adoption do not fall in the ambit of Article 21 CRC, although they are regulated by Article 20 CRC.11

II. Adoption Prerequisites 1. Scope of Article 21 CRC As demonstrated, neither Article 20 nor Article 21 CRC mandate that adoption must be made available as potential option for the care of the child. Nor does the Convention prohibit such an option. Instead, Article 21 CRC provides that if a State party establishes or permits a system of adoption it must have some form of legal regulation and comply with the standards outlined in this provision.12 In the specific context of domestic adoption, the CRC Committee has urged States where a system of adoption exists to be more proactive in promoting, developing and applying this option as alternative form of care for children deprived of their family environment.13 4 With the introduction of Article 21 CRC, binding adoption prerequisites were created for the first time in a human rights convention.14 The provision takes over the conditions of the UN General Assembly’s Declaration on foster placement and adoption of 3 3

5 See CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 2.3. See also ECtHR, Judgement of 4 October 2012, No. 43631/09, para. 51 – Harroudj v. France. 6 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 768. 7 CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 4.2. 8 See Commission on Human Rights, E/CN.4/1989/WG.1/WP.3, 1988; E/CN.4/1989/WG.1/WP.4, 1988. Further see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 346; S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 19. 9 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 766. 10 See S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 15 et seq. 11 See → Article 20 mn. 2. 12 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 767-768. 13 See, e.g., CRC Committee, Concluding Observations: China, CRC/C/15/Add.56, 1996, para. 38; Azerbaijan, CRC/C/AZE/CO/3-4, 2012, paras 54 et seq.; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 51; Belgium, CRC/C/BEL/CO/3-4, 2010, para. 51. 14 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 343 et seq.

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December 1986.15 The child’s welfare and best interests represent the highest, overarching principle in relation to the adoption proceedings. Unlike Article 3 CRC and Article 20 CRC, which speak only of “primary consideration”,16 the child’s best interests under Article 21 CRC is not only to consider primarily, but it is always of paramount importance.17 The CRC Committee observes that “paramount consideration” means that the child’s best interests are to be the determining factor in any decision on adoption.18 Thus, while the child’s interests may not be the sole consideration, they are presumed to take preference over all other interests, including those of the child’s biological parents, prospective adoptive parents, accredited adoptions agencies and any State authority.19 Importantly, this obligation extends to both domestic and international adoptions.20 The competent authorities conducting adoption proceedings are especially obligated to select the most appropriate environment for a child.21 This proviso illustrates the cultural and historical change that adoption has gone through. If adoption was at former times a tool to help a childless couple select an heir,22 the adoption of today serves primarily the well-being of the child.23 The interests of adoptive parents that were once dominant are now afforded a significantly lesser role.24 Therefore, adoption may be chosen only when all other efforts to ensure appropriate conditions within the family have previously failed.25 Since adoption entails the establishment of a real, full-fledged and fundamentally irreversible parent-child relationship, it may only occur if a permanent upbringing by the biological parents is excluded.26 Parental poverty alone must in no case represent the grounds for the release of a child into adoption.27 To determine the child’s best interests, the child which has been cleared for adoption 5 must undergo a psychological and medical examination. Information on the family of origin must be collected.28 Children who are disadvantaged due to a disability or illness shall not be discriminated against during the adoption procedure.29 When a 15 UN General Assembly Resolution 41/85: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, 3 December 1986, Annex. 16 For more detail see S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 131 et seq. 17 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 22. 18 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 38. 19 See R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 285. 20 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 770. 21 See UN General Assembly Resolution 41/85: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, 3 December 1986, Annex, Article 14. 22 For more detail see J Gathia/A Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 372 et seq. 23 See, for example, W Knobbe, Psychologische Aspekte der Adoption, Familie-Partnerschaft-Recht 2001, p. 309-318. 24 See I Fahrenhorst, Adoption and Child Welfare – a German Point of View with Special Regard to the European Convention on Human Rights, Tilburg Foreign Law Review 7 (1998), p. 185-212. See also S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 24 et seq. 25 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 25. 26 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 32. 27 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 100. 28 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 34. 29 See Article 2 para. 1 CRC.

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child’s specific needs occasionally require hospital treatment, the same opportunities of access to adoptive parents as other children must be ensured, too.30 Furthermore, the best interests of the child in the context of adoption cannot be defined without consideration of the child’s view. It is vitally important that the child is heard in any adoption proceedings and his or her view be given due weight in accordance with his or her age and maturity.31 6 The CRC Committee constantly stresses the need for States Parties to develop a comprehensive national policy consisting of all appropriate legislative and institutional measures to regulate and monitor the practice of adoption.32 It has recommended that States Parties develop non-discriminatory policies and procedures for screening the capacity of persons to become adoptive parents.33 These policies must be non-discriminatory and based not only on the material conditions, but also on other conditions that enable the child to grow up in a healthy and sound environment with responsible (adoptive) parents who best respond to the child’s needs.34 States Parties must further ensure that children and prospective adoptive parents are adequately prepared by qualified professionals about their upcoming adoption.35 Although Article 21 CRC does not expressly require States Parties to establish a machinery to monitor the well-being of the adopted child, as is the case with Article 24 lit. f ACRWC, there is strong argument for such an obligation of post-adoption monitoring.36 Importantly, any adoption system must be consistent with all the rights under the Convention. States Parties must therefore develop procedures to gather and preserve information, to the extent possible, about the identity and nationality of a child’s biological parents, so this can be made available to the child when appropriate,37 at the latest at the age of 18 years.38 In view of Article 30 CRC, the CRC Committee recommends that States Parties ensure the right of adopted children from a minority group or of indigenous origin, as far as possible, to maintain one of their original first names.39

2. Procedure for Authorising Adoption (Article 21 lit. a CRC) 7

Article 21 lit. a CRC outlines the minimum procedural safeguards and organisational structures that States Parties must establish in order to regulate their system of adoption

30 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 38 et seq. 31 See CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 55-56. See also CRC Committee, Concluding Observations: Bulgaria, CRC/C/BGR/CO/3-5, 2016, para. 37; Albania, CRC/C/ALB/CO/2-4, 2012, para. 57 a. 32 See, e.g., CRC Committee, Concluding Observations: Guatemala, CRC/C/15/Add.154, 2001, para. 35; Kazakhstan, CRC/C/KAZ/CO/3, 2007, para. 44; Austria, CRC/C/AUT/CO/3-4, 2012, para. 43; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 52. 33 CRC Committee, Concluding Observations: Armenia, CRC/C/ARM/CO/3-4, 2013, para. 34; Serbia, CRC/C/SRB/CO/1, 2008, para. 43 d; Lesotho, CRC/C/15/Add.147, 2001, paras 39 et seq. 34 CRC Committee, Concluding Observations: Armenia, CRC/C/ARM/CO/3-4, 2013, para. 34 b; Lesotho, CRC/C/15/Add.147, 2001, para. 40. 35 CRC Committee, Concluding Observations: Mozambique, CRC/C/MOZ/CO/2, 2009, para. 56 c; Azerbaijan, CRC/C/AZE/CO/3-4, 2012, para. 55 c; Bulgaria, CRC/C/BGR/CO/2, 2008, para. 38 b. 36 For more detail see P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 781-782. 37 CRC Committee, Concluding Observations: Denmark, CRC/C/DNK/CO/5, 2017, para. 16; Bulgaria, CRC/C/BGR/CO/3-5, 2016, para. 37 d; Azerbaijan, CRC/C/AZE/CO/3-4, 2012, para. 55 f. 38 CRC Committee, Concluding Observations: New Zealand, CRC/C/NZL/CO/3-4, 2011, para. 34. See also → Article 7 mn. 17. 39 CRC Committee, Concluding Observations: New Zealand, CRC/C/NZL/CO/3-4, 2011, para. 34 c.

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in conformity with the Convention.40 The obligation equally applies to both national and inter-country adoptions.41 It imposes two core conditions. Firstly, Article 21 lit. a CRC requires States Parties to ensure that the adoption of a child is only possible when authorised by a competent authority with ultimate responsibility for the system of adoption. Competent authorities may be judicial or administrative in nature; in that regard, States Parties enjoy discretion.42 The CRC Committee has, however, indicated that “competence” in this context requires that sufficient human, technical and financial resources are made available to the authority and that adequate training is provided.43 The adoption of laws and procedures to ensure that the adoption is permissible, is the 8 second contingent requirement of Article 21 lit. a CRC. States Parties must adopt appropriate laws and procedural rules to be applied by the competent authorities.44 The law and procedures have to be clear, simple, not too time-consuming, and must pay adequate attention to the best interests of the child.45 If considerable variation exists across jurisdictions within the State, the CRC Committee urges States Parties to harmonise their adoption laws and procedures.46 Any discriminatory practices concerning adoption procedures are heavily criticised by the CRC Committee. For instance, it expresses concern about the apparent gender bias in favour of girls in the adoption process in Grenada and about the difficulties in placing children of Roma origin within the adoption procedures in Bulgaria, Slovakia and Hungary.47 The requirement that the adoption is permissible includes, if required by national law, 9 a means to obtain the informed consent of the persons concerned after the provision of any necessary counselling. The consent must be given by all persons concerned, and in knowledge of the facts and, where appropriate, after the solicitation of advice and counselling in order to ensure that the consent is provided voluntarily and based on a full understanding of the process and the consequences of the adoption.48 This prerequisite is of particular importance when national law makes adoption dependent upon the consent of the child.49 Pursuant to Article 21 lit. a CRC, the decision as to whether national law should condition adoption upon the consent of the child lies fundamentally with the States Parties’ discretion. However, such a consent or, at least, the possibility given to the 40 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 762, 773. 41 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 782. 42 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 29. 43 See CRC Committee, Concluding Observations: Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 44 c; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 51 a; Panama, CRC/C/15/Add.68, 1997, para. 31; Bulgaria, CRC/C/BGR/CO/2, 2008, para. 38; Georgia, CRC/C/GEO/CO/3, 2008, paras 38-39. 44 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 32. 45 CRC Committee, Concluding Observations: Armenia, CRC/C/15/Add.119, 2000, para. 30; Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, para. 50; Lithuania, CRC/C/LTU/CO/3-4, 2013, para. 35; Luxemburg, CRC/C/LUX/CO/3-4, 2013, para. 34; Venezuela, CRC/C/VEN/CO/2, 2007, para. 49; Gabon, CRC/C/15/Add.171, 2002, para. 37. 46 CRC Committee, Concluding Observations: Canada, CRC/C/CAN/CO/3-4, 2012, para. 57; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 52; El Salvador, CRC/C/SLV/CO/3-4, 2010, para. 50. 47 See CRC Committee, Concluding Observations: Grenada, CRC/C/15/Add.121, 2000, para. 19; Bulgaria, CRC/C/BGR/CO/2, 2008, para. 37; Slovakia, CRC/C/SVK/CO/2, 2007, para. 45; Hungary, CRC/C/HUN/CO/2, 2006, para. 34. 48 See CRC Committee, Concluding Observations: Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 49; Democratic Republic of Congo, CRC/C/COD/CO/2, 2009, para. 48 c. 49 G Lange, Die Adoption nach internationalem Recht, Familie-Partnerschaft-Recht 2001, p. 327, at 329.

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child to express his or her views is necessary.50 The child’s right to express views derives from Article 12 CRC, so that the hearing of the child, the arrangement of which must correspond to the level of the development and the maturity of the child,51 may not be waived. The child shall be heard throughout the whole adoption process, beginning with the initial separation from his or her parents, throughout the decision to clear for adoption and finally ending up with the implementation of the adoption relationship. The CRC Committee regularly stresses the need for States Parties to ensure that the adoption process is consistent with Article 12 CRC and urges States Parties to require children over the age of 12 years to consent to the adoption.52 10 With the exception of extreme cases such as the death of the parents or permanent neglect of the child in terms of Article 9 para. 1 CRC, the informed consent of the (biological) parents must also be obtained in order to avoid infringement of the right to respect for private and family life (Article 16 CRC). The rights of the child arising from Article 7 and Article 9 CRC would also be violated if consent of the biological parents is lacking.53 For instance, the CRC Committee expresses concern about the high incidence of single adolescent mothers being forced to give up their children for adoption without their express consent.54 Parental consent to adoption given before the child’s birth is regarded as ineffective. 55 The right of the mother to withdraw her prior consent may not be subject to excessively strict temporal restrictions.56 Lastly, adopted children have the right, at an appropriate time, to know of their true identity and origin.57

3. Safeguards and Standards in Inter-Country Adoptions (Article 21 lit. b to lit. e CRC) 11

The provisions of Article 21 lit. b to lit. e CRC apply only to inter-country adoptions. They provide additional safeguards specifically for transnational cases of adoption. Inter-country adoption describes the adoption of a child by persons habitually resident in a State other than the country where the child is resident. In these cases, adoptive parents and adopted children regularly have a different nationality and a different cultural background. Article 21 CRC does not distinguish between adoption occurring in the country of origin or in the receiving State. Inter-country adoption, due to the conflict of various legal systems, entails not only organisational and procedural problems requiring regulation, but also poses significant risks for all involved, especially for the child. Since in a case of inter-country adoption the child to be adopted is usually removed from his or her family or socio-cultural environment, there is a risk that this will affect not only his or her right to know his or her origin, but also the personal development and cultural iden50 See S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 39. See also P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 793. 51 See → Article 12 mn. 14. 52 CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 27; Sierra Leone, CRC/C/SLE/CO/2, 2008, para. 46 a; Australia, CRC/C/AUS/CO/4, 2012, para. 53; New Zealand, CRC/C/NZL/CO/3-4, 2011, para. 34. 53 Rightly so, S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 39. 54 CRC Committee, Concluding Observations: Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 49 c. See also CRC Committee, Concluding Observations: Kyrgyzstan, CRC/C/15/Add.244, 2004, para. 41. 55 CRC Committee, Concluding Observations: Hungary, CRC/C/HUN/CO/2, 2006, paras 17, 33. 56 CRC Committee, Concluding Observations: Hungary, CRC/C/HUN/CO/2, 2006, para. 34. 57 CRC Committee, Concluding Observations: Ukraine, CRC/C/15/Add.191, 2002, para. 49; Kyrgyzstan, CRC/C/15/Add.244, 2004, para. 41; China, CRC/C/CHN/CO/2, 2005, para. 53. See also → Article 7 mn. 17.

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tity of the child.58 Therefore, inter-country adoption should be treated as an exceptional and subsidiary measure and not as an alternative means of child care.59 In recent decades, there has been a striking increase in adoptions of children from 12 developing countries to Western industrialised nations.60 In particular, many children from developing countries are received for adoption in the United States of America – the only State which is not a party to the CRC61 – although the number of international adoptions in the US began to decline in recent years.62 But still, roughly 40,000 adoptions take place annually worldwide, between more than a hundred countries; children come mainly from Eastern Europe, Africa and Asia.63 For instance, in Germany, the proportion of adopted children having foreign nationality is clearly increasing. Adoptions from abroad make up around a third of all adoption procedures conducted in Germany.64 One reason for the increase in inter-country adoption is that the number of involuntarily childless couples in the Western world is constantly growing, while the number of children awaiting adoption in industrialised countries continuously falls.65 Where couples are faced with involuntary childlessness early on, they now have various options of artificial procreation available to them. Curiously, this development has not diminished rates of inter-country adoption, but rather increased them.66 Many attempts at artificial procreation remain unsuccessful. In these cases, international adoption appears obviously a last “way out” to fulfil the urgent desire for a child.67 Some couples are even willing to pay large sums of money for the chance to adopt a child. As demand is greater than “supply”, the interrelationships are not well-balanced.68 To meet the huge “demand for adoptive children”, some commercial intermediaries employ illegal methods and harass or force poverty stricken pregnant women or new mothers to surrender their

58 See M Rupprecht, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 19, at 20; O Cvejić Jančić, in: eadem (ed.), The Rights of the Child in a Changing World, 2016, p. 1, at 20 et seq. 59 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 356-369. 60 See G Lange, Die Adoption nach internationalem Recht, Familie-Partnerschaft-Recht 2001, p. 327, at 328; H-J Albrecht, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 97, at 106 et seq. 61 See N Bartner Graff, Intercountry Adoption and the Convention on the Rights of the Child: Can the free Market in Children be controlled?, Syracuse Journal of International Law and Commerce 27 (2000), p. 405, at 419. 62 For more detail see TL Perry, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 329, at 336 et seq. 63 See J Maywald, Internationale Adoptionen – Stärkung oder Schwächung von Kinderrechten, FamiliePartnerschaft-Recht 2008, p. 499, at 501. 64 See J Maywald, Internationale Adoptionen – Stärkung oder Schwächung von Kinderrechten, FamiliePartnerschaft-Recht 2008, p. 499, at 501. 65 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 96. 66 See N Bartner Graff, Intercountry Adoption and the Convention on the Rights of the Child: Can the free Market in Children be controlled?, Syracuse Journal of International Law and Commerce 27 (2000), p. 405, at 406 et seq. 67 J Maywald, Internationale Adoptionen – Stärkung oder Schwächung von Kinderrechten, FamiliePartnerschaft-Recht 2008, p. 499, at 501. 68 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 2; H-J Albrecht, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 97, at 97.

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[Adoption]

children.69 Through such illegal trade, both the mothers and the children are forced into the role of victims of inter-country adoptions.70 13 Against this factual background, Article 21 lit. b to lit. e CRC places inter-country adoption under strict conditions.71 Since international adoption is not a means to satisfy the “need for children” in the Western world, but is rather intended to protect helpless children,72 Article 21 CRC does not aim to simplify inter-country adoption. Corresponding proposals during the drafting of the Convention were not included in the final text.73 Article 21 CRC is rather to be viewed in connection with the prohibition of child trafficking pursuant to Article 35 CRC and Article 3 OPSC.74 In addition to establishing standards of the rule of law in the adoption process, in which the interests of all persons involved, especially children, shall be adequately addressed, Article 21 CRC pursues the goal of quantitatively restricting inter-country adoption. Therefore, international adoption has only a subsidiary character when considered as an alternative form of extra-familial care within the meaning of Article 20 para. 3 CRC.75 The CRC Committee regularly emphasises that inter-country adoption is a measure of last resort76 and commends States Parties strongly for giving preference to domestic over inter-country adoption. 77 14 Under Article 21 lit. b CRC, States Parties are only permitted to authorise the intercountry adoption of a child when evidence demonstrates that the child cannot be placed in a foster or an adoptive family, or be cared for alternatively, in the child’s country of origin.78 The CRC Committee recommends that States Parties promote both domestic adoption and foster care in preference to inter-country adoption.79 However, not any other suitable manner of domestic alternative care is without risk for the well-being of the child. The CRC Committee rightly laments that informal and customary systems of care may be unmonitored and can lead to exploitation and abuse of the child.80 There69 N Bartner Graff, Intercountry Adoption and the Convention on the Rights of the Child: Can the free Market in Children be controlled?, Syracuse Journal of International Law and Commerce 27 (2000), p. 405, at 410. 70 See H-J Albrecht, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 97, at 98 et seq. See also TL Perry, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 329, at 340 et seq. 71 J Maywald, Internationale Adoptionen – Stärkung oder Schwächung von Kinderrechten, FamiliePartnerschaft-Recht 2008, p. 499, at 500. 72 S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 3. 73 See S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 23. 74 H-J Albrecht, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 97, at 101; O Cvejić Jančić, in: eadem (ed.), The Rights of the Child in a Changing World, 2016, p. 1, at 21 et seq. 75 See S Vité/H Boéchat, Article 21, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 21, 2008, p. 45. Different assessment by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 21.05-21.09. 76 CRC Committee, Concluding Observations: Mexico, CRC/C/15/Add.13, 1994, para. 18; Brazil, CRC/C/15/Add.241, 2004, para. 47; Nicaragua, CRC/C/15/Add.265, 2005, para. 39. 77 See CRC Committee, Concluding Observations: North Macedonia, CRC/C/MKD/CO/2, 2010, para. 49; Burkina Faso, CRC/C/BFA/CO/3-4, 2010, para. 49; Togo, CRC/C/TGO/CO/3-4, 2012, para. 47; Thailand, CRC/C/THA/CO/3-4, 2012, para. 53; Bolivia, CRC/C/BOL/CO/4, 2009, para. 47; Cameroon, CRC/C/CMR/CO/3-5, 2017, para. 32. 78 H Stöcker, Die UNO-Kinderkonvention und das deutsche Familienrecht, Zeitschrift für das gesamte Familienrecht 1992, p. 245, at 249. 79 CRC Committee, Concluding Observations: Belize, CRC/C/15/Add.252, 2005, para. 47; Lithuania, CRC/C/15/Add.146, 2001, paras 33 et seq. 80 See CRC Committee, Concluding Observations: Liberia, CRC/C/LBR/CO/2-4, 2012, para. 58; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 49; Myanmar, CRC/C/MMR/CO/3-4, 2012, para. 57; Niger, CRC/C/15/Add.179, 2002, para. 42; Zambia, CRC/C/15/Add.206, 2003, para. 42; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 51; Greece, CRC/C/GRC/CO/2-3, 2012, para. 45.

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fore, the CRC Committee is of the view that inter-country adoption may in some instance be preferred to domestic institutional care, in particular when a significant number of children live in orphanages and institutions for extended periods.81 This shows that, in addition to determining which domestic alternatives will be suitable options for the care of the child, it is necessary that the period of time where the child is in institutional care must not be too long before inter-country adoption can be considered.82 Under Article 21 lit. c CRC, States Parties shall ensure that the child concerned by in- 15 ter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption. The aim of the provision is to guarantee that children subject to inter-country adoption enjoy the same (not necessarily: the identical) level of protection as those subject to national adoption. One of the most important safeguards in that regard is to ensure that inter-country adoptions are recognised as legally valid in the countries involved.83 States Parties must respect the legal effect of an adoption made in another country.84 Another issue is the question of the nationality of a child subject to inter-country adoption. The CRC Committee expresses concern that inter-country adoption procedures are too long and thus risk resulting into discrimination and statelessness of the child.85 Further challenges of inter-country adoptions result in preserving the child’s identity and the child’s ethnic, religious, cultural and linguistic backgrounds. Article 21 CRC does not directly address these issues but Article 20 para. 3 CRC creates a presumption in favour of placing a child as far as possible with people of a similar background.86 Article 21 lit. d CRC obligates States Parties to take all appropriate measures to avoid 16 any improper financial gain for those involved in inter-country adoptions. To be considered as improper financial gain – in particular in light of Article 32 para. 2 of the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Adoption Convention) on the one hand,87 and Article 3 para 1 lit. a (ii) OPSC on the other hand – are all those financial benefits which exceed the costs and expenditures, including reasonable professional fees, of the persons involved in the adoption.88 In particular, the CRC Committee calls upon States Parties to ensure effective and systematic monitoring of all private adoption agencies in order to ensure that they do not make improper financial gain.89 What remains problematic is that the fact that adoptive parents can also exploit the child economically is addressed neither by Article 21 lit. d CRC nor by Article 3 para. 1 lit. a (ii) OPSC.90 81 CRC Committee, Concluding Observations: Nicaragua, CRC/C/NIC/CO/4, 2010, para. 56; Latvia, CRC/C/15/Add.142, 2001, para. 33. 82 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 801-802. 83 P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 803. 84 See UN General Assembly Resolution 41/85: Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, A/RES/41/85, 3 December 1986, Annex, Article 23. 85 CRC Committee, Concluding Observations: Switzerland, CRC/C/15/Add.182, 2002, paras 36-37. See also CRC Committee, Concluding Observations: Palau, CRC/C/15/Add.149, 2001, para. 40. 86 See P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 806. 87 32 ILM 1139. 88 Critical assessment by H-J Albrecht, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 97, at 118. 89 CRC Committee, Concluding Observations: Colombia, CRC/C/COL/CO/3, 2006, para. 56; Italy, CRC/C/ITA/CO/3-4, 2011, para. 42 c; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 51 b. 90 In that regard see also → Article 34 mn. 10.

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[Adoption]

Finally, Article 21 lit. e CRC specifies that the placement of the child in another country by competent authorities or organs shall be ensured by means of the promotion of bilateral and multilateral agreements between States Parties. Such an agreement is provided primarily by the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.91 In acknowledging that the realisation of the rights of children subject to inter-country adoptions requires international cooperation, the CRC Committee regularly recommends that States Parties ratify this Convention. 92 On the other hand, Article 21 CRC cannot stipulate that an adoption occurring within States not parties to the Hague Adoption Convention is only legally effective when compliant with the substantive provisions of the Hague Adoption Convention. Neither Article 21 CRC nor the Hague Adoption Convention requires States Parties to apply the substantive principles of the Convention in relation to third States.93 Yet, it is within this context that the CRC Committee commends States Parties to conclude bilateral agreements with sending countries that have not ratified the Hague Adoption Convention. The CRC Committee further urges the States Parties to warrant that sending States not party to the Hague Adoption Convention reach agreements with the authorities of receiving countries so as to ensure the suitability of the adoptive parents and post-adoption follow-up.94

III. Embedding of Article 21 CRC into the System of International Human Rights Protection With the exception of Article 24 ACRWC, there is no equivalent of Article 21 CRC in any other international human rights treaty. However, there are two international human rights instruments that, although non-binding in character, are relevant to adoption. This first is the 1986 UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with special Reference to Foster Placement and Adoption Nationally and Internationally,95 which details the principles that are to guide adoptions in general. The second instrument is the 2009 UN Guidelines for the Alternative Care for Children, which are intended to enhance the implementation of all international instruments dealing with the protection and well-being of children deprived of parental care.96 19 In addition, international adoption is the subject of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption of 29 May 1993.97 The objective of the Convention, as outlined in its Article 1, is to establish safeguards to ensure that inter-country adoption takes place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law. The provisions of the Hague Adoption Convention are more extensive than those 18

See → Article 21 mn. 16. See, e.g., CRC Committee Concluding Observations: Armenia, CRC/C/15/Add.119, 2000, para. 31; Guatemala, CRC/C/15/Add.154, 2001, para. 35; Nicaragua, CRC/C/15/Add.265, 2005, para. 39; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 50 c; Singapore, CRC/C/SGP/CO/2-3, 2011, para. 49 c; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 49; Angola, CRC/C/AGO/CO/2-4, 2010, para. 44; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 44; Vanuatu, CRC/C/VUT/CO/2-4, 2017, para. 33. 93 Rightly so: Administrative Court of Hamburg, Judgment of 4 March 2010, 13 K 2959/09, paras 3.2.1 et seq. 94 See CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 42 b; France, CRC/C/FRA/CO/4, 2009, para. 64 b; Russia, CRC/C/RUS/CO/3, 2005, para. 43. 95 UN General Assembly Resolution 41/85, A/RES/41/85, 3 December 1986. 96 UN General Assembly Resolution 64/142, A/RES/64/142, 24 February 2010, paras 1 and 2. 97 32 ILM 1139. 91 92

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contained in Article 21 CRC because they strengthen the rights of children by including detailed substantive and procedural rules, stipulate a mechanism for cooperation between the State of origin and the receiving State by establishing central authorities, and they recognise only those adoptions prescribed by the Convention itself.98 The Hague Adoption Convention thus rectifies, to some extent, the weaknesses of Article 21 CRC. 99 The examination of the child’s best interests in the adoption proceedings contained in the Hague Adoption Convention consists of three successive stages, namely (1) the assessment of adoption neediness and further conditions of adoption on the part of the child, (2) the assessment of the suitability for intercountry adoption and other adoption requirements on the part of potential adoptive parents, and finally (3) the assessment of whether in a given case the actual child fits to the actual candidates wishing to adopt.100 Against this background, it is not surprising that the CRC Committee routinely emphasises the need for States Parties that are not yet Parties to the Hague Adoption Convention to accede to it if they undertake inter-country adoptions.101 In Europe, the situation is different to the universal level. The European Conven- 20 tion on the Adoption of Children in its revised version of 2011, which replaces the Convention of the same name of 1967 and the previous revision of 2008, obligates the Member States to set minimum standards for the benefit of the child’s welfare. Unlike the previous version of 2008,102 the 2011 Convention now expressly obliges the States Parties to protect the rights of the child within the meaning of Article 21 CRC. 103 However, a right of adoption is not granted. Also, Article 8 ECHR does not guarantee the right to start a family, but rather holds the family as a prerequisite.104 For holding a family, a potential relationship, for example, between the biological father and the child born out of wedlock is sufficient.105 Moreover, parents’ financial and material poverty, or conditions attributable to such poverty, should never be the sole justification for placing a child in an institution to prepare for adoption.106 When releasing a child for adoption, which permanently cuts biological family ties, 21 the best interests of the child have to be of paramount importance. Article 8 ECHR does not provide a right to adopt, but once adoption has been completed, the relationship

98 For a fuller account see N Bartner Graff, Intercountry Adoption and the Convention on the Rights of the Child: Can the free Market in Children be controlled?, Syracuse Journal of International Law and Commerce 27 (2000), p. 405, at 420 et seq. 99 N Bartner Graff, Intercountry Adoption and the Convention on the Rights of the Child: Can the free Market in Children be controlled?, Syracuse Journal of International Law and Commerce 27 (2000), p. 405, at 425. A more restrictive view is expressed by W Weitzel, Das Haager Adoptionsübereinkommen vom 29.5.1993: Zur Interaktion der zentralen Behörden, Neue Juristische Wochenschrift 2008, p. 186-190. 100 See J Maywald, Internationale Adoptionen – Stärkung oder Schwächung von Kinderrechten, Familie-Partnerschaft-Recht 2008, p. 499, at 500. 101 See, e.g., CRC Committee, Concluding Observations: Lebanon, CRC/C/LBN/CO/4-5, 2017, para. 27; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 45; Kenya, CRC/C/KEN/CO/3-5, 2016, para. 44. 102 ETS No. 202. 103 For more detail see H-U Maurer, Europäisches Übereinkommen vom 27. November 2008 über die Adoption von Kindern (revidiert), Zeitschrift für das gesamte Familienrecht 2015, p. 1937-1944. 104 ECtHR, Judgment of 22 January 2008, No. 43546/02, para. 41 – E.B. v. France; Judgment of 4 October 2012, No. 43631/09, para. 41 – Harroudj v. France. 105 ECtHR, Decision of 29 June 1999, No. 27110/95 – Nylund v. Finland; Judgment of 21 December 2010, No. 20578/07, para. 62 – Anayo v. Germany; Judgment of 15 September 2011, No. 17080/07, para. 81 – Schneider v. Germany. 106 ECtHR, Judgment of 26 October 2006, No. 23848/04, para. 72 – Wallová and Walla v. the Czech Republic; Judgment of 18 December 2008, No. 39948/06, para. 50 – Saviny v. Ukraine; Judgment of 16 February 2016, No. 72850/14, paras 98 et seq., 119 – Soares de Melo v. Portugal. See also → Article 9 mn. 18.

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between the child and the adopting parents becomes subject to Article 8 ECHR.107 A child wo has been adopted is in the same legal position as if he or she were the natural child of the adopting parents.108 However, the ECtHR seeks to maintain ties with the original (biological) family through rights of access and taking into account the wishes of the child according to his or her age and maturity.109 The Court holds kafalah systems as well as "semi-open adoptions" (adoption forms that allow a social-family relationship between the child and its original parents) generally as being in conformity with Article 8 ECHR.110 When a child is lawfully adopted as a newborn, the adoptive family's interest in building and leading a family life together with the child is to be protected against attempts of the biological parents to re-establish contact with their child.111 The relationships between adoptive parents and children are of the same nature as those family relationships protected under Article 8 ECHR and are entitled to equal protection.112 Against this background, the ECtHR stresses that Article 8 ECHR must also be interpreted in the light of the Hague Adoption Convention, the CRC and the European Adoption Convention of 1967.113 22 Where a Contracting State permits adoption, the right to adopt must be guaranteed in accordance with Article 14 ECHR. Therefore, any rejection of the ability to adoption based on the homosexuality of the potential applicant is a violation of Article 14, read in conjunction with Article 8 ECHR.114 The ECtHR also considers the restriction of the possibility of stepchild adoption to a partner in a homosexual relationship to be a violation of the Convention, as there are no grounds for the unequal treatment of unmarried heterosexual and homosexual couples in this area. In particular, there is no evidence that same-sex couples are generally unfit for parenting.115 However, a different conclusion applies in regards to age discrimination. In order to meet with the best interests of the child, the ECtHR finds it justified that a single 47-year-old woman was denied the right of adoption.116

Article 22 [Children as Refugees] 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable interna107 See WA Schabas, The European Convention on Human Rights. A Commentary, 2015, Article 8, p. 358, at 394. 108 ECtHR, Judgment of 13 July 2004, No. 69498/01, para. 61 – Pla and Puncernau v. Andorra; Judgment of 3 May 2011, No. 56759/08, para. 55 – Negrepontis-Giannisis v. Greece. 109 ECtHR, Judgment of 13 March 2012, No. 4547/10, paras 134 et seq. – Y.C. v. The United Kingdom. 110 ECtHR, Judgment of 4 October 2012, No. 43631/09, para. 51 – Harroudj v. France; Judgment of 5 June 2014, No. 31021/08, paras 80 et seq. – I.S. v. Germany. 111 ECtHR, Judgment of 5 June 2014, No. 31021/08, para. 86 – I.S. v. Germany. See also ECtHR, Judgment of 31 May 2011, No. 35248/06, para. 88 – R. and H. v. The United Kingdom; Judgment of 10 September 2019, No. 37283/13, para. 209 – Strand Lobben and Others v. Norway. 112 ECtHR, Judgment of 22 June 2004, Nos. 78028/01, 78030/01, para. 140 – Pini and Others v. Romania; Judgment of 22 January 2008, No. 43546/02, para. 41 – E.B. v. France. 113 ECtHR, Judgment of 22 June 2004, Nos. 78028/01, 78030/01, para. 139 – Pini and Others v. Romania. See also ECtHR, Judgment of 26 July 2007, No. 58077/00, paras 33 et seq. – Chepelev v. Russia. 114 ECtHR, Judgment of 22 January 2008, No. 43546/02, para. 91 – E.B. v. France; see also ECtHR, Judgment of 13 December 2007, No. 39051/03, para. 79 et seq. – Emonet and Others v. Switzerland; Judgment of 26 February 2002, No. 36515/97, para. 35 – Fretté v. France. 115 ECtHR, Judgment of 19 February 2013, No. 19010/07, paras 114, 140 et seq. – X and Others v. Austria. 116 ECtHR, Judgment of 10 June 2010, No. 25762/07, paras 86 et seq. – Schwizgebel v. Switzerland.

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tional or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definition of Refugee Children (Article 22 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . III. State Obligations to Protect and Ensure (Article 22 para. 1 CRC) . . . . . . . . . . . . IV. International Cooperation (Article 22 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . V. Embedding of Article 22 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 7 20 24

I. Generalities Article 22 CRC provides protection of children who are received as refugees or who 1 are seeking refugee status in a host State. The inclusion of Article 22 in the Convention is largely unsurprising given both the reality that over half of the world’s refugees are children and the fact that children in refugee situations have particular vulnerabilities.1 An obligation to grant asylum to children is, however, not stipulated in Article 22 CRC. This is partly considered as a weakness of the Convention.2 However, in this regard the CRC is in full harmony with other human rights conventions, in particular with the 1951 Convention Relating to the Status of Refugees (Geneva Refugee Convention) and its 1967 Protocol3 which do not grant a right to asylum either.4 Against this backdrop, the child under Article 22 CRC has no right to seek asylum, but only a right to seek protection recognised under international law. The opinion of the CRC Committee, according to which all asylum-seeking children, including those who are accompanied by or separated from their parents, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection irrespective of their age,5 stands in line with these international law prerequisites, since it does not confer a right to asylum to the children concerned.6 1 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 819. 2 See, e.g., G Van Bueren, The International Law on the Rights of the Child, 1995, p. 362. 3 Convention Relating to the Status of Refugees of 28 July 1951, 189 UNTS 137, and Protocol Relating to the Status of Refugees of 31 January 1967, 606 UNTS 267. 4 See K Hailbronner, Asyl- und Ausländerrecht, 4th edn. 2016, mn. 1278; S Schmahl/F Jung, Die Genfer Flüchtlingskonvention, Neue Zeitschrift für Verwaltungsrecht-Extra 2018, p. 1, at 2. For a fuller account see J McAdam, Seeking Asylum Under the Convention on the Rights of the Child, International Journal of Children’s Rights 14 (2006), p. 251-274. 5 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 66. 6 Different assessment by C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 430.

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II. Definition of Refugee Children (Article 22 para. 1 CRC) Article 22 para. 1 CRC applies both to a child who is considered a refugee in accordance with applicable international or domestic law and to a child seeking refugee status.7 The use of the conjunctive “or” with regard to the applicable international or domestic law affirms the well-established principle that the status as a refugee is not dependent on a domestic determination of refugee status.8 Hence, the fact that a child is not considered a refugee under domestic law will not preclude a child from the protection of Article 22 para. 1 CRC where that child is a refugee under international law. 3 The term “refugee” is not defined in Article 22 CRC. A definition can be found, however, in Article 1A para. 2 of the 1951 Geneva Refugee Convention. Accordingly (and briefly put), a refugee is a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and who is outside the State of which he or she is a national or in which he or she had maintained habitual residence. Outside the scope of Article 1A para. 2 of the Geneva Refugee Convention are, as a rule, persons who flee within the boundaries of their State of origin.9 The central concept of persecution is not explained in Article 1A para. 2 of the Geneva Refugee Convention. It is, however, generally understood as a requiring evidence of the sustained or systemic violation of basic human rights such as the right to life, the prohibition of the death penalty, the prohibition of torture, the prohibition of slavery or the prohibition of arbitrary punishment, although other human rights violations also come into consideration if they are of a certain intensity.10 Persecution, in these terms, can be enacted through judicial officers and State authorities, but also by other actors, such as occupying powers or even non-State actors, insofar as the person concerned receives no adequate protection from the State authorities. 11 In order to satisfy the genuine risk requirement, an applicant must demonstrate both subjective fear of persecution and an objective risk of prospective harm. The reasoned and concrete risk of persecution is also sufficient.12 The probable causes of persecution enumerated in Article 1A para. 2 Geneva Refugee Convention are similar to the discrimination grounds prohibited by Article 2 para. 1 CRC; the belonging to a social group serves as a subsidiary catch-all provision.13 The catch-all term of the “social group” turns out to be open to development for the diverse and changing manifestations of discrimination-prone persecution situations. For instance, according to the jurisprudence of the CJEU, homosexuals can also form a particular social group within the meaning of Article 1A, para. 2 of the Geneva Refugee Convention; secrecy and clandestineness 2

7 See Commission on Human Rights, Report on the thirty-eigth session, E/CN.4/1982/30/Add.1, 1982, paras 94-99. 8 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 825. 9 S Schmahl/F Jung, Die Genfer Flüchtlingskonvention, Neue Zeitschrift für Verwaltungsrecht-Extra 2018, p. 1, at 4, with further references. 10 A Zimmermann/C Mahler, in: A Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol. A Commentary, 2011, Article 1A, para. 2, mns. 248 et seq.; K Hailbronner, Asyl- und Ausländerrecht, 4th edn. 2016, mn. 1280. 11 See A Zimmermann/C Mahler, in: A Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol. A Commentary, 2011, Article 1A, para. 2, mns. 268 et seq. 12 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, 2019, paras 37 et seq.; N Markard, Kriegsflüchtlinge, 2012, p. 210 et seq. 13 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 181; S Schmahl/F Jung, Die Genfer Flüchtlingskonvention, Neue Zeitschrift für Verwaltungsrecht-Extra 2018, p. 1, at 4.

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about one’s sexual orientation cannot be demanded. 14 In the credibility assessment of the asylum seeker, the authorities of the Member States of the EU shall therefore not enquire intimate details of sexual practices or other "tests" to prove homosexuality with regard to the person's dignity and private and family life.15 In principle, the definition of Article 1A para. 2 of the Geneva Refugee Convention 4 can serve as a basis for the interpretation of the word “refugee” in Article 22 CRC. 16 Yet, the mandate of the Geneva Refugee Convention is age-neutral, applying to all individuals without any express reference to refugee children. Therefore, the concept of a refugee within the meaning of Article 22 CRC must be interpreted in light of the Convention and thus in the light of the age, maturity and sex of underage refugees. The CRC Committee has noted the need to consider the development of, and formative relationship between, international human rights and refugee law and that the refugee definition of the 1951 Geneva Refugee Convention must be interpreted in an ageand gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children.17 This means that specific reasons and forms of persecution which specifically affect children deserve special attention. Such grounds consist, inter alia, in the persecution of the whole family, the recruitment of minors into armed forces, the trafficking of children, child prostitution, sexual exploitation of children, and the subjection to genital mutilation of young girls.18 These child-specific forms and manifestations of persecution may justify the granting of refugee status. States Parties should therefore give utmost attention to such child-specific forms and manifestations of persecution as well as to gender-based violence in national refugee status-determination procedures. In addition, the assessment of the risk of such serious violations should be conducted in an age- and gender-sensitive manner.19 In particular, the legislation and policies relating to immigration and asylum should recognise the risk of being subjected to harmful practices or being persecuted as a result of such practices as a ground for granting asylum. Consideration should also be given to providing protection to a relative who may be accompanying the child.20 Decisions concerning the deportation of a child should ensure – within a procedure with proper safeguards – that the child will be safe and provided with care and enjoyment of rights.21 In addition, in view of Article 1 para. 2 OAU Refugee Convention of 10 September 1969,22 the definition of a refugee in Article 22 CRC may also cover events that are widespread man-made occurrences which seriously disturb public order, such as natural 14 See CJEU, Judgment of 7 November 2013, Joined Cases C-199/12 to C-201/12 et al., ECLI:EU:C: 2013:720, paras 66 et seq. – Minister voor Immigratie en Asiel/X, Y, Z. 15 See CJEU, Judgment of 2 December 2014, Joined Cases C-148/13 to C-150/13, ECLI:EU:C:2014:2406, paras 64 et seq. – A, B, C. 16 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 361; JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 826. 17 See CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 74. 18 CRC Committee, General Comment No. 6, CRC/GC/2005/5, 2005, para. 74. See also CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.3. 19 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.3; General Comment No. 6, CRC/GC/2005/5, 2005, para. 27. See also CEDAW Committee, General Recommendation No. 32, CEDAW/C/GC/32, 2014, para. 26. 20 See CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.4. See also CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31CRC/C/GC/18, 2014, para. 19. 21 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.8; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, paras 29 and 33. 22 1991 UNTS 45.

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[Children as Refugees]

disasters, drought and famine.23 On the other hand, Article 22 CRC does not address “internally displaced children”.24 In this respect, Article 23 para. 4 ACRWC affords greater protection than Article 22 CRC and the Geneva Refugee Convention which both require that a child be outside his or her country of origin.25 5 Article 22 para. 1 CRC applies to children who are qualified as refugees under national law, as well as those who seek refugee status.26 On the other hand, Article 22 para. 1 CRC applies to children who are to be recognised refugees according to the substantive and procedural rules of international law. Important international conventions in this regard are the 1951 Geneva Refugee Convention and its 1967 Protocol as well as the four 1949 Geneva Conventions with their 1977 Additional Protocols.27 Furthermore, Article 22 para. 1 CRC is to be applied in EU Member States not only to refugees falling under the scope of Article 1A para. 2 of the Geneva Refugee Convention, but also to persons entitled to subsidiary protection, i.e. to persons who face a serious individual threat to life and limb as a result of arbitrary force in an armed conflict.28 The CRC Committee observes that where the requirements for granting refugee status under the Geneva Refugee Convention are not met, unaccompanied children shall benefit from available forms of complementary protection to the extent determined by their protection needs and best interests.29 Against this background, the refugee status of a child can be recognised in three ways under Article 22 CRC. First, the refugee status of a child can be based on membership to a group when a refugee movement reaches such an extent that recognition of each individual as a refugee no longer seems possible.30 Another way is that children will acquire the same refugee status as their parents or legal guardians. 31 Although such a form of recognition is not provided for in any international agreements, in order to preserve the family unit such recognition should be practiced with regard to children.32 Finally, recognition as a refugee can, because of the individual right of the child, be granted on the basis of national or international law, including European Union law.33

23 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 361. Different assessment by JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 825. 24 Critical assessment by E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 18. 25 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 827. See also → Article 22 mn. 3. 26 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 179. 27 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea of 12 August 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 74 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS 609. 28 See the EU Qualification Directive 2011/95/EU, OJ EU 2011, L 337, p. 9, last amended OJ EU 2017, L 167, p. 58. 29 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 77. 30 See (German) Federal Administrative Court, Judgment of 30 October 1984, 9 C 24.84, paras 11 et seq. 31 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 2019, paras 181-188. 32 UNHCR, Refugee Children: Guidelines on Protection and Care, 1994, p. 98. 33 UNHCR, Refugee Children: Guidelines on Protection and Care, 1994, p. 98 et seq.

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The CRC Committee underlines that all asylum-seeking children, including those 6 who are accompanied by or separated from their parents, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection, irrespective of their age.34 However, a child’s claim for refugee status is most likely to be overlooked where the child is accompanied. In these circumstances, the invisibility is one of the key challenges that children face in establishing entitlement to refugee status, since they are often generally subsumed into the claim of their parents.35 The removal of a child without an individualised assessment of the child’s eligibility for international protection offends Article 22 para. 1 CRC.36 On the other hand, in cases where an accompanied child makes an individual claim to be eligible for refugee status, his or her parents or guardians can assist the child in an advisory capacity and, if necessary, take decisions in regard to the child’s best interests. Unaccompanied minors do not enjoy this possibility. Therefore, the United Nations High Commissioner for Refugees (UNHCR) urges all relevant State bodies to employ special sensitivity in this regard.37 In particular, the decision-maker must not only consider the regulations set forth in Article 22 CRC but also the principle of the best interests of the child according to Article 3 CRC. This means that an unaccompanied child who is ineligible for refugee status and thus liable to removal remains entitled to the protections afforded under the CRC while he or she remains in the host State.38 Furthermore, if the removal is contrary to the child’s best interests, there will be a strong presumption against removing the child, subject only to a tight range of considerations that may, in certain circumstances, override the child’s best interests.39

III. State Obligations to Protect and Ensure (Article 22 para. 1 CRC) The State’s obligations to ensure that a child who is seeking refugee status or who 7 is considered a refugee receives appropriate protection and humanitarian assistance in the enjoyment of human rights, as referred to in Article 22 para. 1 CRC, relate first and foremost to the rights set forth in the CRC. The additional reference to other international human rights treaties mainly affects the rights arising from the Geneva Refugee Convention, including its 1967 Protocol. However, other rights of universal human rights instruments are equally to be respected, for instance the right to personal liberty (Article 9 ICCPR) or the protection against expulsion (Article 13 ICCPR). Under Article 24 ICCPR, which specifically addresses the protection of children, the Human Rights Committee regularly expresses concern that unaccompanied migrant children are detained for the purpose of removal and deportation or of identity and age clarification

CRC Committee, General Comment No. 6, CRC/GC/2005/5, 2005, para. 66. See UNHCR, Guidelines on International Protection: Child Asylum Claims under Articles 1A (2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, HCR/GIP/09/08, 2009, para. 2. 36 Rightly so, JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 835-836. 37 UNHCR, Refugee Children: Guidelines on Protection and Care, 1994, p. 99. 38 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 87. 39 See CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 84. Further see JM Pobjoy, The Best Interests of the Child Principle as an Independent Source of International Protection, International Comparative Law Quarterly 64 (2015), p. 327. 34

35

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without respecting the best interests of the child.40 In addition, the rights enshrined in regional human rights treaties, such as those of the ECHR, the ACHR or the African Charter on Human and Peoples’ Rights, must be assured for every refugee child as long as the relevant State is a party to the treaty concerned.41 8 The main conventions specifically addressing humanitarian issues within the meaning of Article 22 para. 1 CRC are the 1949 Geneva Convention IV and the two 1977 Additional Protocols to the Geneva Conventions.42 Therefore, refugee children, unless they directly participate in hostilities or belong as combatants to an armed group, receive all the privileges provided to civilians. In particular, they are protected by Articles 77 and 78 of the First Additional Protocol to the Geneva Conventions. Incidentally, the provisions of the Geneva Conventions and their Additional Protocols can be divided into four categories with the aim of protecting children. The first group is designed to protect all children; the second group protects family reunification and promotes family cohesion; the third category contains measures for evacuation, separation and removal of children; and, finally, the fourth group involves rules for the special protection of unaccompanied minors.43 Included in the first category are, e.g., Articles 23 et seq. of Geneva Convention IV and Article 77 para. 1 of the First Additional Protocol to the Geneva Conventions, according to which children must be treated with respect and be supplied with clothing and food. The provisions of the second group include children’s rights to freedom of religion and to maintain their own culture and tradition as well as the obligations incumbent on States Parties to enable contact between family members (see Articles 32 and 74 of the First Additional Protocol to the Geneva Conventions, Articles 25 et seq. of Geneva Convention IV). In regards to the third category, the provisions of Articles 72 et seq. of the First Additional Protocol to the Geneva Conventions are to be observed. Accordingly, the evacuation and separation of families have to be undertaken, in principle, by the State of origin and not by a third country. The provisions of the fourth category envisage unaccompanied refugee children who have to receive special support through being housed with qualified guardians of the same nationality as the child.44 In any case, unaccompanied minors must be enabled to continue their education, religion and culture (see Article 24 of Geneva Convention IV). 9 Insofar as Article 22 para. 1 CRC obliges the States Parties to ensure that affected children receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the CRC, the article establishes a clear connection to the general principles laid down in Article 2 and Article 3 CRC.45 According to the prohibition of discrimination in Article 2 para. 1 CRC, refugee children must not be treated less favourably than other children, including those of a foreign nationality, because of their status as refugees.46 The reference to Article 3 CRC means that in the proceedings of recognising a child as a refugee, the principle of the child’s best 40 See, e.g., Human Rights Committee, Concluding Observations: Slovakia, CCPR/C/SVK/CO/4, 2016, paras 32-22. For a fuller account see M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mn. 50. 41 For more detail on the Inter-American human rights system regarding children in migration situations see W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 22.15. 42 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 185. 43 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 185 et seq. 44 E Ressler/N Boothby/D Steinbock, Unaccompanied Children, 1988, p. 251. 45 See CRC Committee, Report of the Day of General Discussion on the rights of all children in the context of international migration, 2012, paras 72 et seq. See also S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung – Eine Analyse jüngster gesetzgeberischer und judikativer Entwicklungen, Recht der Jugend und des Bildungswesens 2014, p. 125, at 136. 46 CRC Committee, Report of the Day of General Discussion on the rights of all children in the context of international migration, 2012, para. 73; CMW Committee/CRC Committee, Joint General Comment

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interests must be respected at all times, and a reasonable balance between the child’s best interests on the one hand and an effective asylum policy on the other hand must be present.47 This is true even though Article 22 para. 1 CRC is broad in its wording and leaves the Contracting States discretion with regard to its implementation. The leeway given to the States Parties has been significantly reduced by the CRC Committee’s views and statements.48 The CRC Committee regularly encourages States Parties to ensure that the authorities responsible for children’s rights have a leading role, with clear decision-making power, policies, practices and decisions that affect children in the context of international migration, including in countries of origin, transit, destination and return.49 Integrating best interests determination into the immigration and asylum procedure may, of course, not guarantee an outcome that is consistent with the child’s interest, but it does guarantee procedural fairness. This is the reason why children should generally be exempted from extraordinary procedures in the asylum context. 50 In addition to Articles 2 and 3 CRC, it is Article 32, Article 34, Article 35 and Article 10 37 CRC which have to be given prominent attention in relation to refugee children.51 In particular, children who are not accompanied by an adult are often at risk of exploitation, abduction, sexual assault or other violence, which is why they should receive special protection. If children are accommodated provisionally after their arrival and during the asylum procedure, the guarantees of Article 37 lit. b CRC must be complied with. 52 The detention of children, either in closed refugee camps or immigration centres, either accompanied or unaccompanied, remains a serious concern.53 Moreover, the accommodation of an unaccompanied minor in a standard asylum facility shall be avoided. The actual conditions in such accommodation facilities (noise, lack of space, alcohol and drug abuse, aggressive environment) are diametrically opposed to the best interests and the well-being of children as specified in Article 3 CRC.54 Accommodation in a youth welfare facility or in a foster care placement with child-appropriate care should therefore be provided for by the States Parties.55 Furthermore, the CRC Committee declares that No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 11. 47 CRC, General Comment No. 6, CRC/GC/2005/6, 2005, para. 21; see also C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 183. 48 See H Krieger, Die UN Kinderrechtskonvention und die Handlungsfähigkeit unbegleiteter Minderjähriger im deutschen Asyl- und Ausländerrecht, Recht der Jugend und des Bildungswesens 2012, p. 206, at 210 et seq. Dissenting: Higher Regional Court Karlsruhe, Judgment of 2 December 2010, 2 UF 172/10, paras 22-25; and Judgment of 5 March 2012, 18 UF 274/11, paras 42-45. 49 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 14. 50 See CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, paras 39 et seq. See also C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 437. 51 CRC Committee, Report of the Day of General Discussion on the rights of all children in the context of international migration, 2012, paras 77 et seq.; C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 184. 52 See → Article 37 mn. 21. 53 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 848. See also CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 7 et seq.; CRC Committee, Concluding Observations: Belgium, CRC/C/BEL/CO/5-6, 2019, paras 41 et seq. 54 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 26. See also C Mahler/ P Follmar-Otto, Asylbewerberleistungsgesetz auf dem menschenrechtlichen Prüfstand, Zeitschrift für Ausländerrecht und Ausländerpolitik 2011, p. 378, at 381; C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 438. 55 H Heinhold, in: H Kaufmann/A Riedelsheimer (eds.), Kindeswohl oder Ausgrenzung? Flüchtlingskinder in Deutschland nach der Rücknahme der Vorbehalte, 2010, p. 60, at 68 et seq.; see also FRA, Migration to the EU: Five Persistent Challenges, 2018, p. 14.

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children, either accompanied or unaccompanied, should not be detained for immigration-related purposes only.56 Migrant and refugee children, accompanied by their parents and whose best interests dictate the family unit, shall not be detained together but non-custodial solutions shall be sought for the entire family, such as community-based arrangements.57 11 Moreover, registration, identification and the respect for the personal identity of the refugee child pursuant to Articles 7 and 8 CRC are relevant not only with regard to the personal development of the unaccompanied or separated child but also with regard to facilitating family reunification within the meaning of Articles 9 and 10 CRC. 58 Furthermore, refugee children in a host country must be able to acquire, including through naturalisation, an effective nationality in cases where the child would otherwise be stateless.59 In the absence of documents, the child’s age must be determined firstly by way of visual inspection, but also, in a second line, via medical, psychological and child-sensitive examination,60 for which the child’s consent or the consent of his or her guardian is necessary. In contrast, mere radiological examinations are considered harmful to health by the CRC Committee; in addition, their results are not reliable.61 In the absence of identity documents or other appropriate evidence, to make an informed estimate of age, States Parties should undertake a comprehensive and multidisciplinary assessment of the child’s physical and psychological development, conducted by specialist paediatricians or equivalent professionals. Such assessments should be carried out in a prompt, child-friendly, gender-sensitive and culturally appropriate manner, including interviews of children and, as appropriate, accompanying adults, in a language the child understands.62 In case of doubt or in the event of remaining uncertainty, the person concerned should be accorded the benefit of the doubt such that if there is a possibility that the individual is a child, she or he should be considered and treated as a minor.63 56 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 10; V Chetail, International Migration Law, 2019, p. 136. See also → Article 37 mns. 14 et seq. 57 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 11; V Chetail, International Migration Law, 2019, p. 137. 58 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 842 et seq. See also → Article 10 mns. 2, 10. 59 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 366-368. Similar assessment by JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 844. See also → Article 7 mns. 11 et seq. 60 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 184; B Parusel, Unbegleitete minderjährige Flüchtlinge – Aufnahme in Deutschland und Perspektiven für die EU, Zeitschrift für Ausländerrecht und Ausländerpolitik 2010, p. 233, at 238. 61 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 68 b, 69 b. Concurring view by L Gundelach, Die Rechtsprechung zur medizinischen Altersfeststellung – eine Anmerkung, Neue Zeitschrift für Verwaltungsrecht 2018, p. 1849, at 1850; K Neundorf, Die Altersbestimmung bei unbegleiteten Minderjährigen – rechtliche Grundlagen und Debattenüberblick, Zeitschrift für Ausländerrecht und Ausländerpolitik 2018, p. 238, at 240, 245; J Gelhaar, Die Praxis der Alterseinschätzung von unbegleiteten minderjährigen Flüchtlingen, Kritische Justiz 52 (2018), p. 179, at 181 et seq. 62 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 31 (i); N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.4. See also CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 14 et seq. Further see → Article 1 mns. 10 et seq. 63 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.7; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.7. But see also the individual dissenting opinion of Committee member M Otani to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex II, para. 5; and the individual dissenting opinion of Committee member H Kotrane, ibid., Annex III, paras 7 et seq. For more detail see → Article 1 mn. 12.

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Overall, the purpose of the initial assessment process is to direct any further actions relating to residence and other status of the child in the territory of the host State. 64 The CRC Committee regularly stresses that States Parties must adopt a comprehen- 12 sive legislative framework to ensure refugee children and children seeking refugee status the rights guaranteed in Article 22 CRC and in the Convention more generally.65 This also includes the right to education (Articles 28, 29 CRC). The CRC Committee has repeatedly called on States Parties to ensure that refugee children and children seeking refugee status have full access to education.66 States Parties shall provide special language programmes for refugee or asylum-seeking children to prepare them for full-entry into the general educational system of the host country.67 The CRC Committee also calls upon States Parties to ensure that refugee children and children seeking refugee status have full access to health care as enshrined in Article 24 CRC.68 This may include rehabilitation services where children have been victims of any form of exploitation or abuse or armed conflict.69 These measures must be implemented notwithstanding the availability of personal or financial resources. In circumstances where a State has resource constraints, such as in the case of a mass influx of displaced persons, the State must accept and facilitate acceptance offered by international agencies, such as UNICEF, UNHCR and the WHO.70 Furthermore, the obligation to ensure appropriate protection and humanitarian assistance extend to the nature of protection which must be tailored to the circumstances of children. States Parties are thus called upon to use refugee and migrant children’s personal data, in particular biometric data, only for child protection purposes, with strict enforcement of appropriate rules on collection, use and retention of, and access to data. The CRC Committee urges due diligence regarding safeguards in the development and implementation of data systems, and in the sharing of data on refugee and migrant children between authorities and/or countries.71 On the basis of its clear wording, Article 22 para. 1 CRC applies to all children 13 seeking refugee status, independent of whether they are accompanied by their parents or legal guardians or whether they are unaccompanied or separated.72 Yet, above all, unaccompanied refugee children require special protection as a group. The CRC Committee highlights this fact in several instances.73 In the view of the CRC Committee, unaccompanied minors are those children below the age of 18 years who are separated from their parents and other relatives and are not cared for by an adult who is responsible by

CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 32. See CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 13 et seq. See also CRC Committee, Concluding Observations: Guinea, CRC/C/GIN/CO/2, 2013, para. 76; Andorra, CRC/C/AND/CO/2, 2012, para. 44; Ecuador, CRC/C/ECU/CO4, 2010, para. 67; Algeria, CRC/C/DZA/CO/3-4, 2012, para. 66. 66 See, e.g., CRC Committee, Concluding Observations: Afghanistan, CRC/C/AFG/CO/1, 2011, para. 63; Kuwait, CRC/C/KWT/CO/2, 2013, para. 69; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 77 a. 67 CRC Committee, Concluding Observations: Czech Republic, CRC/C/CZE/CO/3-4, 2011, para. 66. 68 CRC Committee, Concluding Observations: Cyprus, CRC/C/CYP/CO/3-4, 2012, para. 47 c; Israel, CRC/C/ISR/CO/2-4, 2013, para. 70 a; Kuwait, CRC/C/KWT/CO/2, 2013, para. 69. 69 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 48-49. Further see → Article 39 mn. 11. 70 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 16, 49. See also JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 836, 847. 71 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 17. 72 See → Article 22 mn. 1. 73 See, e.g., CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 10 et seq.; Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 26, 68 et seq.; Malta, CRC/C/MLT/CO/3-6, 2019, paras 41-42. 64

65

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[Children as Refugees]

law or custom for the care of the child.74 Children will therefore also be considered as unaccompanied if they are accompanied by adult family members who are, however, not responsible for them in accordance with national laws, regulations and public order.75 Interestingly, European Union law also refers to these principles.76 14 In respect to unaccompanied refugee children, States Parties must take special measures as required by Article 22 para. 1 CRC. Within these measures, is first and foremost the duty to create a well-functioning asylum system, with particular respect to the treatment of unaccompanied children, and to provide administrative opportunities to effectively implement these laws, if necessary with support from the UNHCR. 77 In addition, unaccompanied refugee children must be given the opportunity to go through an asylum procedure or an equivalent procedure that guarantees international human rights protections. Requirements in domestic law which bind the right to seek international protection on the legal age of majority or some other age threshold before being allowed to apply for asylum are strongly criticised by the CRC Committee.78 This is especially true if, during the identification or registration procedure, circumstantial evidence shows that the child’s fear of persecution is well-founded.79 In this regard, a child should not automatically be referred to the formal asylum procedure. Rather, the child must be protected by other mechanisms relating to the protection of children, such as through measures relating to child welfare.80 The CRC Committee stresses that States Parties should ensure that children are identified promptly in border controls and other migration-control procedures and that they should develop and put into practice a child’s best interests determination procedure aimed at identifying and applying comprehensive, secure and sustainable solutions which should be discussed with the child in a language that he or she understands (or with the help of a translator) and in a child-friendly and sensitive manner.81 Thus, the French practice of failing to register children in Calais for asylum, with the consequence that they could not benefit from the EU Dublin Regulation’s family reunification provisions, was not in conformity with Article 22 CRC.82 15 Moreover, States Parties should appoint a qualified legal representative for all children, with or without parental care, as well as a trained and independent legal guardian for unaccompanied and separated children, as soon as possible on arrival and free of charge.83 In particular, unaccompanied children seeking asylum should swiftly be CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 7. CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 8. 76 See Article 2 lit. b of the Receptions Conditions Directive 2013/33/EU (OJ EU 2013, L 180, p. 96) and Article 2 lit. l of the Qualification Directive 2011/95/EU (OJ EU 2011, L 337, p. 9, last amended OJ EU 2017, L 167, p. 58). 77 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 64. 78 See, e.g., CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 81. 79 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 66. 80 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 67. See also the European Parliament, Report on the situation of unaccompanied minors in the EU, 2012/2263(INI), of 26 August 2013. 81 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, paras 32 h and 32 i, 35. 82 See Upper Tribunal Immigration and Asylum Chamber, ZAT et al. v. Secretary of State for the Home Department, 2015, JR/15401/2015 and JR/15405/2015. Further see C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 42, at 430. 83 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 123-124; R.K. v. Spain, Views adopted on 18 September 2019, CRC/C/81/D/27/2017, para. 9.8.; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 36. Similar assessment by FRA, Guardianship systems for children deprived of parental care in the European Union, 2018, p. 4. 74 75

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provided with a qualified guardian to ensure that the children’s views are taken into consideration and that they have access to adequate reception, health care and education services.84 This requires that the guardianship system for unaccompanied children has adequate human, technical and financial resources at hand, and is sufficiently independent.85 Guardians are also essential in safeguarding children’s procedural rights. In any case, accompanied refugee children should be heard independently of their parents, and their individual circumstances should be included in the consideration of the case.86 This means that even in cases where the parent is refused refugee status, the child can be at risk of harm. In these cases, the claims of the child warrant separate evaluations. Here, the wording of Article 22 para. 1 CRC is instructive since it determines that the child, who is seeking refugee status, whether unaccompanied or accompanied by his or her parents, must receive appropriate protection and shall, therefore, not merely be subsumed into the claim of his or her parents.87 If determined that is in the best interests of the child to be returned, an individual 16 plan should be prepared, together with the child where possible, for his or her sustainable reintegration. The CRC Committee stresses that countries of origin, transit, destination and return should develop comprehensive and rights-based frameworks with dedicated resources for the implementation of such policies.88 In addition, States Parties shall ensure that any decision to return a child to his or her country of origin is based on evidentiary considerations on a case-by-case basis, and pursuant to a procedure with appropriate due process safeguards that also ensure that the child, upon return, will be safe and provided with proper care and enjoyment of rights.89 Against this backdrop, the CRC Committee is seriously concerned about the changes to the Hungarian asylum law, which allow for the immediate expulsion of children and their families who are staying irregularly in the State Party and have not had the opportunity to apply for asylum as well as to the holding of children above the age of 14 years in transit zones without adequate nutrition and access to education.90 Because of the particular vulnerability of unaccompanied minors, the CRC Com- 17 mittee calls for a number of procedural precautions throughout the refugee status determination process.91 Accordingly, every child should be represented in the asylum procedure by an adult who is familiar with the background of the child and who is professionally competent. Every child should also receive a qualified legal counsel, free of charge, for the asylum procedure.92 On grounds of procedure expedience, applications 84 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 16-17. See also FRA, Migration to the EU: Five Persistent Challenges, 2018, p. 15. 85 CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/3-6, 2019, para. 41; Australia, CRC/C/AUS/CO/5-6, 2019, para. 44. 86 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 37. 87 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 430. 88 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 32 k. 89 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 33. See also CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 86. 90 CRC Committee, Concluding Observations: Hungary, CRC/C/HUN/CO/6, 2020, paras 38-39. 91 In detail regarding the following: CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 68-73. See also CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 32. 92 Clearly so: CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 69; CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the

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Art. 22

[Children as Refugees]

for determination of refugee status made by unaccompanied or separated minors should be granted priority before other applications. Before the final decision, the competent authority shall discuss it personally with the child in the presence of a supervisor or counsel, and, if necessary, using a suitable translator. The views and opinions of the child matter also in the context of asylum proceedings.93 Although a child’s views may not be determinative, they represent a critical ingredient in undertaking the best interests assessment.94 Accordingly, the guarantees of Article 12 CRC apply to all immigrant and asylum-seeking children unless and until it is established that they are incapable of forming their own views.95 During the asylum proceedings the special situation of unaccompanied refugee children including the personal history, culture and background of the child are to be taken into account. The immigration hearing should be adapted to the needs of children which range from the layout of hearing rooms to child-friendly questioning.96 Furthermore, giving due weight to the views of the child, as demanded for by Article 12 CRC, has significant implications for the credibility assessments in the asylum context. Children cannot be expected to provide adult-like accounts of their experiences for a variety of reasons (trauma, parental instructions, lack of education, fear of adults, of State authorities or of reprisals, etc).97 Thus, what might constitute a lie in the case of an adult may not necessarily be a lie in the case of a child.98 Throughout the refugee status determination process, the child should be afforded a liberal benefit of the doubt.99 The child concerned should also be given the opportunity to apply for a review of the decisions taken. It is therefore advisable to exempt minors by law from the airport procedure and border controls procedure where these requirements are regularly not met.100 When it comes to large waves of refugees and a massive influx, in which an individual decision on refugee status is not possible, the States Parties should recognise the refugee status of all members of the group,101 so that at least the unaccompanied minors within that group receive refugee status. 18 The CRC Committee further considers that States Parties should appoint a qualified legal representative, with the necessary linguistic skills, for all young foreign persons claiming to be minors, as soon as possible on arrival and free of charge.102 The CRC Committee is of the view that the provision of a legal advisor for such persons during the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 17(f). Dissenting opinion by the (German) Federal Court of Justice, Judgments of 29 May 2013, XII ZB 530/11, para. 21, and XII ZB 124/12, para. 22. 93 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 20. See also S Rap, in: M Klaassen/S Rap/P Rodrigues/T Liefaard (eds.), Safeguarding Children’s Rights in Immigration Law, 2020, p. 17, at 23 et seq. 94 See → Article 12 mn. 36. 95 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 434; JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 841-842. See also → Article 12 mn. 36. 96 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 435. See also → Article 12 mn. 26. 97 See S Rap, in: M Klaassen/S Rap/P Rodrigues/T Liefaard (eds.), Safeguarding Children’s Rights in Immigration Law, 2020, p. 17, at 35-36. 98 UNHCR, Guidelines on International Protection: Child Asylum Claims under Articles 1A (2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, HCR/GIP/09/08, 2009, para. 72. 99 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 831. 100 See CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.43, 1995, paras 19, 33. See also → Article 3 mn. 21. 101 See → Article 22 mn. 5. 102 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.8. But see also the individual dissenting opinion of Committee member H Kotrane to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex III, para. 12.

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[Children as Refugees]

age-determination process is equivalent to giving them the benefit of the doubt and that it is an essential guarantee of respect for their best interests and their right to be heard. Failure to do so imply a violation of the Convention, as the age-determination process is the starting point for the application of the CRC. The absence of a timely representation of the child can result in a substantial injustice.103 Furthermore, the children’s right to express their views should be seen as an integral part of immigration and asylum proceedings. Information should be provided in the child’s own language in a timely, child-sensitive and age-appropriate manner in order to make his or her voice heard and to be given due weight in the proceedings.104 Finally, the CRC Committee insists in that people who work with unaccompanied 19 refugee children or decide on their future should receive adequate training.105 This is especially true for legal advisers, supervisors, caregivers and translators. The training shall involve knowledge of the essential principles of the CRC, knowledge about the origins of the children concerned, the development of adequate communication skills, knowledge of child development and psychology, cultural sensitivity and intercultural communication. Also, the employees of the competent authorities should be sufficiently trained in respect to the child-friendly application of international and national refugee law.106 In that regard, the CRC Committee also requires the States Parties to increase the focus upon the situation of unaccompanied refugee children when drafting their national reports and to provide more detailed information.107

IV. International Cooperation (Article 22 para. 2 CRC) On the one hand, Article 22 para. 2 CRC contains provisions to achieve realisation of 20 the obligations imposed under Article 22 para. 1 CRC. Although the duty to cooperate with certain organisations to achieve this aim is mandatory (“shall provide”), the level of cooperation is left to the discretion of States.108 On the other hand, Article 22 para. 2 CRC contains provisions for tracing a refugee child’s parents or other members of his or her family, and for alternative care arrangements where no family member can be located. Whereas Article 22 para. 1 CRC applies both to refugee children and to children seeking refugee status, Article 22 para. 2 CRC applies only in principle to the same beneficiaries. With regard to the requirement to cooperate in respect of tracing and family reunification, Article 22 para. 2 CRC applies first and foremost to refugee children.109 In this respect, the obligation of States Parties under Article 22 para. 2 CRC to engage in international cooperation is of particular importance for unaccompanied refugee children. The obligation to provide cooperation in the tracing and reunification of refugee families applies to all refugee children. But unaccompanied or separated children require additional support because they have no adult who can represent or 103 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.8. 104 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 124; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 35. 105 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 95-97. 106 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 74-75. 107 See CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 98-100. 108 For a fuller – and critical – account see JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 850-851. 109 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 824, 850.

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assist them in the asylum procedure.110 Furthermore, unaccompanied refugee children have to receive both psychological and physical care. If the child’s family can be located the best interests of the child will generally be served by reuniting the child with his or her family.111 Yet, the family unity is not absolute and must not justify a child’s removal to the country of origin when there is a reasonable risk that such a return would lead to the violation of fundamental human rights of the child.112 21 In order to achieve effective protection of unaccompanied refugee children, it is necessary to establish a lasting solution for the child.113 Here, the necessary extent of protection in individual cases as well as the views of the child shall be taken into account. The search for a lasting solution must begin with an examination of the possibility of family reunification. The tracing of family members is an essential part of the search and shall be continued throughout the asylum procedure. The primary goal of family reunification from the perspective of Article 22 para. 2 CRC also follows from the obligations laid down in Article 9 and Article 10 CRC.114 If a family reunification is not possible in the country of origin of the child, the precautions of Articles 9 and 10 CRC are to be observed.115 22 If the parents of an unaccompanied minor cannot be located, the child concerned is entitled under Article 22 para. 2, sentence 2 CRC to the same protection as any other child who is permanently or temporarily, for any reason, deprived of their family environment. In this regard, Article 22 para. 2 CRC refers to Article 20 CRC according to which children who are cared for temporarily or permanently outside their families enjoy special protection.116 In particular in the supervision of unaccompanied refugee children, the child’s best interests and his or her ethnic, religious, cultural and linguistic background must be taken into account, as required by Article 20 para. 3, sentence 2 CRC. Therefore, it is problematic when unaccompanied refugee children are accommodated in refugee accommodation facilities where special child-care facilities are not guaranteed.117 23 Among the organisations which support the States Parties in regards to their obligations flowing from Article 22 para. 2 CRC, the main bodies are the UNHCR and UNICEF.118 But also, the International Committee of the Red Cross and numerous NGOs dealing with the discovery of family members and with the direct supply of aid to refugee flows may be helpful and supportive in safeguarding the child’s best interests in the asylum proceedings.119 The UNHCR has produced guidelines for the review of asylum applications from minors, in which States are encouraged to provide

C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 188. JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 853. 112 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 82. 113 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 79 et seq. 114 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 81. 115 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 83. 116 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 184; H Cremer, Der Anspruch des unbegleiteten Kindes auf Betreuung und Unterbringung nach Art. 20 des Übereinkommens über die Rechte des Kindes, 2006, p. 114 et seq. 117 H Cremer, Der Anspruch des unbegleiteten Kindes auf Betreuung und Unterbringung nach Art. 20 des Übereinkommens über die Rechte des Kindes, 2006, p. 68 et seq.; C Mahler/P Follmar-Otto, Asylbewerberleistungsgesetz auf dem menschenrechtlichen Prüfstand, Zeitschrift für Ausländerrecht und Ausländerpolitik 2011, p. 378, at 381. See also → Article 20 mn. 2. 118 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 6, 16. 119 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 190. 110

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children with supervisors and child care professionals who speak the same language as the children.120 The CRC Committee strongly endorses this view.121

V. Embedding of Article 22 CRC into the System of International Human Rights Protection International law has long recognised that refugee children are entitled to special 24 care and protection. The 1924 Geneva Declaration of the Rights of the Child arose out of a concern about the particular problems faced by children during and subsequent to war.122 A similar theme runs through the 1949 Geneva Conventions and its 1977 Additional Protocols and through the 1951 Geneva Refugee Convention and its 1967 Protocol. However, none of these or other human rights treaties contains a provision similar to that of Article 22 CRC.123 Therefore, the article is a critical milestone in securing special protection measures for refugee children and children seeking refugee status.124 The most important international treaty relating to refugees is the 1951 Geneva 25 Refugee Convention and its 1967 Additional Protocol. However, as well as all the other human rights conventions, including the ECHR and the CRC, the Geneva Refugee Convention does not establish a claim to territorial asylum.125 The Geneva Refugee Convention governs only the legal status during asylum, but does not establish a right to asylum and thus builds its guarantees on a successful escape of the person for his or her home country.126 The prohibition of refoulement (non-refoulement principle), which is standardised in Article 33 of the Geneva Refugee Convention, also refers only to the de facto (illegal) entry and stipulates that a refugee cannot be rejected back to the State in which he or she is seriously threatened or prosecuted. To date, it is disputed whether the prohibition of rejection ultimately gives the asylum seeker an implicit admission claim.127 In any event, the ECtHR has denied the Italian authorities the possibility of intercepting and returning seaborne refugees off the coast.128 Also, the CRC Committee stresses that States Parties should respect non-refoulement obligations deriving from international human rights law.129 The principle of non-refoulement prohibits States from removing individuals, regardless of their status, from their jurisdiction when they would 120 See, e.g., UNHCR, Refugee Children, Guidelines on Protection and Care, 1994; Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, 1997. 121 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 36. 122 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 819. Further see → Introduction mn. 12. 123 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 368. 124 JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at 821-822. 125 K Hailbronner, Asyl- und Ausländerrecht, 4th edn. 2016, mns. 152, 1278; C Smyth, in: U Kilkelly/ T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 424. 126 S Schmahl/F Jung, Die Genfer Flüchtlingskonvention, Neue Zeitschrift für Verwaltungsrecht-Extra 2018, p. 1, at 2; A Nußberger, Flüchtlingsschicksale zwischen Völkerrecht und Politik, Neue Zeitschrift für Verwaltungsrecht 2016, p. 815; at 818. 127 For more detail see K Hailbronner, Asyl- und Ausländerrecht, 4 th edn. 2016, mns. 152, 1278 et seq.; A Nußberger, Flüchtlingsschicksale zwischen Völkerrecht und Politik, Neue Zeitschrift für Verwaltungsrecht 2016, p. 815; at 816 et seq. 128 ECtHR, Judgment of 23 February 2012, No. 27765/09, paras 121 et seq. – Hirsi Jamaa v. Italy. 129 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 45.

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be at serious risk of irreparable harm upon return, including persecution, torture or further gross violations of human rights. Against this background, the CRC Committee regularly points out that States shall not reject a child at a border or return him or her to a country where there are substantial grounds for believing that the child is at real risk of irreparable harm, such as, but by no means limited to, those contemplated under Article 6 and 37 CRC.130 Moreover, in the opinion of the CRC Committee such non-refoulement obligations apply irrespective of whether serious violations of those rights originate from State or non-State actors or whether such violations are directly intended or are the indirect consequence of States Parties’ action or inaction. 131 In sum, the principle of non-refoulement is regarded to be a fundamental principle of the human rights of children in the context of migration and flight.132 26 The Office of the UNHCR, created by the UN General Assembly in 1950, 133 mandated a working group with special focus on refugee children in 1986.134 Following the adoption of the CRC in 1989, the UNHCR began to promote the CRC as the appropriate framework for conceptualising the special protection needs of refugee children. With regard to the responsibilities of States Parties to all refugee children within their borders, the UNHCR published in 1993 a policy report on refugee children135 and issued practical guidelines for the protection of refugee children in the following year.136 In 1997, the UNHCR published also guidelines on policies and procedures for handling asylum-seeking unaccompanied minors,137 and in 2009, it enacted guidelines on asylum applications of children.138 In 2016 and 2018 respectively, the UNHCR published two documents entitled “Resettlement of Children and Adolescents at Risk” and “Guidelines on Assessing and Determining the Best Interests of the Child”. All these documents build on the CRC as a whole, since it provides an important legal and normative framework for the protection of refugee children by following a rights-based approach, which recognises children as active subjects of rights.139 27 For around one decade, also the European Union is active in respecting and protecting the rights of refugee children and children seeking refugee status. In this context, it is noteworthy that the European Union grants subsidiary protection to persons who are not refugees within the meaning of the Geneva Refugee Convention but are nonetheless at risk of facing serious harm, defined as risks of death penalty, torture and inhuman or degrading treatment or punishment, and indiscriminate violence in armed conflict.140 Hence, EU law goes significantly beyond the refugee status granted by the 1951 Geneva Refugee Convention. Where a migrant is found to be a refugee or beneficiary of 130 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 27; CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 46. 131 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 46. 132 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 22.10. 133 See UN General Assembly Resolution 428 (V), A/RES/428(V), 14 December 1950. 134 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 365. 135 UNHCR, Policy on Refugee Children, 1993, EC/SCP/82, para. 6. 136 UNHCR, Refugee Children, Guidelines on Protection and Care, 1994. 137 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, 1997. 138 UNCHR, Guidelines on International Protection: Child Asylum Claims under Article 1A(2) and 1F of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, HCR/GIP/09/08, 2009. 139 For a fuller account see JM Pobjoy, Article 22, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 818, at823-824. 140 See Articles 2 and 15 of the EU Qualification Directive 2011/95/EU, OJ EU 2011, L 337, p. 9, last amended OJ EU 2017, L 167, p. 58.

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subsidiary protection in the EU, he or she acquires an internationally recognised status which is based on, but exceeds, the right of non-refoulement in the sense that the person is not only non-returnable but is entitled to residency in the European Union and to civil and socioeconomic rights.141 With regard to refugee children or children seeking refugee status in the European Union, the EU Commission already presented an action plan in 2010 for dealing with unaccompanied minors,142 which was complemented later with a European Parliament’s report on the situation of unaccompanied minors in the European Union in 2013.143 In both documents, the child’s best interests and the human rights of refugee children in the asylum procedure and with regard to adequate accommodation, care facilities and search for family members are given the utmost consideration. These efforts and initiatives led in 2013 to the adoption of new child-friendly regulations in EU secondary legislation, such as the Dublin III Regulation 604/2013,144 the Asylum Procedures Directive 2013/32/EU 145 and the Reception Conditions Directive 2013/33/EU.146 Of course, several EU directives had been issued at former times, which already con- 28 cerned the rights of unaccompanied refugee minors. Particularly noteworthy here is Directive 2001/55/EC of 20 July 2001,147 whose Article 14 guaranteed the right of minors to education and whose Article 16 standardised representation and accommodation of unaccompanied minors. Articles 18 and 19 of former Directive 2003/9/EC of 27 January 2003148 concerned the best interests of, and regulated the accommodation of unaccompanied refugee children. Also, former Directive 2004/83/EC of 29 April 2004 149 dealt with unaccompanied refugee minors (see Article 2 lit. i of the Directive) and provided for specific guarantees in Article 20 paras 3 and 5, Article 27 and Article 30. Finally, former Directive 2005/85/EC 150 contained provisions protecting refugee children; in particular, Article 17 of the Directive provided procedural safeguards for unaccompanied minors. Accordingly, Member States had to take measures already many years ago to ensure that a legal counsel was appointed who represented or supported the unaccompanied minor in asylum proceedings. Furthermore, certain minimum requirements were to be ensured in case of a medical examination to determine the age of an unaccompanied minor. In the meantime, these standards and requirements have been further refined, as can 29 be seen in Article 6 para. 2 of the Dublin III Regulation 604/2013, Article 25 para. 1 of the Asylum Procedures Directive 2013/32/EU and Article 24 para. 1, sentence 1 of the Receptions Conditions Directive 2013/33/EU. With regard to the best interests of the child, it should be noted that the jurisdiction rules for unaccompanied minors in Article 6 of the Dublin III Regulation 604/2013 have been assessed by the European Union and national courts as individual guarantees, with the result that competing asylum applications of unaccompanied minors are to be handled by those State authorities 141 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 426. See also CJEU, C-391/16 et al., ECLI:EU:C:2019:403, paras 74 et seq. – M, X and X. 142 European Commission, Communication on an Action Plan on Unaccompanied Minors, COM (2010) 213 final. 143 European Parliament, Report on the situation of unaccompanied minors in the EU, 2012/2263(INI), of 26 August 2013. 144 Regulation 604/2013/EU, OJ EU 2013 No. L 180, p. 31, last amended OJ EU 2017, L 49, p. 50. 145 Directive 2013/32/EU, OJ EU 2013, No. L 180, p. 60. 146 Directive 2013/33/EU, OJ EU 2013, No. L 180, p. 96. 147 Directive 2001/55/EC, OJ EC 2001, No. L 212, p. 12. 148 Directive 2003/9/EC, OJ EU 2003, No. L 31, p. 18. 149 Directive 2004/83/EC, OJ EU 2004, No. L 304, p. 12. 150 Directive 2005/85/EC, OJ EU 2005, No. L 326, p. 13.

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where the minor is resident.151 It is also noteworthy that the Receptions Conditions Directive 2013/33/EU in particular addresses unaccompanied minors. Under Article 17, read in conjunction with Article 21 of the Directive, Member States must ensure that material reception conditions are available to unaccompanied minors when they make their application for international protection and that the measures adopted for those purposes provide an adequate standard of living, which guarantees their subsistence and protects their physical and mental health. However, in cases where an unaccompanied minor seriously infringes the rules of the accommodation centres, the Member States may determine appropriate sanctions.152 Yet, these sanctions must not consist in the withdrawal, even temporary, of material reception conditions relating to housing, food or clothing, in so far as it would have the effect of depriving the minor of the possibility of meeting his or her most basic needs.153 In the case of an unaccompanied minor, those sanctions must be determined – in the light of Article 24 of the EU Charter of Fundamental Rights – by taking particular account of the best interests of the child.154 30 The provisions of the EU secondary legislation are flanked by the requirements that the ECtHR places on the protection of refugee children. Although Article 6 ECHR does not apply to asylum procedures,155 Article 5 para. 1, sentence 2 lit. f ECHR arises strict requirements upon States to comply with child-friendly standards in the accommodation of unaccompanied refugee children.156 These conditions may also be invoked in connection with Article 13 ECHR.157 Immigration detention and detention for deportation are to be avoided for children, whether accompanied or not, since they are extremely vulnerable and have specific needs.158 With recourse to Article 22 CRC, the ECtHR underlines that it is the child’s situation of extreme vulnerability which is the decisive factor and which has to take precedence over considerations relating to his or her status of illegal immigrant.159 Thus, the Court has found a breach of Article 3 ECHR in cases where children had been detained for periods in between 32 hours and four months in detention facilities not adapted for minors.160 Also, situations where an unaccompanied foreign minor is fully left to his or her own devices161 or who spends several months in an environment totally unsuited to his or her status as a child, whether in terms of safety, housing, hygiene or access to food and care, and in unacceptably precarious conditions in view of his or her young age constitute degrading treatment and thus a breach of the 151

al.

CJEU, Judgment of 6 June 2013, Case C-648/11, ECLI:EU:C:2013:367, paras 49 et seq., 57 – MA et

CJEU, Judgment of 12 November 2019, C-233/18, ECLI:EU:C:2019:956, paras 40 et seq. – Haqbin. CJEU, Judgment of 12 November 2019, C-233/18, ECLI:EU:C:2019:956, paras 47, 51 – Haqbin. 154 CJEU, Judgment of 12 November 2019, C-233/18, ECLI:EU:C:2019:956, paras 54-56 – Haqbin. 155 ECtHR, Judgment of 5 October 2000, No. 39652/98, para. 40 – Maaouia v. France. 156 ECtHR, Judgment of 12 October 2006, No. 13178/03, paras 50 et seq. – Mubilanzila Mayeka v. Belgium. See also → Article 20 mn. 20. 157 ECtHR, Judgment of 5 April 2011, No. 8687/08, paras 52 et seq. – Rahimi v. Greece. 158 ECtHR, Judgment of 22 November 2016, Nos. 25794/13 and 28151/13, para. 103 – Abdullahi Elmi and Aweys Abubakar v. Malta; Judgment of 7 December 2017, No. 8138/16, para. 79 – S.F. and Other v. Bulgaria. 159 ECtHR, Judgment of 19 January 2012, Nos 39472/07 and 39472/07, para. 92 et seq. – Popov v. France. See also ECtHR, Judgment of 10 April 2018, No. 75157/14, para. 78 – Bistieva v. Poland; Judgment of 24 May 2018, No. 68862/13, para. 44 – N.T.P. and Others v. France; Judgment of 28 February 2019, No. 12267/16, para. 74 – Khan v. France. 160 ECtHR, Judgment of 19 January 2010, No. 41442/07, paras 57 et seq. – Muskhadzhiyeva and Others v. Belgium; Judgment of 13 December 2011, No. 15297/09, paras 64 et seq. – Kanagaratnam v. Belgium; Judgment of 19 January 2012, Nos 39472/07 and 39472/07, para. 92 et seq. – Popov v. France; Judgment of 12 July 2016, No. 76491/14, paras 36 et seq. – R.C. and V.C. v. France; Judgment of 7 December 2017, No. 8138/16, paras 84 et seq. – S.F. and Other v. Bulgaria. 161 ECtHR, Judgment of 5 April 2011, No. 8687/08, paras 87 et seq. – Rahimi v. Greece. 152

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positive obligations imposed on the Contracting States under Article 3 ECHR.162 The transfer of (small) children and their families violates Article 3 ECHR insofar as the authorities of the country of destination have no individual and concrete guarantee with regard to the maintenance of family unity and child-friendly accommodation in the State of origin. Accordingly, reception arrangements must keep the family together unless it is clearly and convincingly demonstrated that it is not in the best interests of the child to be accommodated with his or her parents.163 Failure to do so may constitute a violation of the State’s positive obligations under the prohibition of inhuman or degrading treatment.164 This requirement is not least based on reference to Article 22 CRC. 165 Finally, it is to be recalled that immigration detention of migrant children, even for short periods or for purposes of age-assessment is prohibited by international law and that States should instead use alternative measures.166 States should generally prohibit the practice of depriving children of liberty or detaining them in facilities for adults.167 Child protection services should be informed immediately to enable them to ascertain the child’s protection needs.168

Article 23 [Care of Children with Disabilities] 1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. 2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child. 3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. 4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including ECtHR, Judgment of 28 February 2019, No. 12267/16, paras 92 et seq. – Khan v. France. C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 443. 164 ECtHR, Judgment of 4 November 2014, No. 29217/12, para. 122 – Tarakhel v. Switzerland. 165 See ECtHR, Judgment of 4 November 2014, No. 29217/12, paras 119 et seq. – Tarakhel v. Switzerland. Similarly, (German) Federal Constitutional Court, Judgment of 17 September 2014, 2 BvR 1795/14, para. 14. 166 See FRA, Migration to the EU: Five Persistent Challenges, 2018, p. 14, 16. See also C Pasiourtidou, in: M Klaassen/S Rap/P Rodrigues/T Liefaard (eds.), Safeguarding Children’s Rights in Immigration Law, 2020, p.133, at 148 et seq., 157. 167 ECtHR, Judgment of 4 November 2014, No. 29217/12, para. 119 – Tarakhel v. Switzerland. 168 ECtHR, Judgment of 22 November 2016, Nos. 25794/2013 and 28151/2013 – Abdullahi Elmi and Aweys Abubakar v. Malta. 162

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dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Dignity and Entitlement of Children with Disabilities (Article 23 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Right to Special Care and Assistance (Article 23 para. 2, para. 3 CRC) . . . . . . IV. International Cooperation (Article 23 para. 4 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . V. Embedding of Article 23 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 9 18 19

I. Generalities Article 23 CRC challenges the traditional discrimination of children with disabilities and calls upon States Parties to reverse the negative practices that have long characterised the lived experiences of exclusion and segregation of children with disabilities. Article 23 CRC contains fundamental rules with regard to children with disabilities. The core demand of this provision is to include children into society, to view them as genuine rights-holders and to secure that they may effectively enjoy their rights. 1 While Article 23 para. 1 CRC describes the overarching principles and objectives of the provision, paras 2 and 3 establish rights which allow the achievement of these objectives.2 Article 23 para. 4 CRC supplements these aspects through the requirement of international cooperation, in particular in regard to information exchange relative to preventive health care of children with disabilities. Article 23 CRC is unique, and until the adoption of the International Convention on the Rights of Persons with Disabilities (ICRPD) in 2006, was the only international normative standard providing substantive rights to any persons with disabilities, child or adult.3 2 Although Article 23 CRC creates distinct rights for children with disabilities, this does not mean that children with disabilities are protected solely by this article. Rather, it follows from Article 2 para. 1 CRC that all provisions of the CRC apply to all children, including children with disabilities.4 This universal application of the Convention to all children, including those with disabilities, is also clearly expressed by the CRC Committee. In its General Comment No. 9 (2006) on the rights of children with disabilities, the CRC Committee does not focus its remarks on Article 23 CRC solely, but stresses the need to interpret all norms of the Convention in favour of children with disabilities.5 Indeed, children with disabilities are entitled to all the rights under the Convention. This approach aims to counter the situation of double endangerment, multiple jeopardy and intersectional discrimination that children with disabilities are regularly exposed to: on the one hand, because they are children, on the other hand, because they live with a disability.6 1

CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 11. C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 325. 3 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 858. 4 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 384. See also → Article 2 mns. 10 et seq. 5 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 5. 6 See Commission on Human Rights, Final report (L Despouy), E/CN.4/Sub.2/1991/31, 1991, paras 131 et seq. See also B Byrne, in: M Freeman (ed.), Law and Childhood Studies, 2012, p. 419. 1

2

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Art. 23

A definition of disability is not included in Article 23 CRC. The CRC Committee 3 refers to Article 1 para. 2 ICRPD.7 According to this provision, persons with disabilities are those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder the full, effective and equal participation in society. Notwithstanding this general definition, which also fails to clarify all relevant aspects as regards the scope of ratione personae,8 the wording of Article 23 para. 1 CRC explicitly specifies two types of disability: mental disability and physical disability. However, a distinction in the way that rights are attached to the particular type of disability, cannot be derived from Article 23 CRC. Nor can a differentiation be made on account of the extent of or the reason for the disability, the result being that any disability of any kind or origin falls within the scope of Article 23 CRC.9 For the purposes of Article 23 CRC it is also irrelevant whether the disability is due to an act or omission or whether other reasons such as hereditary or genetic factors have played a role.10 However, minor impairments are not covered by the scope of Article 23 CRC. Even under the parallel norm of Article 1 para. 2 ICRPD, a slight impairment of hearing or a weakness of vision does not qualify as a disability as long as hearing aids or glasses are readily available.11 Otherwise, the scope of the Convention would be overstretched and would encompass a significantly high number of persons. In addition, in view of the distinction between disability and disease, a disability must lead to long(er)-term impairment. An impairment of a purely temporary nature is usually not regarded as a disability within the meaning of Article 23 CRC.12 Article 23 CRC represents one of the economic, social and cultural rights of the child 4 provided for in the Convention. The provision contains predominantly programmatic principles that leave States Parties with a large margin of appreciation, rather than establishing a clear-cut legal obligation.13 This is demonstrated by numerous formulations in Article 23 para. 2 to para. 4 CRC, according to which the States Parties may exercise wide discretion. Above all, the fact that both the right of the child with disabilities to special care in Article 23 para. 2 CRC is conditioned through “subject to available resources” and the assistance free of charge according to Article 23 para. 3 CRC shall be provided only “whenever possible”, demonstrates the limitation of the standards set out in Article 23 CRC. Furthermore, although Article 23 para. 2 CRC guarantees children with disabilities the right to special care, it does not indicate how this care should be achieved.14 The wording of Article 23 CRC thus ultimately leads to a weakening of

CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 7. For a fuller account see S Schmahl, Menschen mit Behinderungen im Spiegel des internationalen Menschenrechtsschutzes, Archiv des Völkerrechts 45 (2007), p. 517, at 534 et seq. 9 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 325. 10 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 356 et seq. 11 See S Schmahl, Menschen mit Behinderungen im Spiegel des internationalen Menschenrechtsschutzes, Archiv des Völkerrechts 45 (2007), p. 517, at 534. 12 See LP Rothfritz, Die Konvention der Vereinten Nationen zum Schutz der Rechte von Menschen mit Behinderungen, 2010, p. 167 et seq.; R Kayess/P French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities, Human Rights Law Review 8 (2008), p. 1, at 23. 13 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 330-331; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 23.04. 14 See U Kilkelly, in: G Quinn/T Degener (eds.), Human Rights and Disability, 2002, p. 191, at 199 et seq. 7

8

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the protection of children with disabilities.15 At least, it casts doubts on its potential to ensure full human rights enjoyment by children with disabilities.16 5 Nevertheless, the CRC Committee, when interpreting this programmatic standard, has repeatedly stressed that States Parties must not take a welfarist and social approach to disability in addressing issues relating to children with disabilities but they must embrace a human rights-based approach.17 Therefore, the outdated welfarist-based terminology employed by the text of Article 23 CRC is just a reflection of the approach of disability prevailing at the time the CRC was being adopted. The CRC Committee has confirmed at several instances the need for a dynamic understanding of this provision, also with a view to the ICRPD which has entered into force in 2008 and which has resolved the conundrum.18 The CRC Committee regularly pays attention to an understanding in the empowering social model of disability and not the traditional medical understanding under which persons with disabilities were viewed as disabled by virtue of their impairments, with an emphasis on cure, treatment and restoration to normality.19 Thus, the main focus of Article 23 CRC is on socially constructed barriers, which in interaction with impairment, hinder the participation of children with disabilities on an equal basis with their peers.20

II. Dignity and Entitlement of Children with Disabilities (Article 23 para. 1 CRC) 6

Under Article 23 para. 1 CRC States Parties recognise the right of children with disabilities to a full and decent life that preserves the dignity of the child and promotes his or her self-reliance and active participation in the community. When drafting the article, the 1975 UN Declaration on the Rights of Disabled Persons21 was used as a model.22 The wording of Article 23 para. 1 CRC is founded on the principles of this Declaration. Thus, the inclusion of the right to a full and decent life stems from Article 3 of the 1975 Declaration, and the reference to conditions that promote the self-reliance of the child is parallel to Article 5 of the 1975 Declaration. However, what is striking is the unfortunate formulation of Article 23 CRC. The norm requires States to recognise that a child with disabilities should enjoy the entitlements contained in the provision. The obligation to recognise opera15 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 387 et seq.; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 359. 16 See U Kilkelly, in: G Quinn/T Degener (eds.), Human Rights and Disability, 2002, p. 191, at 215 et seq.; E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 368. 17 See CRC Committee, Concluding Observations: Barbados, CRC/C/BRB/CO/2, 2017, para. 46; Cameroon, CRC/C/CMR/CO/3-5, 2017, para. 33; Estonia, CRC/C/EST/CO/2-4, 2017, para. 39; Malawi, CRC/CMWI/CO/3-5, 2017, para. 32; Mongolia, CRC/C/MNG/CO/5, 2017, para. 29; Romania, CRC/C/ROU/CO/5, 2017, paras 31-32; Austria, CRC/C/AUT/CO/5-6, 2020, para. 31. 18 E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 369. 19 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 1, 5; Concluding Observations: Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 50; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 51. See also B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 862. 20 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 863. 21 UN General Assembly Resolution 3347 (XXX), A/RES/3447 (XXX), 9 December 1975. 22 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 383; G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 211, with footnote 281.

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tionalises Articles 2 and 4 CRC and obliges States Parties to take all the necessary and appropriate measures to ensure the realisation of a child’s rights under Article 23 CRC. However, the nature and scope of this obligation is qualified by the inclusion of “should” which is weaker than the term “shall”, as it is to be found in other provisions of the CRC. This creates, paradoxically, a mandatory obligation that States Parties realise an aspirational goal only.23 Specific obligations cannot be inferred from Article 23 para. 1 CRC; it rather reflects a programmatic standard of a progressive nature.24 Nonetheless, the overarching entitlement of children with disabilities under Article 23 7 para. 1 CRC is to the explicit recognition of dignity and to a full and decent life. In view of the wording of Article 23 para. 1 CRC, which stipulates that disabled children should have dignified, decent and self-reliant lives, it follows that children with disabilities should not be “locked away”, but rather be integrated into the social structures of the community. In various countries, particularly but not exclusively in certain African societies, children with disabilities are killed, neglected, abused, abandoned, not sent to school, institutionalised or even considered evil or “bad omens” due to negative stereotypes.25 This includes children with disabilities being hidden or prevented from engaging with the rest of the community as they are perceived as a “disgrace” to their families.26 The entitlement to live in conditions which ensure dignity demands that children with disabilities shall be treated with respect and not be subjected to discrimination and humiliation. According to the CRC Committee, any policy to ensure that children with disabilities enjoy respect of their dignity and honour must counteract deeply rooted prejudices and facilitate appropriate knowledge, technical capacity and skills to serve the needs of children with disabilities, by legislative and other measures.27 The recognition of the dignity of a child with disabilities in Article 23 para. 1 CRC is also significant in regards to the right to life, survival and development under Article 6 CRC.28 In this way, the neglect and killing of children with disabilities, which in some countries often results in lower penalties compared to cases involving non-disabled children, should be effectively countered.29 The fact that children with disabilities face various forms of neglect, violence and abuse, including in domestic and institutional settings, is of constant concern of the CRPD Committee, too.30 Furthermore, Article 23 para. 1 CRC is the leading principle relating to the rights 8 of children with disabilities, since it guarantees the right to inclusion and active partici-

23 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 861. 24 See U Kilkelly, in: G Quinn/T Degener (eds.), Human Rights and Disability, 2002, p. 191, at 192; M Jones/LA Marks, Beyond the Convention on the Rights of the Child: The Rights of Children with Disabilities in International Law, International Journal of Children’s Rights 5 (1997), p. 117, at 184. 25 See M Sabatello, Children with Disabilities: A Critical Appraisal, International Journal of Children’s Rights 21 (2013), p. 464 et seq. 26 For more detail see J Biegon, in: I Grobbelaar-du Plessis/T Van Reenen (eds.), Aspects of Disability Law in Africa, 2011, p. 53-83. 27 See, e.g., CRC Committee, Concluding Observations: Guinea-Bissau, CRC/C/GNB/CO/2-4, 2013, para. 51; Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 48; China, CRC/C/CHN/CO/3-4, 2013, para. 61; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 52; Congo, CRC/C/COG/CO/2-4, 2014, para. 57; Samoa, CRC/C/WSM/CO/2-4, 2016, para. 41; Germany, CRC/C/DEU/CO/3-4, 2014, para. 51; Ireland, CRC/C/IRL/CO/3-4, 2016, para. 48; Russian Federation, CRC/C/RUS/CO/4-5, 2014, para. 50; Iran, CRC/C/IRN/CO/3-4, 2016, para. 68. 28 E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 367. See also → Article 6 mn. 12. 29 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 31. 30 See, e.g., CRPD Committee, Concluding Observations: Croatia, CRPD/C/HRV/CO/1, 2015, para. 11; Guatemala, CRPD/C/GTM/CO/1, 2016, para. 23; Armenia, CRPD/C/ARM/CO/1, 2017, para. 11.

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pation in society.31 Historically, children with disabilities have been treated as objects in need of protection and they have been devalued and disempowered or even abandoned.32 In this context, Article 23 para. 1 CRC obligates States Parties to create conditions which promote self-reliance and active participation for children with disabilities. Children with disabilities shall express their views in accordance with Article 12 CRC in whatever communication they need.33 The inclusion of children with disabilities in society should not only proceed because the State provides for special measures tailored to children with disabilities in all areas of society, such as the accessibility of the physical environment, special means of transport, information and communication tools.34 Instead, children with disabilities should also be able to actively participate in programmes not specifically designed for them.35 Just as Article 24 para. 1, sentence 2 ICRPD, Article 23 CRC is based on the concept of inclusion and not of simple integration of children with disabilities into the mainstream society that legislates for a one-sided obligation to adapt the lives of persons with disabilities to an environment designed for non-disabled people.36 Instead, disability is seen as a consequence of the living environment. Disability does not necessarily follow from the impairment of health, as the medical model of disability would suggest, but mainly from political decisions and social behaviours, i.e. from the barriers present in the entire social environment,37 which should be eliminated by measures of prevention. In this respect, the CRC Committee embraces the social model of disability and highlights that States Parties must take positive measures aimed at realising the goal of including children with disabilities fully in the society.38 It recommends States Parties to support training for families and professionals on promoting and respecting the needs of children with disabilities.39 The CRC Committee further bemoans the exclusion of children with disabilities from the society, especially through the placement of children with disabilities in institutions, and urges States Parties to take appropriate measures that will assure the inclusion in future times.40 The CRC Committee also recommends States Parties to establish comprehensive strategies, policies, or enact laws that facilitate the full inclusion of children with disabilities, including those with intellectual and psychosocial disabilities, in all areas of public life.41 States Parties shall adopt a human rights-based approach to disability in conceptualising issues 31 E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 365. 32 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 868. 33 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 32. 34 See F Welti, Barrierefreiheit als Rechtsbegriff, Die Öffentliche Verwaltung 2013, p. 795, at 796 et seq. 35 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 327. 36 LP Rothfritz, Die Konvention der Vereinten Nationen zum Schutz der Rechte von Menschen mit Behinderungen, 2010, p. 159; T Degener, Antidiskriminierungsrechte für Behinderte: Ein globaler Überblick, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65 (2005), p. 887, at 890; M Krajewski, Inklusive Schule im Freistaat Bayern?, Bayerische Verwaltungsblätter 2012, p. 134, at 135. 37 T Degener, in: S Herr/L Gostin/H Koh (eds.), The Human Rights of Persons with Intellectual Disabilities: Different but Equal, 2003, p. 151 et seq. 38 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 11. 39 CRC Committee, Concluding Observations: Iceland, CRC/C/15/Add.203, 2003, para. 33; Equatorial Guinea, CRC/C/15/Add.245, 2004, para. 49; Haiti, CRC/C/15/Add.202, 2003, para. 51; Austria, CRC/C/AUT/CO/3-4, 2012, para. 45. 40 See CRC Committee, Concluding Observations: Romania, CRC/C/ROU/CO/5, 2017, paras 31-32.; Serbia, CRC/C/SRB/CO/2-3, 2017, paras 43-44; Georgia, CRC/C/GEO/CO/4, 2017, paras 29-30; Malawi, CRC/CMWI/CO/3-5, 2017, para. 32; Mongolia, CRC/C/MNG/CO/5, 2017, para. 29; Belgium, CRC/C/BEL/CO/5-6, 2019, para. 29; Rwanda, CRC/C/RWA/CO/5-6, 2020, para. 33. 41 CRC Committee, Concluding Observations: Barbados, CRC/C/BRB/CO/2, 2017, para. 46; Central African Republic, CRC/C/CAF/CO/2, 2017, para. 53; Georgia, CRC/C/GEO/CO/4, 2017, para. 30; Malawi, CRC/C/MWI/CO/3-5, 2017, para. 32.

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relating to children with disabilities.42 Also, the CRPD Committee often criticises the lack of mechanisms and opportunities in domestic legislation to ensure the systematic inclusion or participation of children with disabilities in the making and taking of decisions which affect their lives.43 Drawing on the findings of the CRPD Committee, the CRC Committee highlights a number of key measures to be implemented by the States Parties such as easily accessible public transportation, removal of physical barriers to buildings and comprehensive health care policies for children with disabilities.44

III. Right to Special Care and Assistance (Article 23 para. 2, para. 3 CRC) Article 23 para. 2 CRC specifies a right to special care which requires the extension 9 of assistance to children with disabilities who are eligible to benefit and to those who are responsible for their care.45 The inclusion of the word “special care” means that States Parties must take measures to address the factors that impede, reduce or deny the ability of children with disabilities to engage and participate in life in ways that children without disabilities are generally able to.46 This includes all appropriate measures, financially, morally and otherwise.47 Article 23 para. 2 CRC does explain neither the term “eligible child” nor the phrase “those who are responsible for his or her care”. However, the drafting history indicates that both terms are to be understood widely, including any child with a disability on the one hand, and any person caring for the child, regardless of familial or legal relationship on the other hand.48 It is striking that the wording of Article 23 para. 2 CRC makes the right to special 10 care dependent on an application. This condition of a request for assistance means, first and foremost, that if the parents or any other persons who are responsible for the care are not capable of caring for the child due to the child’s condition or because of their own specific circumstances, the State authorities may not act on their own initiative. The object and purpose of the provision are to avoid paternalistic assistance being imposed upon children with disabilities and their parents or other caregivers.49 Therefore, to prompt any State action in accordance with Article 23 para. 2 CRC, an application is required. Although the norm does not regulate the authorship or the eligibility for such applications, it may be assumed that the parent, legal guardian, caregiver, supervisor or the child him- or herself, to the extent permitted by his or her development, maturity

42 CRC Committee, Concluding Observations: Barbados, CRC/C/BRB/CO/2, 2017, para. 46; Bhutan, CRC/C/BTN/CO/3-5, 2017, para. 32; Cameroon, CRC/C/CMR/CO/3-5, 2017, para. 33; Estonia, CRC/C/EST/CO/2-4, 2017, para. 39; Serbia, CRC/C/SRB/CO/2-4, 2017, para. 44. 43 See CRPD Committee, Concluding Observations: Germany, CRPD/C/DEU/CO/1, 2015, para. 1; Brazil, CRPD/C/BRA/CO/1, 2015, paras 18-19; Republic of Moldova, CRPD/C/MDA/CO/1, 2017, paras 16-17. 44 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 37-39; Concluding Observations: Yemen, CRC/C/YEM/CO/4, 2014, para. 54; Guyana, CRC/C/15/Add.224, 2004, para. 39; Pakistan, CRC/C/PAK/CO/5, 2016, para. 46; Estonia, CRC/C/EST/CO/2-4, 2017, para. 39. 45 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 12-14. 46 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 564-569. For a fuller account see B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 871-872. 47 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 327 et seq. 48 OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 569-570. 49 Cf. B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 876. See also the drafting history of Article 23 CRC in: OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 572-579.

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and ability, has authority to lodge such an application.50 There are no particular formal requirements imposed upon the application; each simple request suffices. Problems may arise, however, when the child is not capable of applying for assistance, and the parents for personal reasons, such as for a sense of shame, do not wish to request State support. In such cases, the child’s right to special care is at risk, because the State authorities may not interfere propio motu according to the clear wording of Article 23 para. 2 CRC.51 In their totality, both the application requirements of Article 23 para. 2 CRC and the fundamental subsidiarity of State action lead to only a marginal protection of children with disabilities.52 It is rather left to the discretion of States Parties to create the necessary institutional structures and procedures in order to enable children with disabilities and their carers to make an application for assistance.53 11 The additional restriction in the wording of Article 23 para. 2 CRC that State assistance is subject to available resources again shows the normative weakness of the standard. It is merely an obligation of the State to undertake to provide such support whenever and to the extent possible.54 On the other hand, it is not within the complete discretion of the States Parties to determine the extent to which they provide the means for implementation. In view of Article 4, sentence 2 CRC, States Parties must take all appropriate measures, using all of their available resources to the maximum extent possible.55 Due to the particularly vulnerable status of children with disabilities, the efforts demanded of the States Parties in this regard are even more extensive than in other areas. States Parties are required to consider the implementation of Article 23 para. 2 CRC as a matter of high priority in ensuring the maximum inclusion of children with disabilities in the society.56 The CRC Committee expresses concern that, according to various national laws, the main burden of care is placed solely upon families and recommends that the States Parties should undertake greater efforts to make available the necessary professional and financial resources to assist parents and caregivers. 57 12 The type of measures of special care that children with disabilities should be able to claim pursuant to Article 23 para. 2 and para. 3 CRC does in principle not go beyond those measures which non-disabled children can demand under Article 20 CRC.58 Article 23 para. 2 and para. 3 CRC are not fundamentally concerned with granting children with disabilities extra or distinct rights. Rather, these provisions seek to ensure that children with disabilities can enjoy their rights on an equal footing with non-disabled children, which they often cannot or are not allowed to, due to their disabilities and ensuing social barriers.59 Consequently, States Parties are obliged, within their available resources, to ensure assistance to the child with disabilities and those responsible for their care. In no case shall a child be separated from parents on the basis of disability only. Separation may be considered admissible only in cases where the necessary assistance to the family in order to C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 328. C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 329. 52 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 359. 53 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 876. 54 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 368. 55 See → Article 4 mn. 20. 56 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 14 a. See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 386. 57 See, e.g., CRC Committee, Concluding Observations: France, CRC/C/15/Add.240, 2004, paras 40-41. 58 See → Article 20 mn. 8. 59 See T Hammarberg in: T Degener/Y Koster-Dreese (eds.), Human Rights and Disabled Persons, 1995, p. 147, at 151; M Krajewski, Inklusive Schule im Freistaat Bayern?, Bayerische Verwaltungsblätter 2012, p. 134, at 135. 50

51

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preserve the family unit is not effective enough to avoid a risk of neglect or abandonment of the child or a risk to the child’s safety.60 Although the wording of Article 23 para. 2 CRC is rather vague and establishes mere- 13 ly programmatic standards, the CRC Committee has specified the principles contained in this norm in a dynamic manner and has proposed various measures intended to serve the implementation of Article 23 para. 2 CRC. In this respect, States Parties shall create action plans and strategic programmes to ensure that the children with disabilities and their parents or caregivers receive special State support and assistance. 61 In addition, States Parties should create an institution to coordinate the implementation of the needs of children with disabilities. This can be done either by an independent coordination system or by the integration of a coordination centre in an existing system.62 In any case, States parties shall establish an adequate monitoring system.63 The specific design of this system is left to the discretion of the States Parties. However, national institutions endowed with review authority must be able to exercise their mandate in an independent, adequately equipped and public manner; they must be legally and actually accessible and be competent and capable of accepting and examining complaints. Overall, Article 23 para. 2 CRC, read in conjunction with the CRC Committee’s General Comment No. 9 (2006), establishes an effective right to special care and assistance, which the States cannot escape easily through any financial and economic proviso.64 Article 23 para. 3 CRC substantively supplements the positive obligations of States 14 Parties under Article 23 para. 2 CRC to recognise the right of a child with disabilities to special care and assistance.65 Above all, Article 23 para. 3 CRC concerns the question of cost considerations for special measures and details out of what is to be achieved through financial support.66 The obligation to provide assistance free of charge under Article 23 para. 3 CRC is crucial for the interpretation of Article 23 para. 2 CRC, since it makes clear that States carry the primary and strong obligation to provide assistance free of charge to the extent possible, by taking the financial resources of the caregivers into account. The assistance required has to be provided with the aim of encouraging a complete social integration of the individual child into society.67 Furthermore, Article 23 para. 3 CRC clarifies that initially the parents and the family are financially responsible for their child, since assistance free of charge must be granted by the State authorities only after having taken into account the financial resources of the parents or other caregivers. 68 However, the assistance shall be provided without undue financial hardship to the child’s parents or other carers.69 On the other hand, State assistance also depends on the resources available, since it is only to be free of charge “whenever possible”. However, the CRC Committee urges the States Parties to optimally exhaust their available resources.70 Furthermore, Article 23 para. 3 CRC requires States Parties to ensure that children with disabilities have effective access 60 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 63. See also Article 23 para. 4 ICRPD, and K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 193. 61 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 13. 62 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 21. 63 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 24. 64 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 13 et seq. 65 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 386. 66 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 12. 67 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 208. 68 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 326. 69 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 573-574. 70 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 14.

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to receive such assistance. Although States Parties have significant discretion in this respect, as a minimum, they are required to have some system allowing for the identification of children with disabilities and the subsequent monitoring of any assistance provided to them.71 Thereby, States Parties shall in particular target certain groups of children with disabilities who are particularly vulnerable and at risk of multiple discriminations such as children in rural settings, girls, indigenous children and children in institutional settings.72 15 The assistance shall, pursuant to Article 23 para. 3 CRC, be designed to ensure that the child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment, and recreation and recovery opportunities. The value of education for children with disabilities is beyond dispute. Article 23 para. 3 CRC thus demands States Parties to identify and redress the structural, cultural and attitudinal prejudices that deny children with disabilities their right to effective education.73 Whilst Article 23 para. 3 CRC does not explicitly refer to inclusive education, the CRC Committee frequently elaborates on this issue on the account of Article 24 ICRPD and Article 29 CRC, and clarifies that inclusive education should be the goal of educating children with disabilities.74 In addition to academic educations, the requirement of training reinforces the need for States Parties to provide practical, vocational skill-based training for children with disabilities in order to secure an effective transition from education to employment.75 In the same line stands the obligation to ensure career awareness in order to enable children with disabilities to make better choices with respect to employment.76 The obligation to provide health care services is closely connected to the right of the child to the highest attainable standard of health under Article 24 CRC. These include primary care such as the completion of necessary operations and the administration of medicine77 but also other services which must be easy to access and sensitive to the particular needs of children with disabilities.78 On the other hand, the CRC Committee has rightly expressed deep concern about the practice of forced sterilisation of children with disabilities. This practice seriously violates the right of the child to his or her physical integrity and results in adverse life-long physical and mental health effects.79 Furthermore, Article 23 para. 3 CRC obliges States to ensure that children with disabilities have effective access to and receive rehabilitation services with the aim of eliminating or reducing a disability.80 Finally, the inclusion of an obligation to provide recreation and recovery possibilities in Article 23 para. 3 CRC affirms children’s general right to recreation under Article 31 CRC and stresses the need for CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 8, 19. See, e.g., CRC Committee, Concluding Observations: Peru, CRC/C/PER//CO/4-5, 2016, para. 51; Kenya, CRC/C/KEN/CO/3-5, 2016, para. 45; Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 51; Gabon, CRC/C/GAB/CO/2, 2016, para. 45; Panama, CRC/C/15/Add.233, 2004, para. 41; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 52; France, CRC/C/FRA/CO/5, 2016, para. 59; Serbia, CRC/C/SRB/CO/ 2-3, 2017, paras 39-40. 73 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 881. 74 See CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, paras 10, 18; General Comment No. 9, CRC/C/GC/9, 2006, para. 66; Concluding Observations: Peru, CRC/C/PER/CO/4-5, 2016, paras 51-52; Oman, CRC/C/OMN/CO/3-4, 2016, para. 47; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 46; Samoa, CRC/S/WSM/CO/2-4, 2016, para. 40; Tonga, CRC/C/TON/CO/1, 2019, para. 46; Rwanda, CRC/C/RWA/CO/5-6, 2020, para. 32. 75 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 68-69. 76 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 68. 77 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 329. 78 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 51-52, 56-58. 79 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, paras 58 et seq. 80 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 357. See also → Article 39 mns. 1 et seq. 71

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States Parties to take additional measures to ensure that children with disabilities have effective access to those opportunities which usually serve the purpose of rehabilitation, but also the recovery of environmental influences or social difficulties.81 The list of areas of life in Article 23 para. 3 CRC, in which affected children have to receive special assistance, is not exhaustive but enumerative.82 According to the CRC Committee, the assistance should be provided in the form of, among others, social protection and poverty reduction programmes,83 adequate support payments and services for all children with disabilities,84 and assistance and financial support to parents who are unable to work because they provide constant care to a child with a disability.85 Article 23 para. 3 CRC emphasises that the assistance for children with disabilities 16 must take place in a manner conducive to the child’s achieving the fullest possible social integration and individual development. Therefore, States Parties are obligated through all measures referred to in Article 23 para. 3 CRC to promote and foster the social and participatory integration as well as the individual development of the child with disabilities and his or her cultural and intellectual development. In this regard, there is a close connection between Article 23 CRC and Article 12 CRC which governs the participation rights of children.86 Article 7 para. 3 ICRPD even provides a higher standard of the right of the child with disabilities to participate as compared to Articles 23 and 12 CRC, since it does not restrict the exercise of the right to participation to a child who is capable of forming own views according to age and maturity. In addition, Article 4 para. 3 ICRPD expressly obliges States Parties to ensure that persons with disabilities, including children with disabilities, actively and meaningfully participate in the development of policies and legislation for the implementation of the ICRPD and in decision-making processes concerning persons and children with disabilities.87 Also, Article 23 para. 1 CRC stipulates that programmes shall be developed which not only relate exclusively to children with disabilities, but also relate to all children in order to avoid further social exclusion of children with disabilities. Moreover, it is expected that States Parties involve children with disabilities or competent non-governmental organisations in developing child-related policies, laws or other related measures.88 The word “integration” in Article 23 para. 3 CRC still bears witness to the traditional view that children with disabilities should adapt to mainstream society and not that the environment should be adapted to their needs. However, the CRC Committee speaks now – in line with the ICRPD – of “inclusion”.89 The term “inclusion” refers to a real integration into society “at eye-to-eye level”.90 For this purpose it is required inter alia that personnel working with children with disabilities in the health sector are trained to

81 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 70-72; General Comment No. 17, CRC/C/GC/17, 2013, para. 50. 82 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 329. 83 CRC Committee, Concluding Observations: Central African Republic, CRC/C/CAF/CO/2, 2017, para. 53. 84 CRC Committee, Concluding Observations: Estonia, CRC/C/EST/CO/2-4, 2017, para. 39. 85 CRC Committee, Concluding Observations: Serbia, CRC/C/SRB/CO/2-4, 2017, para. 44. 86 See → Article 12 mn. 3. 87 E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 371. See, for instance, CRPD Committee, Concluding Observations: Brazil, CRPD/C/BRA/CO/1, 2015, paras 18-19; Uganda, CRPD/C/UGA/CO/1, 2016, para. 13. 88 J Sloth-Nielsen/BD Mezmur, Surveying the Research Landscape to Promote Children’s Legal Rights in an African Context, African Human Rights Law Journal 7 (2007), p. 330-353; E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 367. 89 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 14, 66. 90 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 33.

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the highest possible standard and work in a child-oriented manner.91 In addition, States Parties must ensure equal access for children with and without disabilities to inclusive and quality education and promote the special pedagogical education of teachers.92 This requirement arises not only from Article 23 CRC, but above all from Article 24 ICRPD and Article 28 CRC.93 The CRC Committee further calls on States Parties to grant special educational support to children with disabilities of foreign nationality.94 17 Especially in regard to children with mental or emotional disabilities, the CRC Committee emphasises that the right to be heard under Article 12 CRC also applies to questions of accommodation and medical treatment.95 For instance, the CRC Committee notes with concern that children with mental disabilities are often isolated and given drugs to calm them down without taking their will into account in the medical treatment.96 In addition, the benefits of any medical treatment of children must always be carefully weighed against the potential risks and concomitants.97 When deciding on their own health, the views and wishes of the children with disabilities shall be taken seriously into consideration. They must be informed in advance of the intended treatments and their consequences as well as of the possibility of alternative measures. In that regard, the CRC Committee regularly refers to the recommendations of the CRPD Committee on the consideration of the will of children in therapeutic treatment and even accepts them explicitly as its own opinions.98 Also in the opposite direction, synergies and congruence between the principles of the ICRPD and the CRC are detectable.99 The CRC Committee, for instance, considers the non-therapeutic compulsory sterilisation of children with disabilities as being in violation not only of Article 2, read in conjunction with Article 23 CRC, but also of Article 23 lit. c ICRPD.100

IV. International Cooperation (Article 23 para. 4 CRC) 18

The need for international cooperation and information sharing is acknowledged as being a critical tool for securing the rights of children with disabilities.101 Nevertheless, it is important to note that the States obligations under Article 23 para. 4 CRC are only meant to promote international cooperation in the exchange of appropriate information. CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 52. CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 50 et seq. 93 R Eichholz, Paradigmenwechsel im Schulwesen? Zum Vorrang des Kindeswohls nach Art. 3 der UNKinderrechtskonvention, Recht und Bildung 4 (2007), p. 3-10; M Krajewski, Inklusive Schule im Freistaat Bayern?, Bayerische Verwaltungsblätter 2012, p. 134, at 135; T Degener, Das Recht auf inklusive Bildung als Menschenrecht, Kritische Justiz 2012, p. 405, at 406 et seq. 94 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 54 et seq. 95 See, e.g., CRC Committee, Concluding Observations: Denmark, CRC/C/15/Add.151, 2011, para. 31; United Kingdom, CRC/C/GBR/CO/4, 2008, paras 38 et seq.; Armenia, CRC/C/ARM/CO/4, 2013, paras 27 et seq. For a fuller account see S Schmahl, in: D Coester-Waltjen et al. (eds.), Zwangsbehandlung bei Selbstgefährdung, 2016, p. 97, at 100 et seq. 96 CRC Committee, Concluding Observations: Belgium, CRC/C/BEL/CO3-4, 2010, paras 58 et seq.; see also CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 23. 97 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 77. 98 See CRC Committee, Concluding Observations: Denmark, CRC/C/DNK/CO/4, 2011, para. 46 b; Sweden, CRC/C/SWE/CO/5, 2015, para. 39. 99 For more detail see S Schmahl, in: D Coester-Waltjen et al. (eds.), Zwangsbehandlung bei Selbstgefährdung, 2016, p. 97, at 102 et seq. 100 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 57. 101 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 896. 91

92

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Although during the drafting, international cooperation in Article 23 para. 4 CRC was initially considered to be mandatory;102 the wording was later reformulated to a mere “promotion” of international cooperation.103 Thus, States actually do not have to exchange information but only must take all reasonable measures to foster information exchange.104 The nature and purpose of international cooperation is the transnational exchange of information and knowledge in the fields of preventive health care and of medical, psychological and functional treatment of children with disabilities as well as on methods of education and vocational services. The aim of information exchange is to enable States Parties to improve their capabilities and skills and to widen their experience in these areas. In particular, Article 23 para. 4 CRC should serve to promote the development of updated science and knowledge as well as to share best practice in relation to legislative, administrative or policy measures.105 States Parties are called upon to explore effective strategies for preventing disabilities and to check the causes of disabilities such as poverty.106 However, States Parties have rarely exchanged information by now, which raises the concerns of the CRC Committee.107 The exchange of information instead takes place through international organisations such as UNICEF, UNESCO, the WHO and several non-governmental organisations.108 Supplementary measures, especially within bilateral and multilateral development assistance, remain a desideratum.109

V. Embedding of Article 23 CRC into the System of International Human Rights Protection The CRC is the first universal human rights treaty that explicitly lists disability 19 in its general anti-discrimination provision of Article 2 CRC and envisages children with disabilities as rights-holders in Article 23 CRC.110 Previously, other human rights treaties did not mention disability as a ground for discrimination and have subsumed disability merely under the term “other status”, as demonstrated in Article 2 para. 1 ICCPR and Article 2 para. 2 ICESCR. It is noteworthy that Article 23 CRC is one of the few provisions in the CRC to which no reservations or declarations have been entered by States Parties.111 Before the entry into force of the CRC, there was no international human rights 20 treaty explicitly regulating the rights of children with disabilities.112 Since disability See Commission on Human Rights, Report of the Working Group, E/CN.4/1983/62, 1983, para. 82. S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 389. 104 Similar assessment by P Harpur/MA Stein in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 139, at 142-143, 145-146. 105 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 330; B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 898. 106 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 15, 22. See also E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 366. 107 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 15 et seq. 108 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 330. 109 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 22. See also by P Harpur/MA Stein in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 139, at 146. 110 E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 364. 111 E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 365. 112 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 2. 102

103

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[Care of Children with Disabilities]

was widely regarded as a social welfare issue, the earlier human rights treaties adopted before the CRC did not contain provisions of the rights of persons with disabilities.113 Children with disabilities were first mentioned in Article 5 of the 1959 UN Declaration of the Rights of the Child;114 however, this document has remained legally non-binding. The same is true for Article 25 para. 1 UDHR which, although making reference to disability by recognising the right to security in the event of unemployment, sickness and disability, does not impose binding obligations upon States. 21 Nevertheless, general human rights treaties, such as the ICCPR and the ICESCR, continue to be relevant to the enjoyment of rights of children with disabilities, since they contain rights that are supposed to be enjoyed by all persons, including children, or categories of persons falling within the realm of the protection provided by the treaties. Neither the ICCPR nor the ICESCR contains explicit special rights for persons with disabilities with the effect that they do not provide a sufficient and manageable framework to ensure full human rights enjoyment by children with disabilities.115 However, the CESCR Committee, in its General Comment No. 5 (1994), has specifically requested that all rights of the ICESCR are applicable to persons with disabilities.116 22 General protection against discrimination is guaranteed to children with disabilities through Article 2 para. 1, Article 26, sentence 2 ICCPR and Article 2 para. 2 ICESCR, since disability falls under “other status”.117 By means of such indirect provisions it is however certain that the special vulnerability of children with disabilities cannot be sufficiently protected in practice. As experience shows, the waiver of an express reference to vulnerable groups in human rights instruments is almost analogous to the fact that certain groups are excluded from the guarantee in practice.118 A good example of this exclusion is the national reports of several countries to the CRC Committee, which for a prolonged period did not consider the situation of children with disabilities at all.119 The traditional view was that persons with disabilities were simply an object of social policy, charity and welfare, and were not regarded as independent persons with individual rights.120 The CRPD Committee even today highlights that several States Parties to the ICRPD still give prevalence of the welfare and charity-based approach to the care of children with disabilities.121 23 The first developments towards greater “visibility” of persons with disabilities took place within the area of soft law instruments. The shift occurred in the approach to disability from the medical to the social and human rights models, according to which disability is regarded as a human rights issue. Unlike the medical model, the social and hu113 B Byrne, in: M Freeman (ed.), Law and Childhood Studies: Current Legal Issues, Vol. 1, 2012, p. 419-437. 114 See → Introduction mn. 14. 115 Rightly so, B Byrne, in: M Freeman (ed.), Law and Childhood Studies: Current Legal Issues, Vol. 1, 2012, p. 419, at 421 et seq.; E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 363. 116 CESCR Committee, General Comment No. 5: Persons with Disabilities, HRI/GEN/1/Rev.9 (Vol. I), 1994, p. 17, para. 5. 117 LP Rothfritz, Die Konvention der Vereinten Nationen zum Schutz der Rechte von Menschen mit Behinderungen, 2010, p. 57; M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 26 mns. 72-74. 118 T Degener, Antidiskriminierungsrechte für Behinderte: Ein globaler Überblick, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65 (2005), p. 887, at 888. 119 See S Moore/L Melchior/J Davis, Me and the 5 P’s: Negotiating Rights-Based Critical Disabilities Studies and Social Inclusion, International Journal of Children’s Rights 16 (2008), p. 249, at 250. 120 For a fuller account see BG Flovenz, in: OM Arnardóttir/G Quinn (eds.), The UN Convention on the Rights of Persons with Disabilities, 2009, p. 257-278. 121 See, for instance, CRPD Committee, Concluding Observations: Mexico, CRPD/CO/MEX/CO/1, 2014, para. 15.

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man rights models attribute the challenges faced by persons with disabilities to the barriers that exist in the environment which impede persons with disabilities from participating in the society on an equal basis with others.122 Important in this shift of paradigm in the legal conceptualisation of disability are two resolutions of the UN General Assembly. In 1971, the UN General Assembly adopted the Declaration on the Rights of Mentally Retarded Persons123 and in 1975, the Declaration on the Rights of Disabled Persons.124 Despite their now inappropriate terminology, both (non-binding) declarations emphasise the applicability of all human rights to persons with disabilities and identify a list of rights that have particular relevance to persons with disabilities. In the 1980 s, disability policy moved further to the fore. Accordingly, 1981 was proclaimed as the International Year of Disabled Persons, which resulted in the World Programme of Action for the Disabled.125 With the UN General Assembly Standard Rules on the Equalisation of Opportunities for Persons with Disabilities of 1993126 came the first comprehensive codification of rights for persons with disabilities. Simultaneously, a UN Special Rapporteur on Persons with Disabilities was appointed for the first time, who was responsible for monitoring the implementation of the 1993 Standard Rules. These rules remained the centrepiece of the international response to the rights of persons with disabilities from 1993 until 2006.127 The most significant international development with regard to persons with disabili- 24 ties happened in 2006 where the UN General Assembly adopted the ICRPD along with an Additional Protocol.128 The ICRPD entered into force in 2008129 and has so far (as of May 2020) been ratified by 181 States. The Additional Protocol to the ICRPD, which provides for an individual complaint procedure, has 95 Contracting States. The ICRPD combines a mainstreaming approach to the rights of persons with disabilities and contains in Article 3 lit. h, Article 5, Article 7 paras 1-3, Article 16 para. 5, Article 18 para. 2, Article 23 paras 3-5, Article 24 para. 2, and Article 30 para. 5 several provisions which specifically deal with children with disabilities and impose upon States to provide ageappropriate assistance. 130 In both the CRC, through the dynamic statements and recommendations issued by the CRC Committee, and the ICRPD, there has been a paradigm shift away from viewing persons with disabilities and children as welfare objects and towards viewing them as legal subjects and bearer of human rights.131 However, it has to be borne in mind that a (non-disabled) person usually automatically grows out of the state of childhood and does not have to generally liberate him- or herself of the situation of being oppressed and excluded.132 The emancipatory character of the two conventions, CRC and ICRPD, has thus varying degrees.

122 For more detail see AS Kanter, The Globalization of Disability Rights Law, Syracuse Journal of International Commerce Law 30 (2003), p. 241-269. 123 A/RES/2856 (XXVI), 20 December 1971. 124 A/RES/3447 (XXX), 9 December 1975. 125 See N Weiß, UN-Konvention über die Rechte von Menschen mit Behinderung, MenschenRechtsMagazin 2006, p. 293, at 298. 126 A/RES/48/96, 20 December 1993. 127 B Byrne, Article 23, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 856, at 860. 128 A/RES/61/106, opened for signature on 13 December 2006. 129 2515 UNTS 3, entered into force on 3 May 2008. 130 For a fuller account see E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 370 et seq. 131 See G Quinn/T Degener, in: eisdem (eds.), Human Rights and Disability, 2002, p. 19-30; V Aichele, Die UN-Behindertenrechtskonvention und ihr Fakultativprotokoll, 2008, p. 4 et seq. 132 See F Wapler, Kinderrechte und Kindeswohl, 2015, p. 401. See also → Introduction mn. 45.

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[Care of Children with Disabilities]

At the African level, the African Charter on the Rights and Welfare of the Child provides for the rights of children with disabilities in three aspects: by guaranteeing all children freedom from discrimination according to Article 3 ACRWC, by containing specific provisions on the rights of children with disabilities in Article 13 ACRWC, and by providing for general substantive rights for all children, which also apply to children with disabilities.133 Different to the wording of Article 23 CRC, Article 13 para. 1 ACRWC specifically emphasises the autonomy of children with disabilities and their inclusion and active participation in the society by requiring the States Parties to ensure their self-reliance and active participation in the community. It, hence, argues for a human-rights-based and not as much for a medical and welfare-driven approach, although Article 13 para. 2 ACRWC still retains some elements of the welfare approach to disability at least in terminology when addressing the special care and assistance needed by children with disabilities.134 26 At the European level, the rights of children with disabilities are not explicitly guaranteed. The ECHR contains no norms that specifically address the protection of persons with disabilities. Although the ECtHR has indeed, in a number of cases, dealt with complaints concerning persons with disabilities,135 it has not yet specifically engaged in a case concerning the rights of children with disabilities. All in all, the protection of the fundamental rights of children with disabilities in the case-law of the Strasbourg Court still remains rather weak. So far, the decisions of the ECtHR have focused primarily on States’ duties to guarantee the right to life and physical integrity of children with disabilities.136 Individual participation rights of children with disabilities were not yet in focus. On the contrary: the EComHR ruled in 1990 that children with disabilities had no claim to be educated in a regular school, if the State Party has established special schools for children with disabilities.137 Only the CJEU has guaranteed children with disabilities indirect protection through the legal concept of mediated discrimination based on the Equal Treatment Framework Directive.138 In order to strengthen the not yet fully developed protection of human rights for children with disabilities at European level, the CoE Committee of Ministers has made various recommendations that contain guidelines to ensure the full inclusion of children with disabilities in society.139 25

133 See E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 375 et seq. 134 See the critical assessment by E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 378. 135 See, e.g., ECtHR, Judgment of 29 April 2002, No. 2346/02, para. 87 – Pretty v. The United Kingdom; Judgment of 30 April 2009, No. 13444/04, paras 94 et seq. – Glor v. Switzerland; Judgment of 20 May 2010, No. 38832/06, paras 42 et seq. – Kiss v. Hungary; Judgment of 10 March 2011, No 2700/10, paras 63 et seq. – Kiyutin v. Russia; Judgment of 19 July 2012, No. 497/09, paras 51 et seq. – Koch v. Germany. 136 See, e.g., ECtHR, Judgment of 18 June 2013, No. 48609/06, paras 95 et seq. – Nencheva v. Bulgaria; Judgment of 17 July 2014, No. 47848/08, paras 130 et seq. – Valentin Campeanu v. Romania. 137 EComHR, Decision of 5 February 1990, No. 13887/88, DR 64, p. 158, at 165 et seq. – Graeme v. The United Kingdom. 138 CJEU, Judgment of 17 July 2008, Case C-303/06, ECLI:EU:C:2008:415, para. 38 – Coleman. See also → Article 2 mn. 8. 139 See, for example, Committee of Ministers Recommendations CM/Rec (2012) 6 of 13 June 2012, CM/Rec (2013) 2 of 16 October 2013, each with further references.

342

Art. 24

[Protection of Health]

Article 24 [Protection of Health] 1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality; (b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; (d) To ensure appropriate pre-natal and post-natal health care for mothers; (e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents; (f) To develop preventive health care, guidance for parents and family planning education and services. 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. 4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Obligation of a State to Recognise a Child’s Right to Health (Article 24 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Access to Health Care Services (Article 24 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . IV. Specific Measures Appropriate to Ensure a Child’s Right to Health (Article 24 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Measures to Diminish Infant and Child Mortality (Article 24 para. 2 lit. a CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Provision of Medical Assistance and Health Care (Article 24 para. 2 lit. b CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Measures Combating Malnutrition (Article 24 para. 2 lit. c CRC) . . . . . . . . 4. Measures for Health Care of Children and Parents, Especially Mothers (Article 24 para. 2 lit. d to lit. f CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Abolition of Traditional Harmful Practices (Article 24 para. 3 CRC) . . . . . . . . VI. Obligation to Promote International Cooperation (Article 24 para. 4 CRC) VII. Ecological/Eco-centric Children’s Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. Embedding of Article 24 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 11 13 15 17 18 23 26 30 31 33

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Art. 24

[Protection of Health]

I. Generalities Article 24 CRC deals with the right of the child to the enjoyment of the highest attainable standard of health. The norm was modelled on Article 12 ICESCR1 which in turn traces its origins to Article 1 of the WHO Constitution which provides that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being to be enjoyed without distinction.2 Like its predecessors, Article 24 CRC does, of course, not offer a child’s right to health which no one could guarantee. The article rather provides children with an entitlement to enjoy conditions and access to appropriate services that will enable them to enjoy the highest attainable standard of health in light of their personal physiological and psychological circumstances.3 Against this background, Article 24 para. 1 CRC provides the child with an individual right to be protected, for the realisation of which the State has to take all appropriate measures to secure a child’s right to health as specified in Article 24 para. 2 to para. 4 CRC. Article 24 para. 2 and para. 4 CRC both serve as interpretation guidelines in order to substantiate the obligations enshrined in Article 24 para. 1 CRC.4 Only Article 24 para. 3 CRC is specific as it requires that States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. Although the Convention avoids to condemn particular cultures and traditions, it is clear that harmful practices to the health of the child must be prohibited. 2 Article 24 CRC is an individual human right. It gives each child entitlements to protection and does not merely guarantee the protection of health for a majority or a group average of children.5 Yet, in functional and dogmatic terms, Article 24 CRC belongs to the group of economic, social and cultural rights, which, to the extent that they incorporate a State’s duty to fulfil, are limited by the implementation clause enshrined in Article 4 para. 2 CRC.6 The entitlement to protection remains therefore subject to the availability of resources within a State Party. However, this obligation is to be understood in a progressive way, which means that it still imposes a substantive obligation on States Parties to take all reasonable and appropriate measures to ensure and realise the availability, accessibility, acceptability and quality of health care for children, in particular children from the most marginalised vulnerable groups, such as migrant and refugee children.7 This so-called “3AQ Model” (availability, accessibility, acceptability and quality of health care) has become an accepted tool for assessing the appropriateness of a State’s measure to protect children’s right to health in international 1

1 See Commission on Human Rights, Report of the Working Group, E/CN.4/1985/63, 1983, para. 15; Technical Review, E/CN.4/1989/WG.1/CRP.1/Add.1, 1989, para. 30. 2 See J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 904. 3 J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 278. 4 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 134. 5 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 133. 6 See → Article 4 mns. 21 et seq. 7 See CRC Committee, Concluding Observations: Czech Republic, CRC/C/15/Add.201, 2003, para. 47 a; Romania, CRC/C/15/Add.199, 2003, para. 45 a; CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4CRC/C/GC/23, 2017, paras 54 et seq. Further see J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 278, 285 et seq.

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law8 and has been specifically endorsed by the CRC Committee.9 The practical measures required to satisfy these 3AQ-criteria include the provision of children’s health facilities of a scientifically and medically good quality and in sufficient quantity, which are physically, economically accessible to all children without discrimination and which are designed in a way that takes full account of children’s needs.10 Lastly, Article 24 para. 4 CRC seeks to promote international cooperation between the States Parties to the Convention in the area of health protection with a view to achieving progressively the child’s right to health both in the domestic and in another jurisdiction.11 In addition to the rules laid down in Article 24 CRC, the health of the child is 3 also recognised generally or in a more distinct manner by other provisions of the Convention, such as Article 6, Article 23, Articles 32 to 37, and Article 39 CRC. 12 Furthermore, the right to the highest attainable standard of health is dependent upon other human rights such as the right to sustenance, development and education. In the interpretation of Article 24 CRC these rights are important to consider when applying the norm.13 Moreover, in respect of health protection, the basic principles of the CRC are to be observed, especially Article 2 and Article 3 CRC. Accordingly, in measures concerning health protection, a State Party is not allowed to make differentiations based on race, sex, colour, disability, or a similar factor and must, at all times, take the best interests of the child into account.14 Above all, special attention needs to be given to children with psychosocial disabilities.15 The CRC Committee is generally concerned that children with disabilities are becoming quite easily victims of discrimination in the field of health care.16 In particular, children with attention deficit syndrome or attention deficit hyperactivity disorder are often prematurely labelled mentally ill and too easily prescribed psychostimulants.17 Therefore, the CRC Committee calls upon States Parties to ensure that the placement of children suffering from attention deficit syndrome in psychiatric clinics is only a measure of last resort and that a system of independent 8 See the fundamental analysis by J Tobin, The Right to Health in International Law, 2012, p. 158-173; see also J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 919 et seq., with further references. – As to the similar assessment with regard to Article 26 ACHR see IACtHR, Judgment of 8 March 2018, Series C No. 349, paras 118 et seq. – Poblete Vilches et al. v. Chile; A Kohte, Die Unteilbarkeit und Gleichwertigkeit aller Menschenrechte im interamerikanischen Menschenrechtssystem: Der IAGMR entwickelt ein justiziables autonomes Recht auf Gesundheit im Fall Poblete Vilches, Zeitschrift für Europarechtliche Studien 2019, 573, at 584 et seq. 9 CRC Committee, General Comment No. 4 CRC/GC/2003/4, 2003, para. 37; General Comment No. 15, CRC/C/GC/15, 2013, paras 112 et seq. 10 See J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 290. 11 J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 907. See also CRC Committee, Concluding Observations: Bangladesh, CRC/C/15/Add.221, 2003, para. 51; Iran, CRC/C/IRN/CO/3-4, 2016, para. 69; Pakistan, CRC/C/PAK/CO/5, 2016, para. 48 a; South Africa, CRC/C/ZAF/CO/2, 2016, para. 48 b. 12 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 133. For a fuller account see U Kilkelly, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 367, at 370 et seq. 13 See WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 9. 14 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 8 seq., 12 seq.; see also WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 10. 15 See CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 15. 16 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 24 et seq. 17 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 58; Belgium, CRC/C/BEL/CO/5-6, 2019, para. 32; Japan, CRC/C/JPN/CO/4-5, 2019, para. 34; Australia, CRC/C/AUS/CO/5-6, 2019, para. 37; Austria, CRC/C/AUT/CO/5-6, 2020, para. 33.

345

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experts is set up to oversee drug treatment with psychostimulants. 18 The care of children with psychological or mental disabilities should be carried out as far as possible within the framework of one's own family;19 every medical treatment should focus on the wellbeing of the child and his or her opinion and views.20 The involuntary sterilisation of children with an intellectual disability represents an example of a non-consensual form of medical treatment which has been condemned by the CRC Committee.21 In general, the CRC Committee is concerned that children with disabilities are victims of (multiple) discrimination in health care22 and thus recommends the adoption of policy action programmes to reduce existing inequalities.23 The CRC Committee is also concerned about the lack of access of refugee children to health services in various European countries and criticises the fact that only a medical emergency care is provided to these groups.24 Chronically ill and traumatised refugee children are not receiving sufficient medical care, with the result that their health deteriorates, sometimes irreversibly. 4 The obligations of States Parties to protect children’s health include various functional dimensions and typologies.25 The tripartite typology of obligations has become accepted within international human rights law as a way of understanding the different layers of obligations imposed upon a State with respect to the enjoyment of a right. It consists of an obligation to respect, protect and to fulfil the right in question.26 This typology has been specifically endorsed by the CRC Committee in relation to the right to the enjoyment of the highest attainable standard of health.27 On the one hand, States Parties must refrain from direct interference in the child’s right to health or from violating the right of parents or other guardians to take all necessary measures to protect the health of the child (obligation to respect).28 This right also ensures that access to health services may neither be denied nor hindered (see Article 24 para. 1, sentence 2 CRC). 29 The right of parents to make recourse to traditional or alternative medicine must be respected by the State authorities if such practices are not contrary to the child’s well-being. 30 Secondly, the States Parties must guarantee protection against any interference by third Parties or non-State actors causing detriment to the health of the child (obligation to 18 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 59; Japan, CRC/C/JPN/CO/4-5, 2019, para. 35; Australia, CRC/C/AUS/CO/5-6, 2019, para. 38. 19 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 15; General Comment No. 14, CRC/C/GC/14, 2013, para. 78. 20 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 15, 21; General Comment No. 12, CRC/C/GC/12, 2009, paras 98 seq. See also → Article 23 mn. 17. 21 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 60. Critical assessment by J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 918-919. 22 See → Article 2 mn. 10. 23 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 24 et seq., 56. 24 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 56 b. 25 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 18. 26 For a fuller account see M Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social, and Cultural Rights, 2003, p. 157-248. 27 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 78. For a fuller account see J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 924 et seq. 28 Similarly, J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 289. 29 Similar assessment with regard to Article 12 ICESCR by: CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 34. 30 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 19.

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protect). This protective dimension means that, for instance, the marketing of medicines must be controlled and traditional or cultural practices that could harm the health of the child must be prevented.31 States must also ensure that privatisation of the health sector does not constitute a threat to the availability, accessibility, acceptability and quality of health facilities, goods and services.32 Thirdly, it follows from Article 24 CRC that States Parties are obliged to take appropriate legislative, administrative and financial measures in order to ensure that health protection is realised to the largest extent possible and to fulfil the entitlements enjoyed by a child under Article 24 CRC through facilitation or direct provisions (obligation to fulfil).33 These obligations include vaccination programmes to curb widespread infectious diseases or the proper training of medical personnel.34 Finally, both the CESCR Committee with regard to Article 12 ICESCR and the CRC 5 Committee in respect to Article 24 CRC have explained that the right to health includes freedoms such as the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from arbitrary or unlawful interferences such as the right to be free from torture, non-consensual medical treatment and experimentation.35 In this context, both Committees state that the principle of the evolving capacities of the child and the right to have his or her views given due weight in accordance with their age and level of maturity (Article 12 CRC) envisions the possibility that at a certain point, a child or adolescent will be competent to consent to medical treatment irrespective of the views of his or her parents.36 Even in circumstances where a child cannot consent to a medical procedure for lack of competency or maturity, there is a need to ensure that the child is still adequately informed about the treatment, to answer questions, reduce anxiety, warn about risks, give him or her a chance to express his or her views freely and increase compliance.37 In particular, the CRC Committee remains concerned that there are cases of intersex children who have allegedly been subjected to surgical and other procedures, which were medically unnecessary, without their consent to such procedures.38

See Article 24 para. 3 CRC. Similar assessment by CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 35. 33 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 78. See also CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, paras 36, 53. 34 See CRC Committee, Concluding Observations: Mozambique, CRC/C/MOZ/CO/3-4, 2019, paras 32 et seq.; Federated States of Micronesia, CRC/C/FSM/CO/2, 2020, para. 51. See also WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 18. 35 See CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 8; General Comment No. 22: The Right to Sexual and Reproductive Health (Article 12 ICESCR), E/C.12/GC/22, 2016, para. 5; CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 24. See also J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 909. 36 See CESCR Committee, General Comment No. 22: The Right to Sexual and Reproductive Health (Article 12 ICESCR), E/C.12/GC/22, 2016, para. 44; CRC Committee, General Comment No. 3, CRC/GC/ 2003/4, 2003, para. 27; General Comment No. 20, CRC/C/GC/20, 2016, para. 60. 37 For more detail see PA Michaud, in: A Cherry/V Baltag/M Dillon (eds.), International Handbook on Adolescent Health and Development, 2017, p. 359-372. 38 CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/3-6, 2019, para. 28 b; Austria, CRC/C/AUT/CO/5-6, 2020, para. 27. 31

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II. Obligation of a State to Recognise a Child’s Right to Health (Article 24 para. 1 CRC) Article 24 para. 1 CRC can be divided into three parts. Firstly, States Parties shall, according to Article 24 para. 1, sentence 1 CRC, recognise the child’s right to the enjoyment of the highest attainable standard of health and the child’s right to claim access to facilities for the treatment of illness and rehabilitation of health. Pursuant to Article 24 para. 1, sentence 2 CRC, States Parties shall also endeavour to ensure that the child is not deprived of the right of access to facilities for the rehabilitation of health and to health care services. Article 24 para. 1 CRC therefore, thirdly, includes the diagnosis, treatment and rehabilitation in case of illness.39 7 According to the CRC Committee, health in terms of Article 24 para. 1 CRC is not merely the absence of disease and fragility, but rather the state of complete physical, mental and social well-being.40 This suggestion does, however, not mean that the term “social well-being” includes social rights such as housing and education. Such an approach to Article 24 para. 1 CRC is too expansive as it encroaches on the normative territory of other economic and social rights guaranteed in the Convention.41 At the same time, it tends to impose a normative burden on the right to health that it was never intended to carry.42 8 Article 24 para. 1 CRC does of course not stipulate a right to be healthy, since no one can guarantee that a person will not become ill.43 Nor can States provide protection against every possible cause of illness.44 Thus, the entitlement of children under Article 24 para. 1 CRC is not a right to be guaranteed health by the State authorities but rather an entitlement to enjoy the conditions which will maximise the potential of a child to enjoy his or her health in light of his or her personal circumstances and the resources available to a State.45 It is only in that regard that every child does have a right to the enjoyment of the highest attainable standard of health under Article 24 para. 1 CRC.46 As a consequence, this right must take into account both the individual’s biological and socio-economic preconditions and a State’s available resources.47 9 Against this background, the highest attainable standard of health is dependent on many factors in the individual case. For instance, genetic imprints, biological pre6

See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 125. CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 23. 41 Rightly so, J Tobin, The Right to Health in International Law, 2012, p. 130-133; JP Ruger, Toward a Theory of the Right to Health: Capability and Incompletely Theorized Agreements, Yale Journal of International Human Rights 18 (2006), p. 273, at 312; N Daniels, Just Health: Meeting Health Needs Fairly, 2008, p. 37. 42 See J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 281. 43 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 22. See also CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 8. 44 CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 9. 45 See J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 280. 46 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 125. 47 See J Tobin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 277, at 280; CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 23. See also CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 9. 39

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conditions and the child’s environmental circumstances play a role.48 The biological preconditions of the child are not only based on genetic factors but also on the health of the mother during pregnancy which might affect the baby’s health.49 The circumstances of the child will further depend on the specific circumstances of the parents and the (extended) family,50 but also upon general environmental and societal influences as well as cultural traditions.51 Moreover, the behaviour of the parents and the child is also important, unless the child is old enough to take responsibility for his or her own health care.52 The complete circumstances of each single case have to be considered when determining the highest attainable standard of health achievable for an individual child. Nevertheless, especially vulnerable groups require particularly high level of protection. To this end, the CRC Committee requires States Parties to provide a comprehensive health care system for children with disabilities, which also ensures early detection of disabilities and offers psychological and physical treatment and rehabilitation, including physical assistance such as prostheses, hearing and vision aids.53 Unequal treatment in the health care of children with disabilities with respect to non-disabled children is unacceptable under the Convention.54 Article 24 para. 1, sentence 1 CRC also ensures the child’s right to facilities for the 10 treatment of illness and diseases. Required is that such facilities are sufficiently available, easily reachable and open for all citizens without discrimination.55 The institutions and facilities shall be able to provide first aid. Furthermore, they shall be capable of providing necessary medicines in compliance with the “WHO Action Programme on Essential Drugs”.56 Likewise, there shall be hospitals that can treat more complicated medical cases.57 In addition, States Parties are required to provide rehabilitative health facilities to enable the rehabilitation of children.58 Only through early rehabilitation can chronic diseases or serious damage as a result of illness or accidents be avoided.59 The CRC Committee has also expressed concern at the inadequacy of treatment facilities to deal with drug addiction in some States Parties and recommended steps be taken to enhance the quantity and quality of the treatment facilities.60

48 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 22. 49 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 305 et seq. 50 See → Article 5 mn. 3. 51 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 24. 52 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 25. 53 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 51. 54 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 24 et seq., 56. See also → Article 23 mn. 12. 55 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 25; see also WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 30. 56 See, e.g., World Health Organization, Action Programme on Essential Drugs (PB Iversen), WHO/DAP 98.12, 1998; Model List of Essential Medicines, 21st List, 2019. 57 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 30. 58 See also → Article 39 mns. 7 et seq. 59 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 31. 60 CRC Committee, Concluding Observations: Croatia, CRC/C/15/Add.243, 2004, para. 53; United Kingdom, CRC/C/GBR/CO/5, 2016, para. 60.

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III. Access to Health Care Services (Article 24 para. 1 CRC) Pursuant to Article 24 para. 1, sentence 2 CRC, the States Parties shall strive to ensure access to health care services. Prima facie, the formulation that the States Parties shall merely “strive to ensure” access could be considered a limitation with respect to the rights stipulated in Article 24 para. 1, sentence 1 CRC. However, such an assumption is not accurate, as Article 24 para. 1, sentence 2 CRC is specified in Article 24 para. 2 CRC which defines the minimum duties that have to be fulfilled by the States Parties. 61 To achieve the requirements of Article 24 para. 1, sentence 2 CRC, the States Parties must take active measures and observe a prohibition of non-compliance with these fundamental requirements.62 Firstly, the States Parties must guarantee that no one is excluded from health care services on financial grounds. Although the services must not be provided completely free of charge, it must be guaranteed that each person can afford them.63 The CESCR Committee has stated with regard to Article 12 ICESCR that in case of a cost obligation, it must be formed according to the principle of equality. Poorer households may not be made to pay relatively more in comparison to richer households.64 This approach is also to be followed in the interpretation of Article 24 CRC, because the article is closely related to and modelled on Article 12 ICESCR. 65 Both norms set out detailed steps required to give effect to the right to health, with the only difference that Article 24 CRC focuses on advancing the health rights of children and parents.66 12 By the clear wording of Article 24 para. 1, sentence 2 CRC, access to health care services shall be denied for “no child”. By these means, in addition to Article 2 para. 1 CRC, it is once again clarified that there must be no discrimination at all in health protection services.67 In this regard, States Parties are obligated to especially protect typically threatened groups and ensure that especially young girls, children with disabilities and unaccompanied refugee children are guaranteed the rights under Article 24 CRC. 68 The CRC Committee is particularly concerned with regard to the disadvantage of underage refugees in the services of health care.69 The CRC Committee also emphasises the special importance of access to health services for infants and young children70 as well as for children living in rural areas and less populated regions.71 11

C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 126. CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 28. 63 See WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 Mn 32 et seq. 64 CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 12. 65 See WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 4; J Tobin, The Right to Health in International Law, 2012, p. 14-43. 66 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 241. 67 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 8 seq.; see also WB Eide/ A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 36. 68 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 40. 69 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 56 b. For more detail see → Article 22 mn. 12; → Article 24 mn. 3. 70 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 27. 71 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 28. See also CRC Committee, Concluding Observations: Lao People’s Democratic Republic, CRC/C/LAO/CO/3-6, 2018, para. 37. 61

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IV. Specific Measures Appropriate to Ensure a Child’s Right to Health (Article 24 para. 2 CRC) Under Article 24 para. 2 CRC, States Parties shall pursue full implementation of the 13 right according to Article 24 para. 1 CRC and take appropriate measures as enumerated in the form of six examples laid down in Article 24 para. 2 lit. a to lit. f CRC. Some of the measures to be taken are tailored to the special needs of children, whereas others fundamentally benefit people of all ages, such as primary health care.72 The list contained in Article 24 para. 2 CRC is not exhaustive; also, some of the required measures go beyond what is required as health care when understood narrowly.73 They include a range of preventive measures, such as protection against HIV/AIDS and presumably also against COVID-19.74 The full realisation of the right under Article 24 para. 2 CRC takes place pursuant to 14 Article 4, sentence 2 CRC under the utilisation of available and appropriate resources. This means not only that the available resources must be utilised, but also that new medical or pharmaceutical opportunities, as they become available, have to be used to realise not simply the maintenance of the protection of health, but also to progress it effectively and as fast as possible.75 The CRC Committee has further variously called upon States Parties to ensure that appropriate resources are allocated for the health sector and to develop and implement comprehensive policies and programmes for improving the health situation of children. 76 Any deliberate retrogressive measures regarding the health sector for children would require the most careful consideration after assessing all other options and ensuring that children are the last affected, especially those in vulnerable situations.77 Standing parallel to the concept of progressive realisation is the concept of minimum core obligations of States.78 Therefore, the CRC Committee urges the States Parties to guarantee at all times the minimum level of protection in the provision of equal access to quality primary health care and essential foodstuffs.79

C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 124. WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 41. 74 For more detail on preventive measures see CRC Committee, General Comment No. 3, CRC/GC/ 2003/3, 2003, para. 20; General Comment No. 4, CRC/GC/2003/4, 2003, para. 28. 75 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 42. 76 See, e.g., CRC Committee, Concluding Observations: Philippines, CRC/C/15/Add.259, 2005, para. 59 b; Equatorial Guinea, CRC/C/15/Add.245, 2004, para. 47 d; Liberia, CRC/C/15/Add.236, 2004, para. 47 a; Pakistan, CRC/C/15/Add.217, 2003, para. 53 a; France, CRC/C/FRA/CO/5, 2016, para. 63; Algeria, CRC/C/15/Add.269, 2005, para. 58; Malawi, CRC/C/15/Add.174, 2002, para. 43; Bulgaria, CRC/C/BGR/CO/3-5, 2016, paras 40 et seq. 77 CRC Committee, Report on the forty-sixth session, CRC/C/46/3, 2008, para. 47; General Comment No. 19, CRC/C/GC/19, 2016, para. 31. 78 See CRC Committee, Report on the forty-sixth session, CRC/C/46/3, 2008, paras 88 et seq. Critical assessment with regard to the legitimacy of this concept by J Tobin, The Right to Health in International Law, 2012, p. 238-252; A Chapman, Global Health, Human Rights and the Challenge of Neoliberal Policies, 2016, p. 50-53. 79 CRC Committee, Report on the forty-sixth session, CRC/C/46/3, 2008, para. 89; General Comment No. 19, CRC/C/GC/19, 2016, para. 31. See also CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 73. 72

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1. Measures to Diminish Infant and Child Mortality (Article 24 para. 2 lit. a CRC) Article 24 para. 2 lit. a CRC is primarily concerned with the guarantee of primary health care to diminish infant and child mortality. The provision is modelled upon Article 12 para. 2 lit. a ICESCR. Neither provision demands that a State eradicate child or infant mortality rates as this would be an unrealistic and unattainable aim.80 However, the obligation to diminish does not bestow upon States Parties an exclusive power to determine the measures to be taken or not to be taken. Rather every reasonable measure has to be taken and efforts have to be strengthened in order to achieve a reduction in the infant and child mortality rates.81 One of the appropriate measures of primary health care includes the vaccination of children to prevent diseases in the short- and long-term. In some countries, diseases such as HIV/AIDS, hepatitis or tuberculosis raise child mortality significantly.82 The preventive examination for the early detection of diseases is thus also a constitutive part of primary health care, as well as the treatment of diseases. 83 16 Article 24 para. 2 lit. a CRC obliges States Parties to reduce infant and child mortality. The infant mortality rate describes the probability that a newborn baby will die within its first year of life. It is expressed as a number of children per 1,000 live births. 84 The mortality rate usually reflects the differences between social-economic classes. This is especially true for developing countries; but also within developed countries, there are social-economic classes in which the mortality rate is higher than in the general population.85 In developing countries, around 2.5 million children under the age of five years still die from vaccine-preventable diseases.86 The States Parties are therefore encouraged to keep statistics on infant and child mortality and improve epidemical data and its causes in order to combat the problem of infant mortality effectively. In the opinion of the CRC Committee, this includes even data on youth mortality.87 15

2. Provision of Medical Assistance and Health Care (Article 24 para. 2 lit. b CRC) 17

Pursuant to Article 24 para. 2 lit. b CRC, States Parties shall take appropriate measures to ensure the provision of necessary medical assistance and primary medical health care. On the basis of the Declaration of Alma-Ata, the final document of the 1978 International Conference on Primary Health Care,88 primary health care includes vital health care practiced on the basis of applied, scientifically sound and socially recognised methods and techniques that are accessible to each individual. Also preventive measures, medical treatment and rehabilitation measures are encompassed by primary health care, as is the education of people regarding existing health problems and their preventability, J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 938. See CRC Committee, Concluding Observations: Saint Vincent and Grenadines, CRC/C/15/Add.184, 2002, para. 35; Zambia, CRC/C/ZMB/CO/2-4, 2016, para. 48; Peru, CRC/C/PER/CO/4-5, 2016, para. 54; Belize, CRC/C/15/Add.252, 2005, para. 53; Haiti, CRC/CHTI/CO/2-3, 2016, para. 49. 82 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 127. 83 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 128. 84 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 303. See also UN Inter-agency Group for Child Mortality, Levels and Trends in Child Mortality, Report 2019, p. 4-5, 36 et seq. 85 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 47. 86 See WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 48. 87 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 33. 88 International Conference on Primary Health Care, Declaration of Alma-Ata, 6-12 September 1978. 80

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nutrition, safe water, and sanitation, and also regarding family planning.89 The CESCR Committee noted with respect to Article 12 ICESCR that a health system must fulfil the characteristics of availability, acceptability and quality.90 Also in regards to Article 24 para. 2 lit. b CRC, medical institutions and resources must therefore be present in sufficient numbers, so that they are physically and financially accessible to each person.91 The delivery of health services includes an obligation to ensure access to all the essential medicines.92 The CRC Committee also calls for a health care system of each State to provide information and advice on HIV/AIDS infection and to offer free or low-cost contraceptives.93 In countries where the disease is prevalent, children can be affected multiply by HIV/AIDS, either directly as sufferers themselves94 or indirectly as children of infected parents, in particular with regard to mother-to-child transmission. 95 The CRC Committee also notes with concern the increase in mental illness among children and young people, who should also be provided with the necessary health care, ideally without forced or compulsory medication.96

3. Measures Combating Malnutrition (Article 24 para. 2 lit. c CRC) Article 24 para. 2 lit. c CRC creates a relationship between health and appropriate nu- 18 trition. The obligation to combat malnutrition primarily affects developing countries, in which a large number of children die due to malnutrition, unclean drinking water, poor hygiene, infectious diseases, environmental pollution or a combination of several of these factors.97 A high number of under- or malnourished children can be found, for instance, in India.98 The term „malnutrition“ in Article 24 para. 2 lit. c CRC includes also undernutrition.99 Malnutrition is present when the child’s weight is more than two standard deviations below the average weight for the child’s age.100 Unlike in developing countries, where chronic undernutrition (stunting) and malnutrition still pose serious problems,101 undernutrition plays no significant role in industrialised countries, apart from adolescents suffering from anorexia and bulimia. Instead, for several years, there 89 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 36 et seq.; see also WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 57. 90 CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 ICESCR), E/C.12/2000/4, 2000, para. 12. 91 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 58. 92 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 37. 93 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 16, 20; General Comment No. 4, CRC/GC/2003/4, 2003, para. 28. 94 For more detail see CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, paras 62 et seq. 95 See., e.g., CRC Committee, Concluding Observations: Angola, CRC/C/AGO/CO/5-7, 2018, para. 31. More generally see WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 61. 96 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 38 et seq. 97 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 315. 98 As regards the Indian statistics see JA Gathia/SV Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 233 et seq. 99 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 71. See also CRC Committee, Concluding Observations: Angola, CRC/C/AGO/CO/5-7, 2018, para. 32. 100 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 128. 101 See, e.g., CRC Committee, Concluding Observations: Angola, CRC/C/AGO/CO/5-7, 2018, para. 32: Undernutrition (stunting) is associated with 45 per cent of child deaths in Angola. See also CRC Committee, Concluding Observations: Lao People’s Democratic Republic, CRC/C/LAO/CO/3-6, 2018, paras 16, 35.

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have been problems of lack of physical activity and unbalanced diets in children and adolescence. Both factors cause increasing overweightness, diabetes and cardiovascular disease.102 As a result, the term “malnutrition” within the meaning of Article 24 para. 2 lit. c CRC is now used for all manifestations that may arise due to inadequate nutrition, inadequate personal hygiene or reduced physical activity.103 Article 24 para. 2 lit. c CRC therefore includes situations of overeating and obesity as well as malnutrition and stunting.104 Most recently, also the UN General Assembly has declared the years 2016-2025 as “Decade of Action on Nutrition” with a particular focus on undernourishment, stunting, wasting, underweight and overweight in children under five years of age and anaemia in women and children.105 19 Exactly how much and what food is needed to prevent malnutrition, overeating or poor nutrition is determined on the basis of human food requirements. Accordingly, the nutrition has to be generally balanced, which means that it contains all constituents necessary for the development and growth as well as the physical activities that people naturally undertake during their lives.106 States Parties are obliged to take measures to enable and improve food diversity and adequate food intake. Especially for children and juveniles, an appropriate and balanced diet is of essential importance for their further physical and mental development.107 Therefore, the CRC Committee calls on the States Parties to increase the provision of school meals where a balanced diet is respected. 108 It furthermore stresses the need for States Parties to adopt and implement a national nutritional policy and ensure accessibility to markets and other venues which provide food.109 The CRC Committee has also drawn attention to childhood obesity and the impact of fast food on children’s health and has recommended that the marketing of such foods to children should be regulated and controlled.110 20 In combating malnutrition, the States Parties must also ensure that food is free of harmful substances. The States Parties are therefore obligated to take measures to prevent food from becoming unhygienic through contamination during the manufacturing process.111 Another problem is the misleading marketing of food that claims to promote good health in spite of questionable ingredients. Due to lack of experience, children are usually easier to influence through advertising than adults. Therefore, States Parties shall

102 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 73. 103 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 74. 104 See CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 47. Further see U Kilkelly, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 367, at 376. 105 See UN General Assembly Resolution 70/259, A/RES/70/259, 1 April 2016. 106 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 69. 107 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 Mn 75. 108 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 46. 109 See, e.g., CRC Committee, Concluding Observations: Nepal, CRC/C/NPL/CO/3-5, 2016, para. 49; Guatemala, CRC/C/15/Add.154, 2001, para. 43; Israel, CRC/C/15/Add.195, 2002, para. 44; Marshall Islands, CRC/C/15/Add.139, para. 46; Russian Federation, CRC/C/RUS/CO/3, 2005, para. 53. 110 CRC Committee, Concluding Observations: Brazil, CRC/C/BRA/CO/2-4, 2015, para. 58; South Africa, CRC/C/ZAF/CO/2, 2016, para. 54. 111 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 43; see also WB Eide/ A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 69.

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ensure that minors receive sufficient information and education in this regard.112 One prominent issue in the CRC Committee’s work with regard to Article 24 para. 2 lit. c CRC is the provision of clean drinking water. The CRC Committee has variously recommended that States ensure universal access to safe drinking water.113 Beyond these general recommendations, the CRC Committee has also specifically called upon States Parties to prioritise the construction and expansion of water infrastructure, by even seeking financial support from the World Bank.114 Furthermore, States Parties are obliged to apply readily available technology, in par- 21 ticular sanitation technology.115 Lack of sanitation is a constant cause of concern for the CRC Committee, given its potential to contribute towards the spread for numerous communicable diseases such as diarrhoea.116 It therefore repeatedly recommends that States ensure universal access to sanitation services and undertake all necessary measures to ensure adequate access to sanitation.117 According to Article 24 para. 2 lit. c CRC, the dangers and risks of environmental 22 pollution are also to be considered in all settings.118 Unclean water and poor hygiene are among the largest health problems in the world.119 To avoid impairment to health due to environmental influences, various standards have been developed at the international level which are significant in relation to Article 24 CRC and also in relation to Article 6 para. 2 CRC. In addition to several EU Directives on the matter,120 the WHO is significantly active in the setting of standards for the production of biological and pharmaceutical products.121 The CRC Committee calls upon States Parties to strictly regulate the use of hazardous materials such as lead, mercury or asbestos, so that they have no harmful effects on the health of children.122 The CRC Committee further recommends that States Parties undertake efforts that adequate housing, including non-dangerous cooking facilities, a smoke-free environment and an effective management of waste are provided for.123 States Parties should regulate the environmental impact of business activities and address climate change that may both compromise children’s right to health. 124

112 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 80. 113 See, e.g., CRC Committee, Concluding Observations: Belize, CRC/C/15/Add.252, 2005, para. 53; Nicaragua, CRC/C/15/Add.265, 2005, para. 48; Mongolia, CRC/C/15/Add.264, 2005, para. 44. 114 CRC Committee, Concluding Observations: Bangladesh, CRC/C/15/Add.211, 2003, para. 53; Georgia, CRC/C/15/Add. 222, 2003, para. 49. 115 For more detail see J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 942-944. 116 See, e.g., CRC Committee, Concluding Observations: Mongolia, CRC/C/15/Add.264, 2005, para. 43; Jordan, CRC/C/15/Add.125, 2000, para. 49; Sao Tome and Principe, CRC/C/15/Add.235, 2004, para. 44; South Africa, CRC/C/15/Add.122, 2000, para. 29. 117 CRC Committee, Concluding Observations: Haiti, CRC/HTI/CO/2-3, 2016, para. 49; Zimbabwe, CRC/C/ZWE/CO/2, 2016, para. 59; Nigeria, CRC/C/15/Add.257, 2005, paras 48-49; Belize, CRC/C/15/ Add.252, 2005, para. 53. 118 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 49. 119 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 70. 120 See, e.g., on water quality Directive 98/83/EC, OJ EC 1998, No. L 330, p. 32, last modified by Directive 2015/1787/EU, OJ EU 2015, L 260, p. 6., and on air quality Directive 2008/50/EC, OJ EC 2008, L 152, p. 1, last modified by Directive 2015/1480/EU, OJ EU 2015, L 226, p. 4. 121 See WHO Expert Committee on Biological Standardization, Seventieth report, WHO Technical Report Series No. 1024, 2019; WHO Expert Committee on Specifications for Pharmaceutical Preparations, Fifty-fourth report, WHO Technical Report Series No. 1025, 2020. 122 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 54. 123 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 49. 124 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 49-50.

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4. Measures for Health Care of Children and Parents, Especially Mothers (Article 24 para. 2 lit. d to lit. f CRC) Pursuant to Article 24 para. 2 lit. d CRC, the States Parties shall take measures to ensure appropriate pre-natal and post-natal health care for mothers. The aim of this provision is to protect developing life, without deciding the controversial and unresolved question of the overall or partial admissibility of abortion in connection with Article 1 and Article 6 CRC.125 The CRC Committee merely urges States Parties to decriminalise abortion to ensure that girls have access to safe abortion and post-abortion care services.126 Rather, Article 24 para. 2 lit. d CRC is about harm to the newborn child through a lack of care from the birth-giving mother on the one hand, and through a lack of public measures addressing pre-natal and post-natal care of mother and child on the other hand.127 States Parties enjoy a significant level of discretion with respect to the specific measure they adopt to fulfil their obligation to provide pre-natal and post-natal care. However, the CRC Committee urges that the services must be appropriate and effective.128 Insofar as Article 24 para. 2 lit. d CRC is geared towards the health care of the mother, the physical, mental and social well-being of the mother are constitutive elements.129 The prevention of premature birth, the provision of a clean environment for the birth and support to start breastfeeding immediately after birth fall, according to the CRC Committee, within the meaning of Article 24 para. 2 lit. d CRC. 130 Pre-natal care of the mother is considered particularly important because developmental disorders in the unborn child can be caused not only through mal- and poor nutrition, but also through the mother’s alcohol or drug abuse. The CRC Committee therefore urges States Parties to publish the consequences of such abuse to the public and to pregnant women.131 Finally, an important aspect in the pre- and post-natal care of mother and child is the problem of transmission of HIV/AIDS from mother to child;132 also in this regard, the CRC Committee requires the presence of public information, counselling and medical assistance.133 24 Article 24 para. 2 lit. e CRC obliges the States Parties to raise awareness of the primary needs of the child in the area of health care. In particular, parents or other legal guardians should be imparted with sufficient basic knowledge of the health and nutrition of a child.134 The dissemination of information can be achieved through the State’s education system or through a network of governmental and private health institu23

See → Article 1 mn. 7, → Article 6 mn. 5. See CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 70; General Comment No. 20, CRC/C/GC/20, 2016, para. 60. See also CRC Committee, Concluding Observations: Pakistan, CRC/C/PAK/CO/5, 2016, para. 52 b; Saudi Arabia, CRC/C/SAU/CO/3-4, 2016, para. 35. 127 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 130; WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 82 et seq. 128 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 54. 129 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 131. 130 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 52. 131 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 53; General Comment No. 15, CRC/C/GC/15, 2013, para. 54. 132 CRC Committee, Concluding Observations: Angola, CRC/C/AGO/CO/5-7, 2018, para. 31; see also WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 87. 133 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 25; General Comment No. 15, CRC/C/GC/15, 2013, paras 54 seq. 134 CRC Committee, General Comment No. 7, CRC/C/G/7/Rev.1, para. 27. 125

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tions.135 In addition, parents should be supported in the implementation of medical and nutritional knowledge.136 This also applies to breastfeeding and childrearing; States Parties shall take measures to support women who wish to breastfeed their infants, but who, because of cultural or social barriers cannot do so.137 Whether the States Parties actually need to make efforts to prolong infant breastfeeding, as the CRC Committee occasionally warrants,138 can be called into question with a view to the mother’s right to decide freely on her private life.139 In any case, the CRC Committee suggests that information about children’s health should be provided through different methods, including health clinics, parenting classes, professional bodies and the media.140 The preventive health care mentioned in Article 24 para. 2 lit. f CRC is, in addition to 25 recovery and rehabilitation, a constitutive part of primary health care, as required in the provisions of Article 24 para. 2 lit. b CRC. 141 Here, different prevention measures are included, ranging from information and education to concrete preventive measures to avoid health risks.142 This applies specifically in regards to sexually transmitted diseases, in particular HIV/AIDS. The CRC Committee indicates that the risk of HIV infection regularly increases in correlation to early marriage or unwanted pregnancy.143 States Parties shall therefore develop effective prevention programmes, including measures aimed at changing cultural views about adolescents’ need for contraception and HIV prevention and addressing cultural taboos surrounding adolescent sexuality.144 States Parties shall also adopt legislative or administrative measures to prevent the social exclusion or marginalisation of adolescent patients infected with or suffering from HIV/AIDS or other sexually transmitted diseases, and to minimise their risk of infection. 145 The CRC Committee urges States Parties to take measures to remove all barriers and taboos hindering the access of adolescents to information, preventive measures, such as condoms, and care.146 In addition to these preventive measures regarding social exclusion, Article 24 para. 2 lit. f CRC also encompasses the expansion of educational and family planning services, the information on contraceptives and on dangers of early pregnancy, the prevention of HIV/AIDS and other sexually transmitted diseases and the possibility 135 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 96. 136 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 88. 137 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 59 et seq. See also CRC Committee, Concluding Observations: Angola, CRC/C/AGO/CO/5-7, 2018, para. 33; Lao People’s Democratic Republic, CRC/C/LAO/CO/3-6, 2018, para. 35. 138 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 57, 62 et seq.; Concluding Observations: Belgium, CRC/C/BEL/CO/5-6, 2019, para. 31. 139 Similarly, S Lux, Die UN-Menschenrechtsausschüsse, Vereinte Nationen 2014, p. 208, at 211. Different assessment by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 24.23-24.24. 140 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 60-61. 141 See → Article 24 mn. 17. 142 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 62 seq.; see also WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 99. 143 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 20; General Comment No. 20, CRC/C/GC/20, 2016, paras 61-63. See also D König, in: E Klein (ed.), Globaler demographischer Wandel und Schutz der Menschenrechte, 2005, p. 222, at 236. 144 See CRC Committee, Concluding Observations: Poland, CRC/C/POL/CO/3-4, 2015, para. 39; Gabon, CRC/C/GAB/CO/2, 2016, para. 49; Angola, CRC/C/AGO/CO/5-7, 2018, para. 29; Lao People’s Democratic Republic, CRC/C/LAO/CO/3-6, 2018, para. 33. 145 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 30; General Comment No. 15, CRC/C/GC/15, 2013, para. 14. 146 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 26; General Comment No. 15, CRC/C/GC/15, 2013, para. 70.

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of safe abortions, regardless of the marital status.147 Such family planning services have a general influence on children’s health, because in families with many children the risk of poverty increases, and in families with fewer children, more can be invested in education and health of children.148 In addition, the CRC Committee encourages States Parties to recognise children in their sexual identities and to grant them access to medical measures such as HIV/AIDS testing or contraception, including without the consent of their parents or legal guardians.149 States should also ensure that appropriate goods and services for the treatment of sexually transmitted diseases, including HIV/AIDS, are available and accessible to adolescents.150 Moreover, States Parties are under an obligation to assist parents in providing parental support to facilitate the development of the adolescent regarding sexuality, sexual behaviour and risky lifestyle.151 States Parties should also enact law or regulations to ensure that confidential advice concerning treatment in sexual and reproductive health is provided to adolescents so that they can give their informed consent. 152 Finally, the CRC Committee stresses that there should be no barriers to commodities, information and services which allow for children to protect their sexual health and that particular efforts need to be made to overcome barriers or stigma and fear experienced by, for instance, lesbian, gay, bisexual, transgender and intersex adolescents, in gaining access to such services.153 Insofar as the potential tension with parental rights is at stake, the CRC Committee explains that as long as information is provided in a neutral, objective and age-appropriate way based on scientific evidence no violation against the rights of parents to the upbringing of their children will arise.154

V. Abolition of Traditional Harmful Practices (Article 24 para. 3 CRC) 26

Article 24 para. 3 CRC obligates States Parties to take appropriate measures to abolish traditional practices that are prejudicial and harmful to the child’s health and development. The drafting history reveals that the object and purpose of this norm are neither explicitly denigrating nor devalue a specific practice of culture, but rather to pursue the elimination of traditional practices, irrespective of their origin, that are

147 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 24; General Comment No. 15, CRC/C/GC/15, 2013, paras 24, 69; General Comment No. 20, CRC/C/GC/20, 2016, para. 61. 148 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 100. 149 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, paras 7, 30; General Comment No. 15, CRC/C/GC/15, 2013, para. 31. See also A Kron, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 114, at 123-124. 150 See CRC Committee, Concluding Observations: Nauru, CRC/C/NRU/CO/1, 2016, para. 47 a; Bulgaria, CRC/C/BGR/CO/3-5, 2016, para. 45 a; Poland, CRC/C/POL/CP/3-4, 2015, para. 39 a; Chile, CRC/ C/15/Add.173, 2002, para. 42; Zambia, CRC/C/15/Add.206, 2003, para. 51; Angola, CRC/C/AGO/CO/5-7, 2018, para. 29; Lao People’s Democratic Republic, CRC/C/LAO/CO/3-6, 2018, para. 33. 151 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 12. 152 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 29. See also CESCR Committee, General Comment No. 22: The Right to Sexual and Reproductive Health (Article 12 ICESCR), E/C.12/GC/22, 2016, para. 44. 153 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 60. See also CRC Committee, Concluding Observations: Hungary, CRC/C/HUN/CO/6, 2020, para. 32. 154 CRC Committee, General Comment No. 4, CRC/GC/2003/4, 2003, para. 22. See also CRC Committee, Concluding Observations: Suriname, CRC/C/SUR/CO/3-4, 2016, para. 31 b; Sierra Leone, CRC/C/SLE/CO/3-5, 2016, para. 32.

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prejudicial to the health of children.155 These practices include various traditional forms of violence against children in general, but especially against girls. In many societies, the prevailing view is that girls are inferior to boys; often the traditional practices are even understood (or disguised) as "protection" for girls.156 Both the CEDAW Committee and the CRC Committee have experienced predominantly harmful practices against girls, such as genital mutilation, forced marriage, forced feeding, breast ironing, virginity testing, scarring, burning, branding, accusation of witchcraft and other forms of violence committed in the name of an archaic cultural understanding of so-called "honour".157 Although often prohibited by national law, the harmful traditional practices in some States, for instance in Somalia and Guinea, are still prevalent as the legislation is not enforced and the practice is deeply ingrained in society.158 It is true that the preservation of religious, social and cultural values and traditions is 27 an important component of the right to identity of children under Article 7 CRC and, in principle, also forms part of the protection of cultural identity guaranteed in Article 30 CRC.159 However, the abovementioned practices are inconsistent and incompatible with the objective and the rights established by the CRC. Cultural identity can never excuse or justify the perpetuation by decision-makers and authorities of traditions and cultural values that deny the child the core rights of the Convention.160 All these practices reflect multiple and gross discriminations (predominantly by non-State actors) based on both sex and age.161 Furthermore, they are threatening the right to life, to survival and development of the girl child as enshrined in Article 6 CRC. 162 Accordingly, both the CEDAW Committee and the CRC Committee call in their first joint General Recommendation No. 31/General Comment No. 18 of 4 November 2014 for the implementation of a comprehensive strategy for the abolition of these harmful practices.163 All Contracting States are called upon to do so,164 since according to the findings of the two Committees, the harmful practices are represented almost worldwide. In some countries, where they

155 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 29-39. For a fuller account see J Tobin, Article 24, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 902, at 955-956. 156 For a fuller account see A Kron, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 114, at 117-121. 157 See, e.g., CRC Committee, Concluding Observations: Cyprus, CRC/C/15/Add.59, 1996, para. 16; Benin, CRC/C/15/Add.106, 1999, para. 6; Maldives, CRC/C/MDV/CO/3, 2007, para. 42; Uganda, CRC/C/UGA/CO/2, 2005, paras 53 et seq.; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 37; Zimbabwe, CRC/ CZWE/CO/2, 2016, para. 46; Burkina Faso, CRC/C/15/Add.193, 2002, para. 40. 158 As regards Somalia see CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.5. As regards Guinea see CRC Committee, Concluding Observations: Guinea, CRC/C/GIN/CO/3-6, 2019, para. 25. 159 See N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 604. 160 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 57. 161 CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, paras 16 seq.; see also S Lux, Rechte des Kindes: 65. bis 67. Tagung 2014, Vereinte Nationen 2015, p. 133, at 133. 162 N Peleg, The Child’s Right to Development, 2019, p.112 et seq.; N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 145. See also → Article 6 mn. 12. 163 CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 30. 164 CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 39.

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did not exist before, they had come through migration movements, in others, where they were no longer dominant, they were re-established by armed conflicts.165 28 The strategies to be taken by the States Parties to combat harmful practices are, in the view of the two Committees, to be discussed with traditional and religious leaders and to be adequately resourced. They should include improving the database of harmful practices, providing for effective sanctions against such practices and comprehensive preventive measures such as education on social standards, and enhancing victim protection and assistance.166 In addition, the CEDAW Committee has already determined that CEDAW has extraterritorial effects with regard to deportation cases where the girl may be subjected to female genital mutilation in the country of destination.167 Consequently, the rights of a girl under the CRC, in particular under Articles 19 and 24 para. 3 CRC, will be violated if she is deported to a country where she allegedly risks being forcefully subjected to female genital mutilation. The principle of non-refoulement, enshrined in international customary law, is applicable under the Convention and has extraterritorial effects in cases where the States Parties are obliged to protect children against any harm or violence.168 The CRC Committee therefore urges the States Parties that their legislation and policies relating to immigration and asylum should recognise the risk of being subjected to harmful practices or being persecuted as a result of such practices as a ground for granting asylum. Consideration should also be given to providing protection to a relative who may be accompanying the girl under the risk of being subjected to genital mutilation.169 Where reasonable doubts exist that the receiving State cannot or does not protect the child against such harmful practices, States Parties should refrain from deporting the child.170 In any event, the CRC Committee considers that the rights of the child not to be subjected to harmful and prejudicial traditional practices cannot be dependent on the parents’ ability to resist family and social pressures.171 29 As demonstrated, the main objective of Article 24 para. 3 CRC in the work of the CRC Committee is to prevent harmful practices against girls at all ages, in particular female genital mutilation.172 The potential consequences of such practices are manifold. They range from serious physical harm to mental illnesses such as depression.173 The 165 See CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 7. See also CRC Committee, Concluding Observations: Belgium, CRC/C/BEL/CO/5-6, 2019, para. 25; Malta, CRC/C/MLT/CO/3-6, 2019, para. 28. See also S Lux, Rechte des Kindes: 65. bis 67. Tagung 2014, Vereinte Nationen 2015, p. 133-134. 166 For more detail see CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31CRC/C/GC/18, 2014, paras 30 seq. 167 CEDAW Committee, M.N.N. v. Denmark, Decision adopted on 15 July 2013, CEDAW/C/55/D/33/2011, para. 8.10. 168 See CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, paras 11.3 et seq. 169 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.4. See also CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31CRC/C/GC/18, 2014, para. 19. 170 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.8 (c). 171 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.8 (b). See also → Article 19 mn. 12. 172 See CRC Committee, Concluding Observations: Ethiopia, CRC/C/ETH/CO/4-5, 2015, paras 47 et seq.; Germany, CRC/C/DEU/CO/3-4, 2014, para. 38; see also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 414 et seq. 173 WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 105.

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genital mutilation of girls, which mostly entails the complete detachment of the clitoris and the labia (so-called “pharaonic circumcision”), is based on the archaic and gender demeaning view that sexual pleasure of the female sex is to be permanently prevented. 174 It is cruel and unjustifiable mistreatment and ultimately an “extreme form of discrimination against women”.175 It is not without reason that, in addition to the CRC Committee,176 the CEDAW Committee, the UN General Assembly and the UN Human Rights Council are fighting female genital mutilation in the strongest terms.177 In contrast, the circumcision of boys is not the focus of Article 24 para. 3 CRC.178 The removal of the male foreskin does not regularly lead to a restriction of sexual sensation and can also even be justified medically in case of pathological phimosis.179 Furthermore, studies of the WHO and UNAIDS confirm that the removal of the foreskin can prevent HIV infection and probably also the development of penile cancer on the one hand and of cervical carcinoma in the sexual partner on the other hand.180 Presumably for this reason, the CRC Committee has so far been reluctant with any (negative) statements on male circumcision. Even in General Comment No. 15 (2013), which deals specifically with health issues,181 male circumcision is discussed at no point. Also, the Concluding Observations of the CRC Committee regarding various State reports do not address boy circumcision as being a prohibited measure.182 However, a prerequisite for the admissibility of male circumcision is that it is carried out under hygienic conditions and in accordance with the rules of medical science. The CRC Committee has referred to this issue repeatedly.183 As far as possible, the child must be involved in the decision process. The older and more mature the boy child is, the more seriously his view must be given weight.184

174 For more detail see Commission on Human Rights, Report of the UN Seminar in Burkina Faso, E/CN.4/Sub.2/1991/48, 1991, para. 27, and CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 18. Further see J Tobin, The Right to Health in International Law, 2012, p. 309 et seq. 175 See Circular of the German Federal Parliament (Bundestags-Drucksache) 17/11295, p. 14. 176 See CRC Committee, Concluding Observations: Ethiopia, CRC/C/ETH/CO/4-5, 2015, paras 47 et seq.; Germany, CRC/C/DEU/CO/3-4, 2014, para. 38. 177 See, e.g., CEDAW Committee, Concluding Observations: Egypt, CEDAW/C/EGY/CO/7, 2010, paras 41 et seq.; UN General Assembly Resolution 69/150, A/RES/69/150, 18 December 2014; Human Rights Council, Res. 27/22 of 26 September 2014. See also CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 18. 178 See S Rixen, Das Gesetz über den Umfang der Personensorge bei einer Beschneidung des männlichen Kindes, Neue Juristische Wochenschrift 2013, p. 257, at 259. 179 A Steinbach, Die gesetzliche Regelung zur Beschneidung von Jungen, Neue Zeitschrift für Verwaltungsrecht 2013, p. 550, at 551. 180 See WHO Recommendations from expert consultation on male circumcision for HIV prevention, of 28 March 2007; UNAIDS, HIV Prevention 2020 Road Map, 2017, p. 14; CRC Committee, Concluding Observations: Lesotho, CRC/C/15/Add.147, 2001, para. 44; J Tobin, The Right to Health in International Law, 2012, p. 312 et seq. Different opinion by T Walter, Der Gesetzentwurf zur Beschneidung – Kritik und strafrechtliche Alternative, JuristenZeitung 2012, p. 1110 et seq.; H Putzke, Recht und Ritual – ein großes Urteil einer kleinen Strafkammer, Medizinrecht 2012, p. 621, at 623. 181 See CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013. 182 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, para. 47; CRC/C/DEU/CO/3-4, 2014, paras 38 et seq. 183 CRC Committee, Concluding Observations: South Africa, CRC/C/15/Add.122, 2000, para. 33; Lesotho, CRC/C/15/Add.147, 2001, para. 43, Zambia, CRC/C/15/Add.206, 2003, paras 46 et seq. 184 See → Article 12 mn. 32.

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VI. Obligation to Promote International Cooperation (Article 24 para. 4 CRC) 30

The obligation of States Parties to promote and encourage international cooperation between States Parties targeted in Article 24 para. 4 CRC has been considered necessary during drafting in order to achieve far-reaching and optimum health protection for children on a universal level.185 The CRC Committee expressly refers to the obligation of States Parties not only to implement children’s rights to health within their own jurisdiction but also to contribute to global implementation through international cooperation and particularly highlights that the needs of developing countries are to be taken into due account.186 Indeed, the need for medical aid in developing countries is especially large.187 The CRC Committee therefore recommends that States Parties should cooperate in providing disaster relief and humanitarian assistance and target of allocating 0.7 per cent of gross national income to international development assistance.188 In that regard, the States Parties shall seek assistance and support of UN bodies, such as the WHO and UNICEF.189 Both organisations’ work in health includes the promotion of breastfeeding, the reduction of maternal and child mortality, the global immunisation of children, the eradication of poliomyelitis and of HIV/AIDS, and the provision of community water supplies.190 The role of these organisations in the implementation of the Convention rights is also reflected in Article 45 lit. a CRC. Furthermore, the term available resources for the rights of the child in the health sector shall include also resources available from the international community through international assistance via, for example, the provision of human resources, joint venture programmes, and enabling the access to international research literature which should complement the resources available at the national level.191

VII. Ecological/Eco-centric Children’s Rights 31

Closely related to the protection of the child’s right to health are the so-called ecological and eco-centric children’s rights. This aspect refers to the rights of children to protection from health and developmental disorders caused by negative environmental influences such as environmental pollution and climate change.192 Children shall, to the 185 Commission on Human Rights, Report of the Working Group, E/CN.4/1985/64, 1985, paras 34-36. See also WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 110. 186 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 86. 187 I Baer, Verabschiedung des UN-Übereinkommens über die Rechte des Kindes im November 1989 in New York, Familie und Recht 1990, p. 192, at 197. 188 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 87-89. See also CRC Committee, Concluding Observations: Antigua and Barbuda, CRC/C/15/Add.247, 2004, para. 52; Turkmenistan, CRC/C/TKM/CO/2-4, 2015, para. 45. 189 See, e.g., CRC Committee, Concluding Observations: Liberia, CRC/C/15/Add.236, 2004, para. 47; India, CRC/C/15/Add.228, 2004, para. 53. Further see WB Eide/A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 24, 2006, Article 24 mn. 112 et seq.; U Simon, (K)eine Politik für Kinderrechte?, Wege zur Verankerung der Menschenrechte von Kindern und Jugendlichen in der deutschen staatlichen Entwicklungszusammenabeit, 2012, p. 13 and 17. 190 Y Beigbeder, Children, in: T Weiss/S Daws (eds.), The Oxford Handbook on the United Nations, 2008, p. 511, at 517. 191 CRC Committee, Report on the forty-sixth session, CRC/C/46/3, 2008, para. 65; General Comment No. 19, CRC/C/GC/19, 2016, para. 75. 192 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 128; T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 569 et seq.

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largest possible extent, grow up in an ecologically intact environment in order that they can develop positive future prospects.193 In the Convention itself, ecological children’s rights are not explicitly mentioned. This is why, for instance, Australia takes the position that the Convention does not extend to protection from climate change. 194 In addition to Article 6 CRC, however, Article 24 CRC provides important programme-based guidelines, especially in Article 24 para. 2 lit. c CRC, which explicitly mentions dangers and risks of environmental pollution.195 The CRC Committee has considered the ecological children's rights, although without identifying them as such, so far only explicitly in its General Comment No. 15 (2013). 196 The CRC Committee thereby draws attention to the relevance of the environment to children’s health. Environmental interventions should, inter alia, address climate change, as this is one of the biggest threats to children’s health and exacerbates health disparities.197 Against this background, Greta Thunberg and 15 other young climate activists have recently filed an individual complaint with the CRC Committee in September 2019 alleging that Argentina, Brazil, France, Germany and Turkey have failed to meet their positive obligations under the CRC by not preventing foreseeable human rights violations that are directly related to global warming.198 However, it might well be questioned whether climate change and global warming really fall within the ambit of Article 24 para. 2 lit. c CRC. But since the norm has a flexible nature, the CRC Committee rightly buttresses the wide scope of environmental pollution to cover also climate change.199 In fact, the effects of climate change have an undeniable impact on children’s rights, for example, on the rights to life, survival and development, non-discrimination, health and an adequate standard of living.200 Nonetheless, in the CRC Committee’s Concluding Observations on State reports, en- 32 vironmental standards that are detrimental to the child’s development are only selectively mentioned, without making reference to a general context. For instance, with regard to Jamaica, the CRC Committee holds that it remains concerned about the problems of environmental degradation within the State Party, including air pollution and difficulties accessing clean water in a number of rural and inner-city areas.201 As regards Germany, to mention another example, only the negative effects of coal emissions have been criti193 See CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 5. A more expansive interpretation can be found by M Böhm, in: National Coalition (ed.), Ökologische Kinderrechte: das Recht des Kindes auf bestmögliche Entwicklung und Gesundheit, 1999, p. 37-43; S Kreuzinger/A Steneberg, in: National Coalition, National Coalition (ed.), Ökologische Kinderrechte, 1994, p. 12-21, at 13; JM Davis, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 33, at 46. 194 See CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/5-6, 2019, para. 40. 195 See also S Kreuzinger, in: National Coalition (ed.), Ökologische Kinderrechte, 1994, p. 27, at 29; E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mns. 33, 35. 196 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, paras 49 et seq. 197 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013, para. 50. See also CRC Committee, Concluding Observations: Cabo Verde, CRC/C/CPV/CO/2, 2019, para. 72-73; Australia, CRC/C/AUS/CO/5-6, 2019, paras 40 et seq. 198 See Communication to the CRC Committee in the case of Chiara Sacchi et al. v. Argentina et al. of 23 September 2019. 199 Similarly, T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 570; K Arts, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 216, at 220-221. 200 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/5-6, 2019, para. 40; Tuvalu, CRC/C/TUV/CO/2-5, 2020, para. 42. For more detail see C Bakker, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 449, at 451 et seq. 201 CRC Committee, Concluding Observations: Jamaica: CRC/C/132, 2003, para. 434. Similarly: CRC Committee, Concluding Observations: Slovakia, CRC/C/100, 2000, para. 582; Uzbekistan, CRC/C/UZB/CO/2, 2006, para. 54; Tonga, CRC/C/TON/CO/1, 2019, para. 47.

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cised by the CRC Committee.202 Other harmful emissions or pollutions have not been addressed, which is inconsistent.203 On a positive note, however, the CRC Committee held a “Day of General Discussion” on child rights and the environment in September 2016. This event generated significant interest, particularly from NGOs and children’s rights practitioners, who contributed to debates on the interrelationships between the environment and children’s rights.204 Yet, since State participation was rather sparse, the CRC Committee did not yet issue a General Comment on this theme which covers comprehensively the topic of ecological and environment-related children's rights. The same is true for the principle of intergenerational equity which does not appear in the Convention text either.205 All in all, the limited attention for environmental and sustainable issues in the CRC reflects the lesser urgency of environmental matters at the time of drafting. Given the increase in the nature and severity of environmental and climate challenges in recent decades, some authors regret that the Convention is not well equipped to address these issues.206 This view is, of course, only of a social-political nature and not based on the Convention text. It must be borne in mind that the CRC was not intended to be an instrument for protecting collective rights and to solve ecological and intergenerational problems, but was designed for guaranteeing individual children’s rights.

VIII. Embedding of Article 24 CRC into the System of International Human Rights Protection The right to protection of health can be found in numerous human rights instruments. Pursuant to Article 25 para. 1 UDHR, everyone has the right to a standard of living that guarantees, inter alia, their health, including food and medical care. Both Article 12 para. 1 ICESCR and its European counterpart, Article 11 ESC, stipulate the right to the highest attainable standard of physical and mental health.207 The Human Rights Committee expressly considers measures against malnutrition and child mortality as well as increasing life expectancy to be a State’s duty to protect flowing from Article 6 para. 1 ICCPR.208 Also, Article 5 lit. e (iv) ICERD sets out the right to health care without discrimination on grounds of race, and Articles 11 para. 1 lit. f and 12 CEDAW establish the right of every woman and girl to protection of health. 34 At the regional level, the EU is particularly concerned with the promotion of health care for the Roma. By 2020, Member States should ensure that Roma receive access to health prevention and care to the same extent and under the same conditions as the rest of the population. This applies in particular for the women and the children 33

See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 22. Critical assessment also by S Lux, Die UN-Menschenrechtsausschüsse, Vereinte Nationen 2014, p. 208, at 211 et seq. 204 T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 582. 205 Critical view by S Atapattu, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 167, at 184-185. 206 See E Desmet, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 192, at 197. Different assessment by K Arts, in: ibid. p. 216, at 223 et seq. 207 For more detail see CESCR Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health, E/C.12/2000/4, 2000, para. 9; ECSR, Defence for Children International v. Belgium, Decision adopted on 23 October 2012, No. 69/2011, paras 99 et seq. 208 Human Rights Committee, General Comment No. 6: The Right to life, HRI/GEN/1/Rev.9 (Vol. I), 1982, p. 176, para. 5; General Comment No. 36: The Right to life, CCPR/C/GC/36, 2018, para. 26. 202

203

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of the minority.209 Likewise, Article 11 ESC, Article 16 ACHPR, Article 14 ACRWC, and Articles 10 and 11 of the 1988 Protocol of San Salvador to the ACHR contain a provision addressing a right to enjoy the best attainable state of health. It is striking that Article 14 ACRWC contains a very similar provision to Article 24 CRC,210 and Articles 16 and 21 ACRWC also guarantee the right to protection from harmful cultural practices, including female genital mutilation and other harmful traditional customs and beliefs.211 Additionally, Article 35 of the EU Fundamental Rights Charter grants every person the right to access to health care and to medical treatment. Against this backdrop, Article 24 CRC supplements these provisions in that it recognises a specific right of the child to protection of health. This view has now been taken up by the Council of Europe, for example in the "Guidelines on Child-friendly Healthcare", which were adopted by the Committee of Ministers on 21 September 2011. 212 The European Convention on Human Rights does not contain an individual right to health care. However, the ECtHR recognises positive obligations of the Contracting States to adopt measures against life-threatening health risks.213 The ECtHR furthermore observes that in no circumstances should a child be deprived of his or her right of access to health care services on the grounds that he or she was born outside of a medical facility. The best interests of the child must 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.214 The problem of female genital mutilation has already and repeatedly been dealt with 35 by the CEDAW Committee, which strongly encourages States Parties to develop their health policy strategies in a way which prevents the genital mutilation of girls.215 Resolutions of the WHO also require States to strongly combat female genital mutilation. 216 Even more dedicated are the resolutions against female genital mutilation at the levels of the Council of Europe and the European Union.217 By contrast, male circumcision is usually regarded as being in conformity with the well-being of boys if it is carried out according to the rules of medical science.218

Communication of the European Commission of 5 April 2011, COM(2011) 173 final, p. 8. See U Kilkelly, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 367, at 371-372. 211 For more detail see E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 377. 212 For more detail see U Kilkelly, in: S Schmahl/M Breuer (eds.), The Council of Europe. Its Law and Policies, 2017, mn. 30.14. 213 ECtHR, Judgment of 23 March 2010, No. 4864/05, paras 71 et seq. – Oyal v. Turkey; Judgment of 24 April 2012, No. 19202/03 – Iliya Petrov v. Bulgaria; Judgment of 17 July 2014, No. 47848/08, paras 130 seq. – Valentin Câmpeanu v. Romania. 214 ECtHR, Judgment of 4 June 2019, No. 69489/12, para. 109 – Kosaite-Cypiene v. Lithuania. See also ECtHR, Judgment of 15 November 2016, Nos. 28859/11 and 28473/12, para. 64 – Dubská and Krejzová v. Czech Republic. 215 See, e.g., CEDAW Committee, Concluding Observations: Egypt, CEDAW/C/EGY/CO/7, 2010, paras 41 et seq. See also CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31CRC/C/GC/18, 2014, paras 30 seq. 216 World Health Assembly, Resolution on female genital mutilation, WHA61.16, 2008; Resolution on maternal and child health and family planning: traditional practices harmful to the health of women and children, WHA47.10, 1994. 217 See, e.g., PACE Resolution No. 1247/2001, of 22 May 2001. Further see the Resolutions of the European Parliament, 20 October 2011, OJ EU 2009, No. C 77E, p. 126; OJ EU 2010, No. C 117E, p. 52. 218 Commission on Human Rights, Report of the UN Seminar in Burkina Faso, E/CN.4/Sub.2/1991/48, 1991, para. 27. For more detail see J Tobin, The Right to Health in International Law, 2012, p. 313 et seq. 209

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[Placement]

Article 25 [Placement] States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of Article 25 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Embedding of Article 25 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7

I. Generalities Historically, the care of children, who are either without a family or unable to reside with their family for physical or mental health reasons, has generally been entrusted to foster carers or State or private institutions. Implicit in the practice was the assumption that the placement and corresponding treatment by the relevant authorities of such children were in their best interests.1 This assumption has however often served to divert attention from the abuse and suffering frequently experienced by children placed in care.2 Article 25 CRC recognises this risk and aims through the requirement of a periodic review to protect children in placements against abuse and to ensure the most appropriate form of care.3 2 On the one hand, Article 25 CRC obligates States Parties to periodically review the placement of the child and all circumstances relevant to his or her placement. Therefore, Article 25 CRC is closely related to Article 20 CRC which deals with the provision of alternative care to children who are permanently or temporarily deprived of their family environment.4 There are particularly close links to Article 20 para. 1 CRC, although according to this provision placement is not conditioned upon the personal characteristics of the child, but rather on its detachment from the family. The conditions placed upon childcare facilities in Article 20 para. 3 CRC are also applicable to those situations falling within the remit of Article 25 CRC. For example, independent experts must be present in psychiatric clinics which oversee drug treatment with psychostimulants in children and prevent children from being prematurely stigmatised as mentally ill.5 On the other hand, Article 25 CRC protects children who have been placed for the purposes of care, protection or treatment of their physical or mental health. The article thus also complements Article 23 and Article 24 CRC, as children with disabilities are mainly affected by a placement in terms of Article 25 CRC.6 In particular, children with severe psychosocial 1

1 J Tobin/E Luke, Article 25, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 970, at 970-971. 2 See, e.g., K Chadwick, The Politics and Economics of Intercountry Adoption in Eastern Europe, Journal of International Legal Studies 5 (1999), p. 113, at 131 et seq. 3 See CRC Committee, Concluding Observations: North Macedonia, CRC/C/MKD/CO/2, 2010, para. 48. Further see J Tobin/E Luke, Article 25, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 970, at 971. 4 See → Article 20 mns. 1 et seq. 5 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 59; Belgium, CRC/C/BEL/CO/5-6, 2019, para. 32; Japan, CRC/C/JPN/CO/4-5, 2019, para. 34; Australia, CRC/C/AUS/CO/5-6, 2019, para. 37; Austria, CRC/C/AUT/CO/5-6, 2020, para. 33. 6 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 303.

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impairments, but also children with attention deficit syndrome are often over hastily institutionalised.7 In contrast, children in conflict with the law who are placed in the juvenile justice system are not covered by Article 25 CRC;8 it is rather Article 37 lit. b CRC that applies to such cases.9 The same is true for refugee children who are placed in institutions by authorities for purposes unrelated to their care, protection or treatment of their health. Contrary to the view of the CRC Committee,10 they do not fall within the scope of Article 25 CRC but enjoy the protection offered under Article 22 CRC. 11

II. Scope of Article 25 CRC According to its clear wording, Article 25 CRC applies to those children who have 3 been placed in institutions by the competent State authorities. From the drafting history, it can be inferred that States intended the right to periodic review to be enjoyed by all children placed by competent authorities, irrespective of their parents’ or their own wishes or the duration of their placement.12 In contrast, it is not entirely clear whether informal placements executed at the instigation of parents or other carers or guardians are also covered by Article 25 CRC. Although considerable debate regarding this issue took place during the travaux préparatoires of the CRC,13 any widening of the scope of Article 25 CRC to include placements of a child on behalf of private persons was finally rejected.14 Yet, on the other hand, proposals during drafting which would have explicitly excluded such placements on behalf of non-State actors or private individuals were also not taken up in the final text of Article 25 CRC. In view of the rationale of the provision and the best interests principle under Article 3 CRC it is suggested that placements at the instigation of the parents or other carers may well fall within the scope ratione materiae of Article 25 CRC.15 A regular review of the placement shall ensure that the interests and rights of the child are not violated.16 Such a violation can, in fact, occur regardless of whether the placement of the child was effected at the request of individuals or the competent authorities. The CRC Committee therefore rightly recommends that in light of Article 25 CRC States Parties shall review the conditions of children living in an informal type of placement.17 Article 25 CRC requires States Parties to recognise the right to periodic review. 4 Although the term “recognise” indicates that States Parties enjoy a level of discretion with respect to the adoption of appropriate legislative, administrative or other measures

7 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 58 et seq. For more detail see → Article 24 mn. 3. 8 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 268. 9 See → Article 37 mns. 9 et seq. 10 CRC Committee, Guidelines for Reports Submitted by States Parties under the Convention, CRC/C/58, 1996, paras 86-87. 11 See → Article 22 mn. 10. See also S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 362; J Tobin/E Luke, Article 25, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 970, at 974-975. 12 Commission on Human Rights, Report of the Working Group, E/CN.4/1986/39, 1986, para. 60. 13 See Commission on Human Rights, Report of the Working Group, E/CN.4/1986/39, 1986, para. 52. 14 See C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 303. 15 Similar assessment by J Tobin/E Luke, Article 25, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 970, at 977. 16 See G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 270. 17 CRC Committee, Concluding Observations: Guinea, CRC/C/15/Add.100, 1999, para. 21; Qatar, CRC/C/QAT/CO/2, 2009, paras 46 et seq.; Japan, CRC/C/JPN/CO/4-5, 2019, paras 28-29.

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[Placement]

for the implementation of a right to periodic review,18 the measures taken must be effective and in accordance with the other rights set forth in the Convention. The CRC Committee expresses concern at the absence of a review procedure and recommends that States Parties adopt an effective review system and ensure that institutions and foster placements are monitored systematically and that irregularities are investigated and lead to appropriate changes or sanctions.19 5 According to Article 25 CRC, the review of a placement must be carried out periodically. This requirement aims at protecting children from a loss of identity (see Article 7 CRC), which can occur when the child is placed or cared for outside of their familiar home environment. A periodic review also minimises the danger of abuse and exploitation in the placement facility.20 Article 25 CRC does not impose a requirement that reviews occur at specific intervals, merely that they be periodic. The CRC Committee has not yet clarified the meaning of “periodic” neither. However, it is clear that the timeline between the various reviews shall not be arbitrarily long, but rather must comply with the principles of suitability and proportionality.21 Against this background, it is suggested that an initial review should occur within a few weeks of the placement. Subsequent reviews should take place after a couple of months, and certainly not years. 22 6 It is a weakness of the Convention that Article 25 CRC does not provide for an individual right to apply for a review. Rather, the State authorities must take the initiative to review the suitability of the placement and the treatment provided to the child ex officio, which is a situation not always corresponding to the wishes and expectations of the child, and which may also be in contradiction with the child’s right to express views in Article 12 CRC.23 Moreover, Article 25 CRC does not provide any rules as to the place, the substance and the procedure in which a review must take place. However, under the rule of law, it is necessary that the examining body is an independent body, preferably an independent court.24 Furthermore, States Parties must ensure that the relevant authorities for review have sufficient human, technical and financial means to carry out their mandate.25 The persons who perform the review must be suitably qualified to assess the necessity and suitability of the placement, favourably with the support of a multidisciplinary group of authorities.26 The review of a child’s placement should consider not only the necessity and the adequacy of the placement but also the appropriateness of the care and treatment.27 The review process should be directed, where possible, to returning children to their families of origin or to placing them in family-type forms of alternative care.28 Article 25 CRC remains silent with respect to 18 See J Tobin/E Luke, Article 25, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 970, at 973. 19 See, e.g., CRC Committee, Concluding Observations: Thailand, CRC/C/THA/CO/3-4, 2012, para. 42; Angola, CRC/C/AGO/CO/2-4, 2010, paras 41 et seq.; China, CRC/C/CHN/CO/2, 2005, para. 50; Romania, CRC/C/15/Add.199, 2003, para. 39; Madagascar, CRC/C/MDG/CO/3-4, 2012, paras 41-42. 20 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 303. 21 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 304. 22 Similar assessment by J Tobin/E Luke, Article 25, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 970, at 978-979. 23 Similarly, C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, S. 304 et seq. 24 CRC Committee, Concluding Observations: Canada, CRC/C/CAN/CO/3-4, 2012, para. 56 a. 25 CRC Committee, Concluding Observations: Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 42. 26 CRC Committee, Concluding Observations: Canada, CRC/C/CAN/CO/3-4, 2012, para. 56 a; Mongolia, CRC/C/15/Add.264, 2005, para. 34. 27 See Commission on Human Rights, Report of the Working Group, E/CN.4/1986/39, 1986, paras 52-56. 28 CRC Committee, Concluding Observations: Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 48 e; Guinea, CRC/C/GIN/CO/2, 2013, para. 62 b.

368

Art. 26

[Social Security]

whether the child in placement must be heard during the review process. However, such a right does result from Article 12 para. 2 CRC.29 The child’s views are, of course, not determinative as to the suitability of the child’s placement but they must be given due weight in accordance with the age and maturity of the child.30 In sum, the role of the State is to ensure the supervision of the safety, well-being and development of any child placed in alternative care and the regular review of the appropriateness of the care in a child-sensitive and objective manner.31

III. Embedding of Article 25 CRC into the System of International Human Rights Protection Article 25 CRC is unique in the system of international human rights protection. 7 There are no provisions similar to the rules of Article 25 CRC in other human rights treaties.32 The right to periodic review of the placement of the child has not even been duplicated in the African Charter on the Rights and Welfare of the Child. Article 5 para. 4 ECHR and Article 9 para. 4 ICCPR contain only provisions with regard to deprivation of liberty. Both standards thus correspond less to the substantive content of Article 25 CRC, but rather find their parallel in Article 37 lit. d CRC. However, Article 5 para. 1 lit. d ECHR obligates States Parties in situations of preventive detention to provide accommodation facilities which meet the preconditions necessary for safeguarding the child’s safety, upbringing, training and education.33

Article 26 [Social Security] 1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law. 2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right to Benefit from Social Security (Article 26 para. 1 CRC) . . . . . . . . . . . . . . . III. Configuration and Limitations of Social Security Benefits (Article 26 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 26 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7 8

29 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 305. See also → Article 12 mns. 16 et seq. 30 J Tobin/E Luke, Article 25, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 970, at 980-981. 31 See UN Guidelines for the Alternative Care of Children, A/HRC/11/L13, 15 June 2009, para. 5. Further see CRC Committee, Concluding Observations: Japan, CRC/C/JPN/CO/4-5, 2019, para 29. 32 See also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 438. 33 ECtHR, Judgment of 16 May 2002, No. 39474/98, para. 79 – D.G. v. Ireland.

369

Art. 26

[Social Security]

I. Generalities Social security is an indispensable asset for the realisation of the child’s welfare and best interests pursuant to Article 3 CRC. The rules laid down in Article 26 CRC have a strong relationship with Article 27 CRC, since a proper standard of living adequate for the development of the child is not conceivable without social security.1 Also, Article 23 CRC is complementary to Article 26 CRC although it does not expressly mention social security. But Article 23 para. 3 CRC makes clear that States Parties are obligated to provide assistance, subject to available resources, with the aim to achieve the fullest possible social integration of children with disabilities.2 2 The inclusion of a distinct right to social security in a Convention on children’s rights is unusual and somehow surprising, since children are rarely the direct beneficiaries of social security grants in national legislation. Against this backdrop, Article 26 CRC frames the child’s right to social security only as an indirect right.3 The article envisions that children might access social security indirectly through their parents and guardians. However, what is crucial is that a child’s rights perspective shall be embedded in the designing, implementation and monitoring of all social security systems. The CRC Committee has encouraged States Parties in this direction, although its approach is far from being systematic in that regard.4 1

II. Right to Benefit from Social Security (Article 26 para. 1 CRC) 3

According to Article 26 para. 1 CRC, the Contracting States recognise the right of every child to benefit from social security, including social insurance. Social security and social insurance benefits are to be understood as financial aid from the State, which becomes active in cases where the individual is, for whatever reasons, not or no longer capable to provide for him- or herself.5 These situations include, for example, loss of work income, accident-related or illness-related incapacity for work, disability, or periods of maternity leave or maternity protection.6 The CRC Committee maintains a broad understanding of social security and insurance and frequently refers to general social security systems, including child allowances and other universal and non-discriminatory benefits to poor families with children.7 The (former) distinction in domestic laws between social insurance, social security and social assistance has obviously lost

1 See C Mahler/P Follmar-Otto, Asylbewerberleistungsgesetz auf dem menschenrechtlichen Prüfstand, Zeitschrift für Ausländerrecht und Ausländerpolitik 2011, p. 378, at 381. See also→ Article 27 mns. 3 et seq. 2 See → Article 23 mn. 8. 3 M Langford/U Khaliq, Article 26, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 986, at 986. 4 Rightly so, W Vandenhole, Article 26, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 26, 2007, p. 14. 5 B Stormorken/L Zwaak, Human Rights Terminology in International Law: A Thesaurus, 1988, p. 117. 6 M Scheinin, in: Eide et al. (eds.), Economic, Social and Cultural Rights: A Textbook, 2 nd edn. 2001, p. 211, at 219. 7 See CRC Committee, Concluding Observations: Nepal, CRC/C/15/Add.261, 2005, para. 73; Belarus, CRC/C/BLR/CO/3-4, 2011, paras 63-64; Armenia, CRC/C/15/Add.225, 2004, para. 51; CRC/C/ARM/CO/ 3-4, 2013, para. 43; Greece, CRC/C/15/Add.170, 2002, paras 62 et seq.; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 73.

370

[Social Security]

Art. 26

much of its practical meaning in the context of human rights and thus also with regard to Article 26 para. 1 CRC.8 The wording of Article 26 para. 1 CRC essentially corresponds to that of Article 9 4 ICESCR, and the drafting of the Convention indicates that Article 26 CRC has to be interpreted in a manner compatible with Article 9 ICESCR.9 Therefore, like the CESCR Committee, also the CRC Committee is concerned with the availability and accessibility of an effective and efficient system of social security and recommends States Parties to give priority to the establishment of social security systems and the provision of increased material assistance and support to economically disadvantaged children and their families.10 In recent years, the CRC Committee also makes reference to the UN Sustainable Development Goals when considering the availability and accessibility of social security in the States Parties.11 However, there are differences as regards the beneficiaries of the rights to social secu- 5 rity. Article 9 ICESCR grants everyone a right to social security as opposed to Article 26 CRC, which provides only for the child’s right to benefit from social security. The formulation used in Article 26 CRC is based on the idea that a right to social security is regularly not claimed by the child, but rather by his or her parents or guardians. Article 26 CRC reflects the common position of children vis-à-vis social security systems as indirect beneficiaries via their parents or carers.12 The formulation of the provision makes clear that the right enshrined therein is only of an indirect, mediated nature. 13 Children are only entitled to benefit from rather than access social security. 14 According to Article 26 para. 1 CRC, the States Parties shall not only recognise for 6 every child the right to benefit from social security but also shall take the necessary measures to ensure the full attainment of the right to social security in accordance with their national law. This formulation is intended to express the progressive nature of the right under Article 26 CRC.15 It does not give the child a subjective right to social security benefits, but establishes merely a commitment of the State, which must be implemented in accordance with the conditions set forth in Article 4, sentence 2 CRC. 16 The reservation in favour of national law gives the States Parties a wide discretion.17 However, the CRC Committee has specified that Article 26 para. 1 CRC requires States Parties to review their legislation to ensure compatibility. They should adopt national 8 W Vandenhole, Article 26, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 26, 2007, p. 18; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 26.02. 9 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 439 et seq. 10 See CRC Committee, Concluding Observations: Burkina Faso, CRC/C/BFA/CO/3-4, 2010, para. 63; Tanzania, CRC/C/TZA/CO/2, 2006, para. 54; Kenya, CRC/C/KEN/CO/2, 2007, para. 56; Malawi, CRC/C/MWI/CO/2, 2009, para. 61; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 65. 11 CRC Committee, Concluding Observations: Sri Lanka, CRC/C/LKA/CO/5-6, 2018, para. 37; Spain, CRC/C/ESP/CO/5-6, 2018, para. 38. 12 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 241. 13 Commission on Human Rights, Report of the Working Group, E/CN.4/1984, 1984, para. 81; see also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 447. 14 M Langford/U Khaliq, Article 26, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 986, at 986. Different assessment by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 26.03. 15 Commission on Human Rights, Report of the Working Group, E/CN.4/1984/71, 1984, p. 83 et seq., 87. 16 See → Article 4 mns. 20 et seq. 17 See Commission on Human Rights, Report of the Working Group, E/CN.4/1984/71, 1984, paras 84, 90, 92, E/CN.4/1989/48, 1989, paras 437, 440-443.

371

Art. 26

[Social Security]

plans of action, identify possible measures and monitor with sufficient data.18 States Parties should also offer adequate social security and social protection to street children, as they are a particularly vulnerable group of children.19 Furthermore, the CRC Committee highlights that the principle of non-discrimination (Article 2 CRC) has to be applied to social security schemes and notes the role of a social security system in dampening the rising inequalities in income.20

III. Configuration and Limitations of Social Security Benefits (Article 26 para. 2 CRC) 7

The rules regarding the design, the configuration and the limitations set out in Article 26 para. 2 CRC were a controversial issue in the drafting history of the CRC. 21 The clause according to which social security benefits should, where appropriate, be granted, taking into account the individual situation of the child and the family as well as other considerations, finally found advocacy in the drafting, as it promised a specification of the obligations laid down in Article 26 para. 1 CRC.22 The aim was to create a normative opportunity to provide social security services to those who are in urgent need of them.23 However, three caveats apply to this. Firstly, the child’s right to benefit from social security is dependent of those caring for or with responsibility for the child. Their resources should be primarily taken into account; social security schemes must neither be universal nor general. Secondly, a parent or guardian receiving a child’s entitlement to benefits is granted these solely by reason of their responsibility for the child and for the child’s best interests. Thus, they must have a significant (direct or indirect) impact on the child.24 Thirdly, the reference to the resources of a child’s parents and guardians in Article 26 para. 2 CRC does not exclude the operation of Article 4 CRC.25 States obligations pursuant to Article 26 CRC are qualified by their available resources. However, the CRC Committee constantly emphasises that the States Parties need to demonstrate that they have implemented their available resources to the maximum extent in order to ensure the widest possible enjoyment of the child’s rights.26 Any backsliding and retrogressive measures are not in conformity with the Convention.27 All in all, Article 26 para. 2 CRC is of rather limited significance in practice, since Article 26 para. 1 CRC through the reference to national law gives States Parties significant leeway.

CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 18. CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 51. 20 CRC Committee, Concluding Observations: Nicaragua, CRC/C/NIC/CO/4, 2010, para. 69. 21 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 445-447, 452. 22 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 446. For more detail see M Langford/U Khaliq, Article 26, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 986, at 1010-1012. 23 Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 447. 24 See CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, paras 13-14; General Comment No. 14, CRC/C/GC/14, 2013, paras 19-20. 25 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 370; M Langford/U Khaliq, Article 26, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 986, at 1012. 26 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 7-8. 27 See → Article 4 mn. 26. 18

19

372

[Social Security]

Art. 26

IV. Embedding of Article 26 CRC into the System of International Human Rights Protection A general right to social security benefits was first recognised in the non-binding 8 standards of Article 22, read in conjunction with Article 25 UDHR. While Article 22 UDHR stipulates the basic right of everyone to social security, Article 25 UDHR establishes a more detailed provision through the enumeration of specific groups in need of social security benefits. Moreover, Article 25 para. 1 UDHR also contains the right to an adequate standard of living, which is regulated separately in Article 27 CRC.28 The ICESCR also separates the right to social security (Article 9 ICESCR) and the right to an adequate standard of living (Article 11 ICESCR). With regard to the former, the CESCR Committee adopted General Comment No. 19 on the Right to Social Security in 2008,29 which establishes a landmark standard representing the first international attempt to analyse the scope and content of the right to social security and corresponding State obligations.30 Furthermore, the right to social security is found in various international treaties that have the fight against discrimination as their main objective, as, for instance, Article 5 ICERD, Article 11 para. 1, Article 14 para. 2 CEDAW and Article 26 ICRPD. However, few of these provisions specifically consider a child to be a (direct or indirect) beneficiary of the right to social security; they rather refer to everyone as beneficiary. On the other hand, Article 26 CRC is closely connected to the work of the Inter- 9 national Labour Organisation. The ILO Conventions on social security are of great importance for the application and interpretation of Article 26 CRC. The flagship ILO Convention No. 102 (1952)31 establishes minimum standards for social security benefits. It contains a list of nine basic categories (pillars) that trigger the need for social security benefits. More recent ILO Conventions also address the issue of providing social security, such as ILO Conventions Nos. 121, 128 and 130. Finally, the ILO General Conference adopted, in 2012, Recommendation No. 202 concerning “National Floors of Social Protection”, which fuses the traditional social security approach with a human-rights-based approach, and “basic income security for children” is notably the second of the four social protection floors.32 At the regional level, the situation is similar. Several treaties guarantee the right to 10 social security benefits. Article 26 ACHR, for example, contains a general obligation upon States Parties to ensure progressive development of, inter alia, economic and social standards. Articles 18, 22, and 27 ACHPR also concern the right to social security. Article 12 ESC contains a comprehensive right to social security benefits. Article 34 of the EU Charter of Fundamental Rights does not establish an independent right to social security but the European Union recognises and respects the entitlements to social security benefits and services providing protection in national law. It remains however unclear in the case-law of the CJEU whether the refusal of social benefits (social assistance and child benefit) may lawfully put economic pressure on third-country parents to leave the country although they are responsible for the conditions of living necessary for their children's development. In the relevant case Chavez Vilchez (2017), the CJEU See → Article 27 mns. 1 et seq. CESCR Committee, General Comment No. 19: The Right to Social Security, E/C.12/GC/19, 2008. 30 For more detail see M Langford/U Khaliq, Article 26, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 986, at 988. 31 Convention Concerning Minimum Standards of Social Security, adopted 28 June 1952, entered into force 27 April 1955. 32 Recommendation No. 202, adopted at the 101st ILO Session, 14 June 2012, para. 5. 28

29

373

Art. 27

[Development of the Child]

only clarified the preliminary questions on the right of residence and emphasised that the third-country parent must be granted a residence permit if the children (citizens of the Union) would otherwise have to leave the EU.33 On the other hand, the CJEU has made it clear that, under Article 29 of the EU Qualification Directive 2011/95, refugees and beneficiaries of international protection with a right of residence in a Member State, whether permanent or temporary, are to receive, in the Member State that has granted such protection, the same social assistance and security benefits as provided to nationals of that Member State.34 11 Finally, Article 3 ECHR may also be relevant because it establishes a positive duty on States Parties to grant social security benefits for those who are in fundamental need.35 If, for instance, a refugee is still in the asylum procedure, the ECtHR stresses that Article 3 ECHR obliges the States to grant the person access to social benefits in order to prevent impending homelessness due to total impoverishment.36 However, none of the aforementioned human rights treaties expressly extends the right to social security to children. Even the African Charter on the Rights and Welfare for the Child makes no express reference to social assistance.

Article 27 [Development of the Child] 1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development. 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

33 CJEU, Judgment of 10 May 2017, Case C-133/15, ECLI:EU:C:2017:354, paras 73 et seq. – Chavez Vilchez. Further see → Article 10 mn. 18. 34 CJEU, Judgment of 1 March 2016, Case C‑443/14 and C‑444/14, ECLI:EU:C:2016:127, para. 48 – Alo and Osso; Judgment of 21 November 2018, Case C-713/17, ECLI:EU:C/2018:929, paras 18 et seq. – Ayubi. 35 For a fuller account see S Schmahl/T Winkler, Schutz vor Armut in der EMRK?, Archiv des Völkerrechts 48 (2010), p. 405-430. 36 ECtHR, Judgment of 7 July 2015, No. 60125/11 – V.M. v. Belgium. For more detail see M Lehnert, Menschenrechtliche Vorgaben an das Aufenthaltsrecht in der jüngeren Rechtsprechung des EGMR, Neue Zeitschrift für Verwaltungsrecht 2016, p. 896, at 898.

374

Art. 27

[Development of the Child] I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right to an Adequate Standard of Living (Article 27 para. 1 CRC) . . . . . . . . . . . III. Configuration of the Right to Adequate Standard of Living (Article 27 para. 2 to para. 4 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Primary Responsibility of Parents (Article 27 para. 2 CRC) . . . . . . . . . . . . . . . 2. States’ Obligation to Assist Parents (Article 27 para. 3 CRC) . . . . . . . . . . . . . . 3. States’ Obligations to Secure Recovery of Parental Maintenance (Article 27 para. 4 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 27 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 6 6 8 11 15

I. Generalities Article 27 CRC contains the right of the child to an adequate standard of living and 1 thus has a great proximity to Article 26 CRC and Article 6 CRC, both of which concern the child’s physical, mental, spiritual, moral and social development.1 In particular with regard to children in the context of international migration, the CRC Committee highlights the close interrelation between Articles 6 para. 2 CRC and Article 27 para. 1 CRC. States Parties should ensure that all children, including those in the context of international migration, have a standard of living adequate for their physical, mental, spiritual and moral development.2 The right of the child to an adequate standard of living goes beyond the purely material aspects of living such as adequate food, clothing and housing, as foreseen in Article 11 para. 1 ICESCR.3 Under Article 27 CRC, the child is entitled to enjoy conditions of an adequate standard of living which improves his or her everyday quality of life and facilitate his or her holistic development into a fully and well-functioning adult-person.4 This includes some critical environmental dimensions, such as the protection from air pollution.5 Thus, while the rights to an adequate standard of living contained in Article 11 para. 1 ICESCR are an end in and of themselves, Article 27 CRC sets out a right to a child’s standard of living adequate and instrumental to bring about the child’s overall development.6 Connections and overlaps of Article 27 CRC are also present in regards to Article 5 2 and Article 18 CRC. Both provisions deal with the parents' right to raise and educate children, thereby promoting the child's development in accordance with his or her individual abilities. It is further considered as certain that any form of physical or psychological violence affects the development of the child – and indirectly the society as a whole. Article 27 CRC has therefore also close links to the rules contained in Article 19 CRC. 7 Finally, the child’s right to nutrition and housing in Article 27 para. 3 CRC has a clear N Peleg, The Child’s Right to Development, 2019, p.126-127. CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 43; CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 49. 3 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 444 et seq. 4 See CRC Committee, Concluding Observations: Spain, CRC/C/ESP/CO/3-4, 2010, para. 52; Sudan, CRC/C/SDN/CO/3-4, 2010, para. 60; Latvia, CRC/C/15/Add.142, 2000, para. 42; see also A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 27, 2006, Article 27 mn. 1 et seq. 5 See CRC Committee, Concluding Observations: Pakistan, CRC/C/133, 2004, paras 224 et seq. See also → Article 24 mn. 22. 6 A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1023-1024. 7 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 15 et seq. 1

2

375

Art. 27

[Development of the Child]

reference to Article 24 lit. c and Article 6 CRC.8 It is therefore astonishing, if not inconsistent, that the CRC Committee has so far never made any clear reference to Article 27 CRC when discussing the child’s right to the enjoyment of the highest standard of health.9

II. Right to an Adequate Standard of Living (Article 27 para. 1 CRC) The Fourth Principle of the 1959 Declaration of the Rights of the Child,10 which contains a (non-binding) right to adequate food, shelter, leisure, recreation and health care, served as a starting point for the formulation of Article 27 CRC in the drafting process of the Convention.11 The provision is however more specific than the 1959 Declaration, since Article 27 paras 2 to 4 CRC contain a more detailed configuration of the child’s right to adequate living standards within the meaning of Article 27 para. 1 CRC.12 4 In contrast to many other human rights guarantees, which grant a right to adequate living standards to everyone,13 the special feature of Article 27 para. 1 CRC is that there is a causal nexus between an adequate standard of living and the child’s physical, mental, spiritual, moral and social development.14 On the one hand, this makes clear the inseparable interdependence between an adequate standard of living and physical as well as psychological aspects.15 On the other hand, Article 27 para. 1 CRC creates an adaptable right, which places individual requirements in the foreground and thereby contributes to the greatest possible protection of the individual child. Unlike Article 26 para. 1 CRC, Article 27 para. 1 CRC deliberately refrains from references to national legislation in order to avoid a weakening of the rule set out in Article 27 para. 1 CRC.16 Article 27 para. 1 CRC contains a subjective and directly applicable right of the child.17 5 The assessment as to the adequacy of children’s standard of living under Article 27 para. 1 CRC cannot be reduced to exclusively economic indicators. Instead, it includes all features of the child’s living conditions that are adequate for the child’s development.18 Article 27 para. 1 CRC implies as a minimum that adequate nutrition, clothing and housing must fall under the umbrella of the child’s right to an adequate 3

See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 27.07. Critical assessment also by A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1025. 10 See → Introduction mn. 14. 11 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 457. 12 Commission on Human Rights, Report of the Working Group, E/CN.4/1985/64, 1985, para. 43. 13 See → Article 27 mns. 15 et seq. 14 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 317, C Mahler/P Follmar-Otto, Asylbewerberleistungsgesetz auf dem menschenrechtlichen Prüfstand, Zeitschrift für Ausländerrecht und Ausländerpolitik 2011, p. 378, at 381. 15 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 15. 16 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 457. 17 See Higher Social Court Stuttgart, Judgment of 27 October 2011, L 7 AY 3998/11 ER-B. See also U Simon, (K)eine Politik für Kinderrechte?, Wege zur Verankerung der Menschenrechte von Kindern und Jugendlichen in der deutschen staatlichen Entwicklungszusammenarbeit, 2012, p. 9. 18 A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1028. 8

9

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[Development of the Child]

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standard of living.19 The CRC Committee also integrates the child’s right to water and sanitation into its statements on Article 27 CRC.20 Furthermore, there is obviously a close correlation between living in poverty and being denied an adequate standard of living.21 The CRC Committee has, on various instances, expressed concern that the living conditions of children in situations of extreme poverty massively impede the holistic development of children’s capacities, as envisaged by Article 27 CRC.22 In particular, children living in street situations suffer from a multidimensional violation of their rights to an adequate standard of living and to development.23 On occasion, the CRC Committee has further stated that Article 27 CRC requires States Parties to also take measures to secure the continuous improvement in children’s living conditions.24 All in all, Article 27 para. 1 CRC entitles children to enjoy conditions which facilitate their development into fully capable and well-functioning individuals. The CRC Committee underscores that the right to an adequate standard of living aims at guaranteeing a holistic and optimal development of the child.25

III. Configuration of the Right to Adequate Standard of Living (Article 27 para. 2 to para. 4 CRC) 1. Primary Responsibility of Parents (Article 27 para. 2 CRC) Article 27 para. 2 CRC is closely aligned with Article 18 para. 1 and Article 5 CRC in 6 that it removes any doubt as to who has primary responsibility for the care of children: it is parents, including the extended family, and other persons or carers responsible for the child.26 The main purpose of Article 27 para. 2 CRC is to protect parents and other carers from excessive interference or intervention by the State. 27 In a second line, the 19 See CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 20; General Comment No. 9, CRC/C/GC/9, 2006, para. 3. See also CRC Committee, Concluding Observations: Togo, CRC/C/TGO/CO/3-4, 2012, para. 61; Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 55; Mozambique, CRC/C/MOZ/CO/3-4, 2019, paras 38 et seq. 20 See CRC Committee, Concluding Observations: Burundi, CRC/C/BDI/CO/2, 2010, para. 61; Guatemala, CRC/C/GTM/CO/3-4, 2010, paras 76 et seq.; Turkmenistan, CRC/C/TKM/CO/2-4, 2015, para. 53; Fiji, CRC/C/FJI/CO/2-4, 2014, para. 58 a; Togo, CRC/C/TGO/CO/3-4, 2012, para. 62. 21 A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1032. For a fuller account see A Nolan, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 404, at 410 et seq. 22 See, e.g., CRC Committee, Concluding Observations: Georgia, CRC/C/GEO/CO/3, 2008, para. 55; Dominican Republic, CRC/C/DOM/CO/2, 2008, para. 69; Venezuela, CRC/C/VEN/CO/2, 2007, para. 65; Norway, CRC/C/MNG/CO/3-4, 2010, para. 46; Portugal, CRC/C/PRT/CO/5-6, 2019, para. 38. See also CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 26; General Comment No. 20, CRC/C/GC/20, 2016, paras 66-67; General Comment No. 21, CRC/C/GC/21, 2017, para. 51. 23 See CRC Committee, Concluding Observations: Azerbaijan, CRC/C/AZE/CO/2, 2006, para. 64; Burkina Faso, CRC/C/BFA/CO/3-4, 2010, para. 71; Senegal, CRC/C/SEN/CO/3-5, 2016, para. 68; General Comment No. 21, CRC/C/GC/21, 2017, para.31. See further N Peleg, The Child’s Right to Development, 2019, p.127-129. 24 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 3. Critical view towards this tendency of the CRC Committee: A Nolan, Economic and Social Rights, Budgets and the Convention on the Rights of the Child, International Journal of Children’s Rights 21 (2014), p. 245, at 248. 25 See CRC Committee, Concluding Observations: Japan, CRC/CJPN/CO/3, 2010, para. 67; Finland, CRC/C/FIN/CO/4, 2011, para. 57; Namibia, CRC/C/NAM/CO/2.3, 2012, para. 45. See also CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 5. 26 See CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 44. For a fuller account see A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1040-1041. 27 Commission on Human Rights, Report of the Working Group, E/CN.4/L.1575, 1981, para. 91.

377

Art. 27

[Development of the Child]

provision underlines that parents and other persons responsible for the care bear the main responsibility for the living conditions and the development of the child.28 Parents have thus a margin of appreciation on how to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development before any State intervention can take place.29 This margin of discretion given to parents and other carers ceases only where the State is obliged to intervene because the child’s well-being will be at risk.30 The possibility that the primary responsibility of parents to care for the child clashes with the reality of parents’ personal circumstances is taken into account in Article 27 paras 2 and 3 CRC by the inclusion of the phrase “within their abilities and financial capabilities”.31 7 Although the Convention does not expressly link Article 27 para. 1 CRC to the requirements of Articles 9 and 20 CRC, it is clear that there is a connection between both provisions in order to prevent the child from being taken in alternative care only for reasons of socioeconomic poverty of the parents.32 The CRC Committee puts very clearly that financial and material poverty should never be the only justification for the removal of a child from parental care and for receiving the child into alternative care, but should be rather seen as a signal for the need to provide appropriate support to the family.33 States Parties should take appropriate measures to assist parents and other carers which aim at facilitating employment of parents or provide material assistance according to Article 27 para. 3 CRC.34

2. States’ Obligation to Assist Parents (Article 27 para. 3 CRC) 8

Article 27 para. 3 CRC stipulates the subsidiary obligation of the States Parties to support and assist the parents bearing the primary responsibility for the child. Unlike Article 27 para. 1 CRC, which contains a subjective right of the child to an adequate standard of living, Article 27 para. 3 CRC, in contrast, is qualified by the phrase “in accordance with national conditions and within their means”. Thus, the norm makes explicit reference to national law and conditions of the States Parties and establishes a link to the reservation of available resources in Article 4, sentence 2 CRC. However, the States Parties must ensure that the measures they adopt are appropriate, conducive and sufficient to enable the parents, guardians or other custodial persons to realise the right of the child to an adequate standard of living.35 Although States Parties enjoy a certain level of discretion in implementing their obligations under Article 27 para. 3 CRC, such discretion is not unlimited.36 States Parties must be able to demonstrate that any measures they choose result in improvements in the child’s right to an adequate 28 Commission on Human Rights, Report of the Working Group, E/CN.4/1985/64, 1985, paras 41, 48; E/CN.4/L.1575, 1981, para. 91. See also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 459. 29 A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 27, 2006, Article 27 mn. 50. 30 See → Article 9 mn. 5. 31 A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1941. 32 Similarly, K Sandberg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 187, at 192. 33 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013, para. 62; Concluding Observations: Sierra Leone, CRC/C/SLE/CO/3-5, 2016, para. 25; Suriname, CRC/C/SUR/CO/3-4, 2016, para. 24. 34 See also → Article 20 mn. 8. 35 A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 27, 2006, Article 27 mn. 75. 36 See CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 49.

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standard of living.37 In this regard, States Parties must adopt a holistic approach. The CRC Committee explains that measures which are primarily of a monetary and economic nature such as tax deductions or child allowances, while appropriate, do not fully address the needs of parents to increase their parenting capacities by learning about the development needs of children.38 Even in times of economic crisis, the level of enjoyment of children’s rights must not deteriorate. At least, such regressive measures may only be considered after assessing all other options and ensuring that children are the last to be affected, especially children in vulnerable situations.39 Targeted financial assistance, such as child and parental allowance and household 9 social benefits, increased family orientation in the workplace, income enabling measures and the development of an infrastructure of care and support for children of all ages, place children at the centre of a poverty-reduction family policy under Article 27 para. 3 CRC, which is strongly endorsed by the CRC Committee.40 The same applies to help and care for homeless children.41 Furthermore, the CRC Committee repeatedly recommends a vast number of measures to address poverty in the context of giving effect to Article 27 para. 3 CRC, such as ensuring access to clean water, adequate sanitation, food and shelter, the allocation of adequate human, technical and financial resources to provide support to families and the provision of infrastructure and multi-sectoral coordination.42 In urging States Parties to implement poverty amelioration and development strategies, the CRC Committee emphasises that these should be child-rights-informed and -compliant, which also includes that both children and parents as well as NGOs should be encouraged to participate in the development of poverty-alleviation strategies.43 In addition, the CRC Committee stresses the need for measures of assistance to be targeted at particularly vulnerable groups, such as children with disabilities, minority children, children in rural or remote areas, children in street situations and children of families of foreign origin, including migrant and refugee children.44 In particular, the CRC Committee deplores the shortcomings in emergency, first- and second-level reception centres for unaccompanied children and the lack of adequate information and social activities for children.45 In sum, the CRC Committee makes it clear that it regards CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 27 a. CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 37. 39 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, para. 31. 40 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, para. 51. 41 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, para. 59. 42 See, e.g., CRC Committee, Concluding Observations: Tajikistan, CRC/C/TJK/CO/2, 2010, para. 59; Djibouti, CRC/C/DJI/CO/2, 2008, para. 61; Grenada, CRC/C/GRD/CO/2, 2010, para. 50; Mauritania, CRC/C/MRT/CO/2, 2009, para. 64; Bhutan, CRC/C/BTN/CO/2, 2008, para. 57; Eritrea, CRC/C/ERI/CO/3, 2008, para. 65; Cameroon, CRC/C/CMR/CO/2, 2010, para. 54; Bolivia, CRC/C/BOL/CO/4, 2009, para. 62. For a fuller account see A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1034. 43 See CRC Committee, Concluding Observations: Burkina Faso, CRC/C/BFA/CO/3-4, 2010, para. 63; Eritrea, CRC/C/ERI/CO/3, 2008, para. 64; Serbia, CRC/C/SRB/CO/1, 2008, para. 59; Philippines, CRC/C/PHL/CO/3-4, 2009, para. 5; Hungary, CRC/C/HUN/CO/2, 2006, para. 47 c. 44 See, e.g., CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 3; General Comment No. 20, CRC/C/GC/20, 2016, para. 76; General Comment No. 21, CRC/C/GC/21, 2017, para. 50; Concluding Observations: Romania, CRC/C/ROM/CO/4, 2009, para. 75; Slovakia, CRC/C/SVK/CO/2, 2007, paras 55 et seq.; Slovenia, CRC/C/SVN/CO/3-4, 2013, paras 58 et seq.; Morocco, CRC/C/MAR/CO/ 3-4, 2014, para. 59; Indonesia, CRC/C/IND/CO/3-4, 2014, para. 58; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 73; Liberia, CRC/C/LBR/CO/2-4, 2012, para. 71; Sri Lanka, CRC/C/LKA/CO/3-4, 2010, para. 61; Germany, CRC/C/15/Add.226, 2004, para. 50; Russia, CRC/C/RUS/CO/4-5, 2014, paras 57 et seq.; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 77; Tajikistan, CRC/C/TJK/CO/2, 2010, para. 59; India, CRC/C/IND/CO/3-4, 2014, para. 70. 45 CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/5-6, 2019, para. 33. 37

38

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Art. 27

[Development of the Child]

Article 27 para. 3 CRC as requiring States Parties to eliminate disparities experienced by socially vulnerable children in terms of standard of living.46 10 Simultaneously, the measures taken by the States authorities are not allowed to intervene to an extent which would undermine the primary responsibility of the parents. In order to be able to take the most appropriate action, the States Parties are responsible for gathering information on the population structure of children, taking into account potentially meaningful factors such as gender, age, the condition of the residential area, social and ethnic origin and family situation.47 On the basis of this information, disadvantaged groups shall be identified and particularly supported.48 To be distinguished here is the State support of the parents pursuant to Article 27 para. 3 CRC and measures taken by the State authorities for the protection of the child’s well-being, which may, dependent on the individual circumstances, also be directed against the parents.49 Crucially, the CRC Committee makes it clear that the obligation to provide material assistance and other support in case of need should be interpreted as also meaning assistance provided directly to children, which is particularly the case with children in street situations.50

3. States’ Obligations to Secure Recovery of Parental Maintenance (Article 27 para. 4 CRC) Article 27 para. 4 CRC concerns the particular problem of children who are separated from (one of) their parents and the resulting consequences of the separation, especially with regard to child maintenance.51 The inclusion of Article 27 para. 4 CRC into the Convention is consistent with Article 18 CRC which provides that parents have common responsibilities for the care of their children. Article 27 para. 4 CRC serves not just the best interests of the child or the parent who has responsibility for the day-to-day care of the child but also the State, which can reduce its financial burden for the care of the child under Article 27 para. 3 CRC by insisting that the non-resident or only partially resident parent make an appropriate contribution to the care and upraising of the child.52 The CRC Committee notes that the obligations under Articles 27 para. 4 CRC apply with regard to all children up to the age of 18 years.53 12 In principle, it is for the States Parties to determine when, and the extent to which, a parent will be financially responsible for a child under their domestic legal system. This determination must be, however, in conformity with the other rights of the Convention, in particular with Article 18 CRC. States Parties are required to take all appropriate measures to recover maintenance, not only by enacting adequate laws but also by, for instance, informing parents of the provisions of domestic legislation and raising awareness 11

46 See A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1048. 47 CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 103. 48 CRC Committee, General Comment No. 5, CRC/C/2003/5, 2003, paras 30 et seq. 49 See → Article 9 mn. 15. 50 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 49. 51 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 464 et seq. 52 Rightly so, A Nolan, Article 27, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1021, at 1049. 53 CRC Committee, Concluding Observations: St Vincent and the Grenadines, CRC/C/VCT/CO/2-3, 2017, paras 38-39.

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[Development of the Child]

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among parents about their rights and duties.54 The CRC Committee also urges States Parties to strengthen the implementation of existing laws and measures which ensure that both parents, married or not and with regard to full gender equality, contribute equitably to the maintenance of their children.55 In addition to the obligation of States Parties to take all appropriate measures to 13 secure the recovery of maintenance for the child from the parents or other carers within their own jurisdiction, Article 27 para. 4 CRC stipulates that States Parties shall promote the accession to or the conclusion of relevant international agreements in order to secure maintenance of the child in transnational situations. This regulation is intended to combat transnational difficulties which may arise if one person financially responsible for the child lives in a country different to the country of the child’s residence. 56 One of the main problems with the recovery of maintenance from a parent living 14 in another jurisdiction is the identification of the person responsible to provide maintenance (debtor). This prerequisite of parenthood, especially paternity, is closely related to the birth registration of the child according to Article 7 CRC. If the debtor is established, it is incumbent on the States Parties to provide a fast and uncomplicated procedure for the determination of the amount of the compulsory maintenance of the obligated person and, in the event of a refusal of payment, to provide appropriate legal sanctions and remedies.57 The CRC Committee therefore urges States Parties to enter into bilateral agreements with the major States of employment of migrant workers in order to secure the recovery of maintenance for the child when a parent is abroad.58 Furthermore, the CRC Committee encourages States Parties to accede relevant multilateral international treaties.59 In this regard, the 1973 Hague Convention No. 23 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations as well as the 1973 Hague Convention No. 24 on the Law Applicable to Maintenance Obligations are of major relevance, even when considering that these treaties were concluded before the drafting of the CRC and are therefore not a direct consequence of the obligation under Article 27 para. 4, sentence 2 CRC. More recently and after the entry into force of the CRC, the international community has sought to find a solution to the problem, for example, by concluding the Hague Convention No. 38 on the International Recovery of Child Support and Other Forms of Family Maintenance and through the Protocol Applicable to Maintenance Obligations. While the Hague Convention No. 38 regulates procedural matters, its Protocol determines the law applicable to maintenance obligations.60

54 See CRC Committee, Concluding Observations: Liberia, CRC/C/LBR/CO/2-4, 2012, para. 55; Haiti, CRC/C/HTI/CO/2-3, 2016, para. 41; Cameroon, CRC/C/CMR/CO/2, 2010, para. 45; Cook Islands, CRC/C/COK/CO/1, 2012, para. 38; Albania, CRC/C/ALB/CO/2-4, 2012, paras 52-53. 55 CRC Committee, Concluding Observations: Togo, CRC/C/TGO/CO/3-4, 2012, paras 31 et seq.; Tunisia, CRC/C/TUN/CO/3, 2010, para. 44; Japan, CRC/C/JPN/CO/3, 2010, para. 69; Syria, CRC/C/SYR/CO/3-4, 2012, para. 55; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 51. 56 See Commission of Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, para. 4; E/CN.4/1988/28, 1988, para. 65. 57 A Eide, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 27, 2006, Article 27 mn. 95 et seq. 58 See CRC Committee, Concluding Observations: St Lucia, CRC/C/LCA/CO/2-4, 2014, para. 57; Sao Tome and Principe, CRC/C/STP/CO/2-4, 2013, para. 39. 59 See, e.g., CRC Committee, Concluding Observations: Guyana, CRC/C/GUY/CO2-4, 2013, para. 40; Cuba, CRC/C/CUB/CO/2, 2011, para. 42; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 48; Belarus, CRC/C/BLR/CO/3-4, 2011, para. 41. 60 For a fuller account on these multilateral agreements see UP Gruber, in: J Bernreuther et al. (eds.), Festschrift für Ulrich Spellenberg, 2010, p. 179 et seq.

381

Art. 27

[Development of the Child]

IV. Embedding of Article 27 CRC into the System of International Human Rights Protection In general terms, the right to an adequate standard of living is defined in Article 25 para. 1 UDHR and Article 11 para. 1 ICESCR. The latter norm on the right to an adequate standard of living, which includes adequate food, clothing and housing, delineates a range of measures that States Parties must take to vindicate that right. This is in contrast to Article 27 paras 2 and 3 CRC which emphasise the primary responsibility of parents and other carers to secure the conditions of living necessary for the child’s development and leaves to the States Parties only a supplementary role to assist parents and others responsible for the child to implement this right. 61 Specific relevance for the protection of children is given by the provisions of Article 10 ICESCR and Articles 23 and 24 para. 1 ICCPR, which provide protection and support to the family and protect the child against discrimination. 16 At the regional level, Article 18 para. 2 ACHPR and Article 20 ACRWC constitute rules that correspond to the content of Article 27 CRC on the African continent. In Europe, however, there is no provision directly comparable to Article 27 CRC. Rather, on the European continent the guarantees of Article 27 CRC are distributed over several individual norms, such as Article 13, Article 14, Article 16, Article 17 and Article 31 ESC. With regard to Article 17 para. 1, read in conjunction with Article 31 ESC, the ESC Committee of Experts has stated, for example, that accommodation must also be appropriate for irregular migrant children and that accommodation in hotels does not comply with this requirement.62 The ECtHR has also developed positive obligations on the States Parties under Article 8 ECHR, which aim at ensuring a decent standard of living and which must be applied in a non-discriminatory manner according to Article 14 ECHR.63 However, the reality in many European countries is that not even the general core, much less the child-specific core of socioeconomic rights is being met in the context of immigration policy.64 For instance, in the case V.M. and Others v. Belgium, a Roma family from Serbia, comprising a mother, father and four children, the oldest of whom was 10 years old and with severe disabilities and the youngest of whom was a baby at the material time, was evicted from their asylum reception centre in Brussels after having been ordered to leave Belgium for France pursuant to EU asylum law regulations. The consequence was that the family was homeless for over a month, living in a public square and a railway station, before their return to Serbia was organised by an NGO. The ECtHR rightly found a violation of Article 3 ECHR.65 15

61 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 241 et seq. 62 ESC Committee, Defence for Children International, Views adopted on 23 October 2012, No. 69/2011, paras 82 et seq. 63 ECtHR, Judgment of 27 September 2011, No. 56328/07, para. 40 – Bah v. The United Kingdom; Judgment of 22 March 2012, No. 30078/06, para. 130 – Konstantin Markin v. Russia. 64 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 445. 65 ECtHR, Judgment of 7 July 2015, No. 60125/11, para. 163 – V.M. and Others v. Belgium.

382

Art. 28

[Right to Education]

Article 28 [Right to Education] 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definition of Education (Articles 28 and 29 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Right to Education on the Basis of Equal Opportunity (Article 28 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Compulsory Primary Education Free of Charge (Article 28 para. 1 lit. a CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Secondary Education (Article 28 para. 1 lit. b CRC) . . . . . . . . . . . . . . . . . . . . . . 3. Higher Education (Article 28 para. 1 lit. c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. States’ Obligations to Take Educational Measures (Article 28 para. 1 lit. d and lit. e CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. States’ Obligation to Guarantee the Child’s Human Dignity at School (Article 28 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. States’ Obligations to Promote and Encourage International Cooperation (Article 28 para. 3 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Embedding of Article 28 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 8 9 15 18 19 24 27 28

I. Generalities Education is not only a basic prerequisite for combating global poverty and archaic 1 traditions, but is a key element in the development and spread of human rights and of a pluralist democracy in general. Therefore, the right to education is, according to a widespread typology, divided into the areas of “right to education”, “rights in education”

383

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[Right to Education]

and “rights through education”,1 whereby all three aspects make clear that education is a significant prerequisite for the access to other rights.2 This three-track approach is based on the idea that implementing the CRC in the context of schooling involves at least three essential components. Firstly, the “right to education” requires education available and accessible to all children. Secondly, the “rights in education” means ensuring that children’s rights in general are respected and complied with within school and education systems. Finally, the term “rights through education” includes the provision of education that teaches children about their rights. 2 Article 28 CRC contains the “rights to and in education”, and Article 29 CRC defines the content and the general aims of this education.3 During the drafting process, it emerged that only one article on education was insufficient to sensibly capture all three aspects of children’s education rights with the result that the right to education has two dedicated provisions. Article 28 CRC focuses primarily on issues of access to education, while Article 29 CRC addresses its content and aims.4 The right to education, as guaranteed by the Convention, can therefore only be understood by a joint consideration of Article 28 and Article 29 CRC, which enjoy a symbiotic relationship.5 3 In addition, the right to education is intertwined with further guarantees of the Convention, for example, with the prohibition of discrimination pursuant to Article 2 para. 1 CRC, the right to development under Article 6 para. 2 CRC and the right of the child to express his or her views according to Article 12 CRC.6 Similarly, there are close connections to Articles 13 to 17 CRC and to Article 19 para. 1, Article 23 para. 3, Article 24 para. 2 lit. e, Article 30, Article 32 and Article 44 para. 6 CRC. Yet, even though the substantive rights to education are worded broadly and in a multi-faceted, holistic way in the Convention as a whole, Articles 28 and 29 CRC remain the most comprehensive articulation of children’s particular rights at and in school education.7 Besides the aforementioned three-track approach, they also contain a “4-A scheme” which was developed by the first UN Special Rapporteur on the Right to Education, Katarina Tomaševski, in 2006. According to her findings, education rights should be categorised under the headings of “availability”, “accessibility”, “acceptability”, and “adaptability”.8 This means that education should be available and accessible to everyone, i.e. sufficient functional schools and trained teachers should be available and that no one shall be legally or factually denied access to education. In addition, the form of education on offer should be of an acceptable standard that is adapted to the needs of each individual learner.9 In other 1 See E Verhellen, Children’s Rights and Education: A Three-track Legally Binding Imperative, School Psychology International 14 (1993), p. 199-208; see also K Tomaševski, Right to Education Primer 3: Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, 2001, p. 12. 2 See L Cattrijsse, in: E Verhellen (ed.), Understanding Children’s Rights 2001, p. 619 et seq. 3 For more detail see L Lundy, Mainstreaming Children’s Rights in, to and through Education in a Society Emerging from Conflict, International Journal of Children’s Rights 14 (2006), p. 339-362. 4 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 260; L Lundy/K Orr/H Schier, in: M Ruck et al. (eds.), Handbook of Children’s Rights: Global and Multidisciplinary Perspectives, 2016, p. 364, at 365. 5 C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1059. 6 See C Mahler/P Follmar-Otto, Asylbewerberleistungsgesetz auf dem menschenrechtlichen Prüfstand, Zeitschrift für Ausländerrecht und Ausländerpolitik 2011, p. 378, at 381, 383. 7 L Lundy, Children’s Rights and Educational Policy in Europe. The Implementation of the United Nations Convention on the Rights of the Child, Oxford Review Education 38 (2012), p. 393, at 395. 8 K Tomaševski, Human Rights Obligation in Education. The 4-A scheme, 2006. 9 See L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 261.

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words, education should be equal, relevant, culturally appropriate and of high quality.10 Education should also be adaptable to meet the needs of changing societies dynamically.

II. Definition of Education (Articles 28 and 29 CRC) Both Articles 28 and 29 CRC are based on a comprehensive concept of education 4 which has different levels, and includes primary, secondary, vocational and higher education.11 Furthermore, the CRC Committee has made it clear that the use of the term education in Articles 28 and 29 CRC does not confine the rights to schools or formal or institutional education. It rather embraces the broad range of life experiences and learning processes which enable children, individually and collectively, to develop their personalities, talents and abilities and to live a full and satisfying life within society.12 On the one hand, education is the acquisition of basic skills; on the other hand, it is also the development of mental and social skills in the sense of the further development of the individual personality.13 The abilities contained within the Convention’s concept of education include not only reading, writing and arithmetic, but also life skills such as the ability to make reasoned decisions, to resolve conflicts without violence, to lead a healthy lifestyle, to build social relationships, to gain a sense of responsibility, to think critically, to develop creative talents, and other abilities that serve as a means of creating life opportunities.14 It is crucial that, from the human and child rights perspective, education is understood not only as a basis for the realisation of equal opportunities, but also as the individual’s right to personality development.15 In addition, Article 28 CRC is about equal opportunity in school. School success 5 should depend only on the personal capacities of the child and not on his or her social, ethnic, economic, religious or other backgrounds. The CRC Committee has variously drawn attention to the concept of equal opportunities and to the educational needs of all children, irrespective of their family, minority or ethnic backgrounds, their sex and gender, their living situations and their disabilities.16 The CRC Committee recommends a number of measures of which States Parties should be mindful in this respect, including 10

seq.

See M Motakef, Das Menschenrecht auf Bildung und der Schutz vor Diskriminierung, 2006, p. 16 et

11 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 262. 12 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 2. 13 See J Delbrück, The Right to Education as an International Human Right, German Yearbook of International Law 35 (1992), p. 92, at 99. 14 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 9. 15 See F Wapler, Sozialrechtliche Leistungen der Bildungsförderung für junge Flüchtlinge, Recht der Jugend und des Bildungswesens 2016, p. 345, at 346; J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 472. 16 See, e.g., CRC Committee, Concluding Observations: Australia, CRC/C/15/Add.268, 2005, para. 61; China, CRC/C/CHN/CO/2, 2005, para. 75; Chad, CRC/C/TCD/CO/2, 2009, para. 67; Ecuador, CRC/C/ECU/CO/4, 2010, para. 64; The Netherlands Antilles, CRC/C/15/Add.186, 2002, para. 53; Dominican Republic, CRC/C/DOM/CO/2, 2008, para. 70; Jamaica, CRC/C/15/Add.210, 2003, para. 48; Seychelles, CRC/C/SYC/CO/2-4, 2012, para. 59; Russian Federation, CRC/C/RUS/CO/3, 2005, para. 75; Philippines, CRC/C/15/Add.259, 2005, para. 68; Mongolia, CRC/C/MNG/CO/3-4, 2010, paras 59 et seq.; Mexico, CRC/C/15/Add.112, 1999, para. 28; Luxembourg, CRC/C/15/Add.250, 2005, para. 48; Sudan, CRC/C/SDN/CO/3-4, 2010, paras 64 et seq.; France, CRC/C/15/Add.240, 2004, para. 48; Mauritania, CRC/C/MRT/CO/2, 2009, para. 66; Spain, CRC/C/15/Add.185, 2002, para. 42; Turkey, CRC/C/TUR/CO/ 2-3, 2012, para. 58; Germany, CRC/C/15/Add.226, 2004, para. 53; Kuwait, CRC/C/KWT/CO/2, 2013, para. 63; United Kingdom, CRC/C/15/Add.188, 2002, para. 47.

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the provision of scholarships and alternative forms of education and the development of programmes to address the educational needs of particularly vulnerable children.17 On the other hand, the aim of the school is to ensure that the prospective life chances of the younger generation are equally distributed as far as possible, so that all children have equal opportunities through schooling. 18 In any case, the parents’ educational autonomy, which is enshrined in Articles 5 and 18 CRC, is not intended to prevent school equal opportunities for children. 19 Also Goal 4 of the UN Sustainable Development Goals captures the non-discrimination core aspect of Article 28 CRC, formulating the objectives for education as follows: “Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all”. 6 Moreover, the educational concept of Articles 28 and 29 CRC extends to both formal and non-formal educational establishments operating outside of the regular education system. This broad concept of education is strongly supported not only by the CRC Committee,20 but also by the majority of scholars.21 The CRC Committee consistently recommends States Parties to undertake efforts to ensure access to education to vulnerable groups, in particular to those children who are unable to return to their regular schools.22 In particular, the rights enshrined in Article 28 CRC are described as the bare minimum of education to which States have agreed.23 7 It is not yet conclusively clarified which period of time the educational concept of Articles 28 and 29 CRC is meant to cover, i.e. when the right to education begins and when it ends. Of particular interest is the question of whether States Parties are obliged to establish pre-school education. Some scholars reject such an obligation to pre-school education on the basis of the argument that it is not expressly mentioned in Article 28 CRC and is also foreign to other international human rights treaties.24 The drafting history of the CRC also speaks against the extension of the concept to pre-school or early childhood education, since the idea of the inclusion of a corresponding obligation

17 See, e.g., Concluding Observations: Cook Islands, CRC/C/COK/CO/1, 2012, para. 54; China, CRC/C/CHN/CO/3-4, 2013, para. 77 et seq.; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 79; United Kingdom, CRC/C/GBR/CO/4, 2008, para. 67; Singapore, CRC/C/SGP/CO/2-3, 2011, para. 59; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 67; Moldova, CRC/C/MDA/CO/3, 2009, para. 63; Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, para. 63; Netherlands, CRC/C/NLD/CO/3, 2009, para. 62. 18 J Ennuschat, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 132, at 138. 19 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 66. See also F Wapler, Kinderrechte und Kindeswohl, 2015, p. 560. Critical assessment by J Ennuschat, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 132, at 172 et seq. 20 CRC Committee, General Guideline regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 106; Concluding Observations: Gabon, CRC/C/114, 2002, para. 230; Madagascar, CRC/C/133, 2004, para. 309. 21 See, e.g., M Nowak, The Right to Education. Its Meaning, Significance and Limitations, Netherlands Quarterly of Human Rights 4 (1991), p. 418, at 423; M Verheyde, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 28, 2005, Article 28 mn. 9; L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 262. Dissenting: G Van Bueren, The International Law on the Rights of the Child, 1995, p. 233. 22 CRC Committee, Concluding Observations: Mozambique, CRC/C/15/Add.172, 2002, para. 57 k; Uganda, CRC/C/UGA/CO/2, 2005, para. 60 c; Eritrea, CRC/C/ERI/CO/3, 2008, para. 67 d; Ecuador, CRC/C/ECU/CO/4, 2010, para. 65 b. See also CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 54. 23 K Tomaševski, Human Rights Obligation in Education. The 4-A scheme, 2006, p. 8. See also C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1074-1075. 24 See, e.g., G Van Bueren, The International Law on the Rights of the Child, 1995, p. 234.

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was explicitly rejected at that time. 25 However, the CRC Committee considers pre-school education to be a desirable tool,26 by underlining the merits of pre-primary or early childhood education. Articles 28 and 29 CRC do both not explicitly address the duration of education, but rather leave this question to the discretion of the States Parties. Only with regard to the duration of compulsory education, does the CRC Committee require that the latter should not end before the minimum age for professional activity.27

III. Right to Education on the Basis of Equal Opportunity (Article 28 para. 1 CRC) Article 28 para. 1 CRC characterises education as an individual right of every child, 8 and not merely an interest that remains dependent upon the discretion of the State authorities or other actors. On the contrary, the child’s right to education imposes a corresponding legal duty on States Parties to secure the realisation of those rights. 28 It is an entitlement which a child enjoys irrespective of any benefit and irrespective of his or her status.29 The right to education is not conditioned upon, or subordinated to, the achievements of any instrumental societal goal. In addition, the right to education must be based on the “4-A approach” developed by Katarina Tomaševski.30 The CRC Committee often considers the availability of education and expresses concern regarding the shortage of educational facilities, the lack of trained teachers and the non-existence or deficiency of appropriate infrastructure for effective learning.31 With regard to accessibility, the CRC Committee recommends that States Parties implement measures to improve children’s access to schools through, inter alia, the provision of transport to schools or the provision of mobile educational facilities.32 The CRC Committee has also variously emphasised the need to address the acceptability and ensure the overall quality of children’s education not only as regards the content of curriculum (which shall address “all-ground development”33) but also as regards insufficient school hours, overcrowding in classrooms, lack of internal management, etc.34 Finally, the adaptability 25 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/WG.1/CRP.1, 1989, para. 33; E/CN.4/1989/48, 1989, paras 458 et seq. 26 See CRC Committee, Day of General Discussion on Implementing Child Rights in Early Childhood, CRC/C/143, 2005, para. 553; CRC/C/137, 2004, paras 8 et seq. See also CRC Committee, General Comment No. 5, CRC/C/GC/7/Rev.1, 2006, para. 28; Concluding Observations: Bahrain, CRC/C/15/Add.175, 2002, para. 42 b; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 55; Israel, CRC/C/ISR/CO/2-4, 2013, para. 65; Slovenia, CRC/C/SVN/CO/3-4, 2013, para. 61 a. 27 CRC Committee, Concluding Observations: Niger, CRC/C/118, 2002, paras 48 et seq. 28 Rightly so, C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1062. 29 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 2. 30 See → Article 28 mn. 3. 31 See, e.g., CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/2, 2005, para. 77; Sierra Leone, CRC/C/15/Add.116, 2000, para. 65; St Vincent and the Grenadines, CRC/C/15/Add.184, 2002, para. 43; Romania, CRC/C/ROU/CO/5, 2017, para. 38; Bangladesh, CRC/C/15/Add.221, 2003, para. 65; Greece, CRC/C/15/Add.170, 2002, para. 67. 32 See CRC Committee, Concluding Observations: Sudan, CRC/C/15/Add.190, 2002, para. 56; Syria, CRC/C/15/Add.212, 2003, para. 45; Norway, CRC/C/15/Add.126, 2000, para. 47; Australia, CRC/C/15/ Add.268, 2005, para. 61; Lao People’s Democratic Republic, CRC/C/LAO/CO/2, 2011, para. 61; Costa Rica, CRC/C/CRI/CO/4, 2011, paras 67 et seq. 33 CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/2, 2005, para. 77; Poland, CRC/C/15/Add.194, 2002, para. 45. 34 See, e.g., CRC Committee, Concluding Observations: Uganda, CRC/C/UGA/CO/2, 2005, para. 59; Nicaragua, CRC/C/15/Add.265, 2005, para. 56; Belize, CRC/C/15/Add.252, 2005, para. 61; China, CRC/C/CHN/CO/2, 2005, para. 77; Russian Federation, CRC/C/RUS/CO/3, 2005, para. 75; Canada,

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[Right to Education]

of education, which means that education has to respond to the needs of students, especially to those suffering disadvantages, also forms part of the recommendations issued by the CRC Committee.35

1. Compulsory Primary Education Free of Charge (Article 28 para. 1 lit. a CRC) Article 28 para. 1 lit. a CRC obligates the States Parties to introduce a basic primary school obligation free of charge for all. This requirement is consistent with other international human rights treaties.36 Attempts by individual delegates in the drafting of the Convention to restrict the obligation upon States Parties to provide education free of charge by making it dependent on national possibilities and available resources37 have not found any recognition in the final text. Nevertheless, Article 28 para. 1 CRC is an obligation which is only to be fulfilled in a progressive manner within the meaning of Article 4, sentence 2 CRC.38 Article 28 para. 1 lit. a CRC thus remains subsidiary to the obligations set forth in Article 13 para. 2 lit. a and Article 14 ICESCR, which require an immediate and unconditional implementation of the free primary school obligation.39 Nevertheless, the CRC Committee often expresses concern at the low levels of public funding and investment in education by States.40 10 The term “primary education” means education that is typically designed to provide pupils with fundamental skills in reading, writing and mathematics, and establish a solid foundation for learning and understanding core areas of knowledge.41 Although there is no fixed age range by the Convention and States Parties do retain discretion to determine the length of primary education, the customary age of entry is usually not below 5 years nor above 7 years. Typically, primary education lasts until the age of 10 or 12 years.42 However, the CRC Committee generally welcomes the adoption of State measures extending the period of mandatory education until the ages of 16 or 17.43 This approach is doubtful for two reasons. Firstly, it does not have a textual basis in Article 28 CRC. Secondly, it prolongs the age of compulsory education beyond the age of employment and does not respect the autonomy rights of the child to engage in employment.44 The CRC Committee should therefore recall this kind of paternalistic view which is not in line with Article 12 CRC and the overall objective of the Convention. 9

CRC/C/15/Add.215, 2003, para. 44; Nepal, CRC/C/15/Add.261, 2005, para. 73; Singapore, CRC/C/15/ Add.220, 2003, para. 42. 35 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 66. 36 See, for example, Article 13 para. 2 lit. a and Article 14 ICESCR. 37 See S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 384 et seq. 38 M Verheyde, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 28, 2005, Article 28 mn. 14. See also → Article 4 mns. 21 et seq. 39 See (German) Federal Administrative Court, Judgment of 29 April 2009, 6 C 16/08, paras 47 et seq. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 28.04. 40 See, e.g., CRC Committee, Concluding Observations: Ecuador, CRC/C/15/Add.262, 2005, para. 59; Afghanistan, CRC/C/AFG/CO/1, 2011, para. 59; Togo, CRC/C/TGO/CO/3-4, 2012, para. 63; Nicaragua, CRC/C/NIC/CO/4, 2010, para. 71; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 75; Italy, CRC/C/ITA/CO/ 3-4, 2011, para. 61; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 78; Cambodia, CRC/C/KHM/CO/2-3, 2011, para. 65; Burundi, CRC/C/15/Add.133, 2000, para. 18; Tonga, CRC/C/TON/CO/1, 2019, para. 56. 41 See UNESCO, International Standard Classification of Education, 2011, p. 120 et seq. 42 For a fuller account see C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1086-1089. 43 See CRC Committee, Concluding Observations: Algeria, CRC/C/DZA/CO/3-4, 2012, para. 63; Niue Islands, CRC/C/NIU/CO/1, 2013, paras 63 et seq.; Israel, CRC/C/ISR/CO/2-4, 2013, para. 61. 44 Rightly so, C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1088-1089.

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The obligation to provide compulsory basic education free of charge applies to all 11 children, irrespective of their financial situation or other aspects.45 In this context, “free of charge” means not only free access to educational institutions,46 but also the elimination of other accompanying or hidden costs, such as registration costs, costs for school uniforms and schoolbooks, as well as food and transport costs.47 The CRC Committee is highly critical of practices that undermine a genuinely free primary education and expresses deep concern at the imposition of hidden fees or costs.48 Children with economically weaker backgrounds are to receive financial support by the State for the necessary acquisition of school uniforms and books.49 Because the obligation in Article 28 para. 1 lit. a CRC is to be fulfilled in a merely progressive manner, it does not offer, however, a direct subjective right of the child against the State Party to finance learning and educational or vocational work equipment.50 Yet, the CRC Committee’s General Comment No. 19 (2016) is particularly pertinent in education. The CRC Committee emphasises the need for greater transparency and accountability, and importantly, for children’s participation at schools and on public budgeting to realise children’s rights to education.51 Also, the ECtHR considered that a requirement for two Russian school children, who were without permanent residence, to pay secondary school fees was discriminatory and thus in violation of the ECHR.52 Moreover, the education of children and young people of ethnic minority groups, including asylum seekers and unaccompanied migrant children, has been the subject of various adverse commentaries by the CRC Committee and the CERD Committee in many of their statements.53 For instance, in its Concluding Observations on the combined fifth and sixth periodic reports of Italy (2019), the CRC Committee expresses deep concern about the high rates of school dropout, including from compulsory schooling, of Roma, Sinti and Caminanti children, also as a consequence of forced evictions, and recommends the implementation of a human rightsbased approach to the entire educational system that is more inclusive towards children belonging to minority groups.54 Similar conclusions apply to other States Parties.55 The H Cremer, Das Recht auf Bildung für Kinder ohne Papiere, 2009, p. 7. As regards free access to primary education see CRC Committee, Concluding Observations: Brazil, CRC/C/15/Add.241, 2004, para. 59; New Zealand, CRC/C/15/Add.216, 2003, para. 44; Colombia, CRC/C/COL/CO/3, 2006, para. 77; Samoa, CRC/C/WSM/CO/1, 2006, para. 53; Niger, CRC/C/NER/CO/2, 2009, para. 67. 47 See F Coomans, in: A Chapman/S Russell (eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights, 2002, p. 217, at 228; see also CESCR Committee, General Comment No. 11 on plans of action for primary education, E/C.12/1999/4, 1999, para. 7. 48 See, e.g., Concluding Observations: Liberia, CRC/C/LBR/CO/2-4, 2012, para. 72; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 52; China, CRC/C/CHN/CO/2, 2005, para. 75; Bhutan, CRC/C/BTN/CO/2, 2008, para. 60; Cameroon, CRC/C/CMR/CO/3-5, 2017, para. 39; Tuvalu, CRC/C/TUV/CO/1, 2013, para. 59; Serbia, CRC/C/SRB/CO/1, 2008, para. 60; Turkey, CRC/C/TUR/CO/ 2-3, 2012, para. 58; Kyrgyzstan, CRC/C/15/Add.244, 2004, paras 53 et seq.; Paraguay, CRC/C/PRY/CO/3, 2010, para. 61. 49 CRC Committee, Concluding Observations: Mozambique, CRC/C/Add.114, 2002, para. 306. 50 See Higher Social Court Halle (Saale), Judgment of 3 December 2009, L5 AS 103/07, paras 20 et seq. 51 CRC Committee, General Comment No. 19, CRC/C/GC/19, 2016, paras 52 et seq., 62, 83, 102. For more detail see L Lundy/A Brown, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 387, at 393 et seq. 52 ECtHR, Judgment of 21 June 2011, No. 5335/05, para. 60 – Ponomaryovi v. Bulgaria. 53 For more detail see L Lundy, Children’s Rights and Educational Policy in Europe. The Implementation of the United Nations Convention on the Rights of the Child, Oxford Review Education 38 (2012), p. 393-411; S Schmahl, in: D Angst/E Lantschner (eds.), ICERD, Handkommentar, 2020, Article 3 mns. 24-27. 54 CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/5-6, 2019, para. 31. 55 See, e.g., CRC Committee, Concluding Observations: Bosnia and Herzegovina, CRC/C/BIH/CO/5-6, 2019, paras 39-40; Hungary, CRC/C/HUN/CO/6, 2020, para. 36. 45 46

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ECtHR has also ruled that the placement of Roma and Sinti students in special schools, without any other objective justification, was a form of indirect discrimination and thus contrary to the ECHR.56 Similarly, the Human Rights Committee stresses that placement in schools should not be determined by the child’s ethnicity and criticises the de facto segregation of Roma children in the education system.57 12 Education is the only human right enshrined in the CRC that is also mandatory for the rights-holder. States Parties are required to make elementary education compulsory. In this context, the interests of the State and the individual often align. Elementary education is recognised as both a public and personal good. States Parties are obliged to provide it and individuals are not just entitled to but also required to receive it.58 Furthermore, there is a close correlation between the State’s obligation to offer free-of-charge school attendance and the obligation for the child to attend primary school, since compulsory schooling can only be justified and implemented when free-of-charge.59 The CRC Committee emphasises this connection and points to the great importance of primary schooling.60 The purpose of compulsory primary school education is to protect the child’s right to education from parental influence, cultural resistance, child labour and economic exploitation.61 States Parties must ensure that parents do not prevent their children from attending school. Article 28 para. 1 lit. a CRC also applies to parents who are not allowed to put out their children off the public-school system (or the equivalent private-school system) and to educate their children at home or in a completely private setting.62 With the exception of emergency situations such as those that occurred in 2020 due to the global COVID-19 pandemic, the home-schooling of primary school children clearly violates Article 28 para. 1 lit. a CRC, which foresees primary education for all as mandatory. Article 28 CRC therefore places both a positive obligation upon the States Parties to take legislative measures to establish compulsory primary school education and to regulate its formation, as well as an obligation on the rights-holder (the child) to comply with the existing primary school obligation.63 Also, the ECtHR rightly considers that the system of imposing compulsory school attendance while excluding home education is in conformity with Article 2 of Additional Protocol No. 1 to the ECHR and with Articles 8 and 9 ECHR.64 The Court finds it established that a State, in introducing such a system of compulsory school attendance, aims at ensuring the integration of children into society with a view to avoiding the emergence of parallel soci-

56 ECtHR, Judgment of 13 November 2007, No. 57325/00, paras 182 et seq. – D.H. and Others v. The Czech Republic. 57 Human Rights Committee, Concluding Observations: Ecuador, CCPR/C/ECU/CO/5, 2009, para. 11; Greece, CCPR/C/GRC/CO/2, 2015, para. 17. 58 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 260. 59 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 238. 60 See, e.g., CRC Committee, Concluding Observations: Bhutan, CRC/C/Add.108, 2001, paras 470 et seq. 61 CESCR Committee, General Comment No. 11 on plans of action for primary education, E/C.12/1999/4, 1999, para. 6. See also → Article 32 mn. 10. 62 Similarly, H Cremer, Das Recht auf Bildung für Kinder ohne Papiere, 2009, p. 7. Different opinion by L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 272. 63 M Nowak, in: A Eide/C Krause/A Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd edn. 2001, p. 245, at 261. See also R Poscher/J Rux/T Langer, Das Recht auf Bildung – Völkerrechtliche Grundlagen und innerstaatliche Umsetzung, 2009, p. 54. 64 ECtHR, Decision of 11 September 2006, No. 35504/03 – Konrad v. Germany; Decision of 13 September 2011, No. 319/08 – Dojan and Others v. Germany; Judgment of 10 January 2019, No. 18925/15, para. 42 – Wunderlich v. Germany.

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eties and to upholding the importance of pluralism for democracy.65 Independent from the question of whether it may be ensured that children are acquiring sufficient knowledge through home-schooling, not attending school prevents them from becoming part of the community and learning social skills such as tolerance, assertiveness, and the ability to contend and defend their own convictions against majority-held views. In order to develop their own identity and personality, it is necessary that children be exposed to influences other than those of their parental home to acquire those skills.66 Depriving a child of the experience of school life is, in itself, a denial of children’s rights to be educated together with other peers of their generation.67 Parents’ rights to educate their children must lag behind these important reasons for the well-being of children who are allowed to emancipate from their parents' house in the course of their development. Consideration of what is in the best interests of the child is in any event of crucial importance.68 In accordance with Article 2 para. 1 CRC, the States Parties’ obligation to progressive- 13 ly introduce cost-free and compulsory primary school teaching under Article 28 CRC extends to all children irrespective of their person or status; and thus, for instance, also to girls69 and children with disabilities.70 The wording of Article 28 CRC, unlike Article 24 para. 1 ICRPD, does not establish an obligation to provide inclusive school education. However, the CRC Committee emphasises that the inclusive schooling of children with and without disabilities is an important target for the optimisation of States Parties’ education systems.71 Common inclusive schooling is based on the assumption that heterogeneity is not a problem but rather enrichment for the society.72 In any case, the quality of education and opportunities for learning shall not be minimised only with regard to children with disabilities.73 Certainly, there may and should be legitimate exceptions. For example, studies on autistic children or children with Asperger’s syndrome show evidence of the benefit of receiving individually tailored lessons and curricula. Stu65 ECtHR, Decision of 11 September 2006, No. 35504/03 – Konrad v. Germany; Judgment of 10 January 2019, No. 18925/15, para. 50 – Wunderlich v. Germany. 66 See, the arguments raised by the German courts and the German government, reproduced in: ECtHR, Judgment of 10 January 2019, No. 18925/15, paras 12 et seq., 40 – Wunderlich v. Germany. 67 Similar assessment by CESCR Committee, E/C.12/1999/10, 8 December 1990, para. 29; B Saul/ D Kinley/J Mowbray, The International Covenant on Economic, Social and Cultural Rights, 2014, at 1150; K Koch, Ist der partielle Entzug des Sorgerechts zur Durchsetzung der Schulpflicht konventionsmäßig?, Zeitschrift für Europarechtliche Studien 2019, 555, at 559 et seq. Dissenting opinion by the Special Rapporteur on the Right to Education Vernor Munoz, A/HCR/4/29, Add.3, 9 March 2007, para. 62; C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1065-1066. 68 ECtHR, Judgment of 10 May 2001, No. 28945/95, para. 70 – T.P. and K.M. v. The United Kingdom; Judgment of 26 February 2002, No. 46544/99, para. 66 – Kutzner v. Germany. 69 H Cremer, Das Recht auf Bildung für Kinder ohne Papiere, 2009, p. 7. See also Human Rights Committee, Concluding Observations: El Salvador, CCPR/C/SLV/CO/6, 2010, para. 12, where the Committee expresses concern about the high school dropout rate which mainly affects girls from rural areas. 70 See T Degener, Das Recht auf inklusive Bildung als Menschenrecht, Kritische Justiz 2012, p. 405, at 412. See also by P Harpur/MA Stein in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 139, at 149, 162-163. 71 CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, para. 66. See also G Lansdown, See me, Hear me – A Guide to Using the UN Convention of the Rights of Persons with Disabilities to Promote the Rights of Children, 2009, p. 111. Further see → Article 23 mns. 15 et seq. 72 See R Poscher/J Rux/T Langer, Von der Integration zur Inklusion – Das Recht auf Bildung aus der Behindertenrechtskonvention der Vereinten Nationen und seine innerstaatliche Umsetzung, 2008, p. 22-26. 73 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 264 et seq. See also M Sabatello/MF Layden, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 595, at 601 et seq.

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dents with dyslexia and dyscalculia are also to be educated according to their individual talents.74 Likewise, in the case of blind children, separate teaching using Braille may be permitted under certain circumstances.75 In addition, the rights of classmates do play a role if, for example, the non-controllable behaviour of a child with disabilities endangers their physical integrity. 76 In addition, highly gifted children and their rights to education must also be taken into account, which is why the organisation of inclusive lessons, school curricula and school types must not be at their expense. Finally, under certain conditions, a reservation of resources may be permitted.77 14 The right to education also requires the provision of schooling and primary education for migrant and refugee children, irrespective of their legal status. The CRC Committee is abundantly clear in stating that all children in the context of international migration, irrespective of their own or their parents’ status shall have full access to all levels and all aspects of education, on the basis of equality with nationals of the country where those children are living.78 This requirement follows not only from Article 28 para. 1, read in conjunction with Article 2 para. 1 CRC, but also from the rules enshrined in Article 13 para. 1 and para. 2 lit. a, b ICESCR.79 The CESCR Committee notes that compulsory schooling must be applied to all persons of school age who are resident in the territory of a Contracting State, irrespective of their nationality and legal status.80 The CESCR Committee also accentuates that the right to education extends to the fact that children can actually go to school and have a reasonable path to school,81 which is why refugee accommodation should not be set up in places without an existing infrastructure or public transport connection.82 It is only through education by which economically and socially excluded children can overcome poverty. Similarly, the ECtHR rightly considers that the imposition of school fees on foreigners who are only temporarily and illegally resident is contrary to the Convention.83 Moreover, education plays an important role in the protection of children from neglect, negligent treatment and exploitation by their parents or other guardians.84 In view of its central importance, the conditions for intervening with the child’s right to education have to be high.85 For example, national legislation concerning foreigners and migrants, which places public authorities (such as school principals) under the duty to impose a sanction when they are aware of children attending schools who are not legal residents, is contrary to the Convention. The CRC Committee strongly urges States Parties to expeditiously reform regulations and 74 See W Cremer/K Kolok, Verfassungsrechtliche Anforderungen an den Umgang mit Legasthenie und Dyskalkulie in der Schule, Deutsches Verwaltungsblatt 2014, p. 333-341. 75 See M Krajewski, Inklusive Schule im Freistaat Bayern?, Bayerische Verwaltungsblätter 2012, p. 134, at 138, T Degener, Das Recht auf inklusive Bildung als Menschenrecht, Kritische Justiz 2012, p. 405, at 412: “Special care”. 76 See R Poscher/J Rux/T Langer, Von der Integration zur Inklusion – Das Recht auf Bildung aus der Behindertenrechtskonvention der Vereinten Nationen und seine innerstaatliche Umsetzung, 2008, p. 34. 77 T Bernhard, Art. 24 UN-BRK: Rezeption in der Rechtsprechung nach fünf Jahren, Recht der Jugend und des Bildungswesens 2015, p. 79, at 85. 78 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 59. See also CRC Committee, Concluding Observations: Republic of Korea, CRC/C/KOR/CO/5-6, 2019, para. 41 et seq. 79 See H Cremer, Das Recht auf Bildung für Kinder ohne Papiere, 2009, p. 6; C Mahler/P Follmar-Otto, Asylbewerberleistungsgesetz auf dem menschenrechtlichen Prüfstand, Zeitschrift für Ausländerrecht und Ausländerpolitik 2011, p. 378, at 381. 80 CESCR Committee, E/C.12/1999/10, of 8 December 1990, paras 6, 34. 81 CESCR Committee, E/C.12/1999/10, of 8 December 1990, paras 6 b and 34. 82 H Cremer, Menschenrechtliche Verpflichtungen bei der Unterbringung von Flüchtlingen, 2014, p. 6. 83 ECtHR, Judgment of 21 June 2011, No 5335/05, para 48 et seq. – Ponomaryovi v. Bulgaria. 84 CESCR Committee, E/C.12/1999/10, of 8 December 1990 para. 1. See also → Article 32 mn. 10. 85 H Cremer, Das Recht auf Bildung für Kinder ohne Papiere, 2009, p. 8.

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practices that prevent migrant children, in particular undocumented children, from registering at schools and educational institutions.86 Finally, a structural element of access to primary schools – the physical availability of an education system – has begun to attract attention of the CRC Committee. States Parties are obliged to ensure access to primary education in remote and rural areas, in order to ensure, inter alia, quality earlychildhood development.87

2. Secondary Education (Article 28 para. 1 lit. b CRC) Article 28 para. 1 lit. b CRC concerns the access to secondary education and thus re- 15 sembles Article 26 para. 1 sentence 3 UDHR and Article 13 para. 2 lit. b ICESCR. However, there are some discrepancies, since Article 13 para. 2 lit. b ICESCR requires States to develop different forms of secondary education, whereas Article 28 para. 1 lit. b CRC only requires measures to encourage the development of such education. However, the obligation to promote the development of various forms of secondary education institutions and to make them accessible to all children, is also expected by the State Parties to the CRC. The CRC Committee makes it clear that States Parties will have to provide flexible timetables as well as various transport systems to secondary schools in order to respond to the needs of pupils with different social and cultural backgrounds. In principle, States Parties should especially encourage adolescent girls to attend a secondary school.88 This view by the CRC Committee is to be agreed with. The significance of the variations between Article 13 para. 2 lit. b ICESCR and Article 28 para. 1 lit. b CRC should not be overstated. Assurances were given at the drafting of the Convention that no diminution of existing standards was contemplated.89 Article 28 para. 1 lit. b CRC mentions expressly schools of general education and vo- 16 cational training as forms of secondary education institutions. Vocational education shall mainly serve to convey technical knowledge and practical skills. The CRC Committee considers vocational education and training as an alternative to secondary school education, particularly in cases of dropping out from secondary school.90 States Parties are called upon to strengthen vocational training and establish schools that systematically prepare children for the requirements of the labour market and civic responsibilities. 91 However, the development of different forms of secondary schools is not limited to these explicit forms, as indicated in the wording of Article 28 para. 1 lit. b CRC with the phrase “including general and vocational education”. The CRC Committee points to the possibility for States Parties to develop alternative educational programmes92 and thus

86 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 60. 87 CRC Committee, Concluding Observations: Bulgaria, CRC/C/BGR/CO/2, 2008, para. 49; Georgia, CRC/C/GEO/CO/4, 2017, para. 36. 88 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 69; Concluding Observations: Mozambique, CRC/C/MOZ/CO/3-4, 2019, paras 40-41. See also CESCR Committee, General Comment No. 13: The Right to Education, E/C.12/1999/10, 1999, para. 12. 89 See Commission on Human Rights, Report of the Working Group, E./CN.2/1989/48, 1989, para. 625. See also C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1059. 90 See CRC Committee Concluding Observations: Argentina, CRC/C/ARG/CO/3-4, 2010, para. 67; Sri Lanka, CRC/C/LKA/CO/3-4, 2010, para. 63; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 64; Cambodia, CRC/C/KHM/CO/2-3, 2011, para. 66; Spain, CRC/C/ESP/CO/3-4, 2010, para. 55; Panama, CRC/C/PAN/CO/3-4, 2011, paras 62 et seq. 91 CRC Committee, Concluding Observations: Philippines, CRC/C/15/Add.259, 2005, para. 70; Solomon Islands, CRC/C/15/Add.208, 2003, para. 47; Nicaragua, CRC/C/NIC/CO/4, 2010, para 71. 92 CRC Committee, Concluding Observations: Bulgaria, CRC/C/Add.62, 1997, para. 41.

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goes beyond the content of the parallel rules enshrined in Article 13 para. 2 lit. b ICESCR. 17 In order to achieve the realisation of the right to secondary education on the basis of equality, Article 28 para. 1 lit. b CRC introduces free education and the provision of financial support where necessary. In contrast to the approach to primary schools, the secondary education offered by the States Parties does not need to be free of charge. The obligation of compulsory free secondary education would exceed the financial and organisational capacities of many States. Article 28 para. 1 lit. b CRC is, therefore, in unison with Article 13 para. 2 lit. b ICESCR. Nevertheless, the CRC Committee welcomes the expansion of free education to the secondary level and recommends States Parties to increase the allocation of resources necessary to enable children to attend secondary school.93

3. Higher Education (Article 28 para. 1 lit. c) 18

The weakest obligation is laid down in Article 28 para. 1 lit. c CRC in regards to higher education institutions. States Parties are merely required to provide access to universities through all appropriate means, on the basis of capacity. This reservation designates Article 28 para. 1 lit. c CRC as subsidiary to the corresponding right in Article 13 para. 2 lit. c ICESCR, which explicitly includes the gradual introduction of free higher education within the concept of appropriate means.94 Attempts to include provisions corresponding to Article 13 para. 2 lit. c ICESCR within Article 28 para. 1 CRC were rejected in the drafting of the Convention as being too extensive,95 especially given that most university students are adults and therefore do not fall within the scope of the CRC.96 Nevertheless, the CRC Committee has long emphasised the importance of equal access to higher education institutions.97 It can be inferred from the CRC Committee’s statements that States Parties are at least obliged to provide assistance in case of neediness, which can consist of financial aid and the provision of scholarships.98 The CRC Committee further recommends that States Parties improve opportunities for children to have access to tertiary education and in particular ensure that girls and adolescents of groups that are traditionally discriminated against have equal opportunities to attend higher education.99

4. States’ Obligations to Take Educational Measures (Article 28 para. 1 lit. d and lit. e CRC) 19

The obligation to provide access and availability to educational and vocational information and guidance as stated in Article 28 para. 1 lit. d CRC is unique in the area of universal human rights protection and reflects the child-centred nature of this provi93 CRC Committee, Concluding Observations: Madagascar, CRC/C/15/Add.218, 2003, para. 58; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 75; Slovenia, CRC/C/SVN/CO/3-4, 2013, paras 60 et seq.; Guatemala, CRC/C/GTM/CO/3-4, 2010, para. 80; Kenya, CRC/C/KEN/CO/2, 2007, para. 58; Botswana, CRC/C/BWA/CO/2-3, 2019, paras 52-53. 94 Similarly, Federal Administrative Court, Judgment of 29 April 2009, 6 C 16/08, paras 47 et seq. 95 See S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 391, 393. 96 See → Article 1 mns. 3 et seq. 97 CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 107. 98 CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 107. 99 See CRC Committee, Concluding Observations: Japan, CRC/C/JPN/CO/3, 2010, para. 73; Sudan, CRC/C/15/Add.190, 2002, para. 54; Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 63; Montenegro, CRC/C/MNE/CO/1, 2010, para. 60.

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sion.100 Only Article 9 and Article 10 ESC contain a similar, however, regionally limited obligation.101 Although ILO Convention No. 142 and the 2001 UNESCO Recommendation on Technical and Vocational Education deal with the question of vocational guidance, they are both limited to employment and working life.102 The obligation of the States Parties under Article 28 para. 1 lit. e CRC to take mea- 20 sures to encourage regular attendance at schools and the reduction of drop-out rates is a novelty in the international human rights protection system. It is particularly important that the measures to combat school non-attendance are in principle not of a repressive nature.103 Fining and imprisoning parents as strategies to enforce school attendance of their children have been shown to have adverse effects on families, particularly on those that may be economically deprived.104 Not surprisingly, the CRC Committee recognises that the imposition of a fine on parents for non-attendance of the child can be counterproductive and therefore advocates for positive incentives to attend school such as vocationally appropriate curricula, affordable transport and financial support for poorer students.105 Hence, States Parties do not fulfil their obligations under Article 28 para. 1 lit. e CRC with the mere provision of repressive sanctions for complete or partial truancy, but rather only if they provide positive measures to promote regular school attendance, which have to be applied on a case-by-case basis.106 Regulatory or disciplinary measures having a compulsory nature may only be taken as a measure of last resort.107 If the cause of irregular school attendance is the poverty of a child or his or her 21 family, the CRC Committee recommends, inter alia, the provision of free food and health care in schools.108 Another common reason for irregular school attendance and premature school leaving is early marriage, multiple household duties and pregnancy in girls and young women, who in several countries are immediately excluded from school after they have given birth.109 In this respect, the CRC Committee points to the possibility of providing sex education as a preventive measure.110 In the case of an existing pregnancy, the States Parties shall ensure that pregnant girls are given the opportunity to conclude school education without restriction.111 This can also be achieved

100 C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1103. 101 See K von der Decken, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 43 mn. 25. 102 See Article 3 para. 2 ILO Convention No. 142 as well as Articles 54 and 56 of the UNESCO Recommendation. 103 Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, para. 467. 104 See J Donoghue, Truancy and the Prosecution of Parents: An Unfair Burden on Mothers?, Modern Law Review 74 (2011), p. 216-241; L Lundy, Children’s Rights and Educational Policy in Europe. The Implementation of the United Nations Convention on the Rights of the Child, Oxford Review Education 38 (2012), p. 393-411. 105 See CRC Committee, Concluding Observations: Albania, CRC/C/15/Add.249, 2005, para. 60. See also L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 264. 106 M Verheyde, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 28, 2005, Article 28 mn. 26. 107 H Cremer, Das Recht auf Bildung für Kinder ohne Papiere, 2009, p. 7. 108 CRC Committee, Concluding Observations: Grenada, CRC/C/Add.94, 2000, para. 408. 109 See L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 264. See also CRC Committee, Concluding Observations: Cook Islands, CRC/C/COK/CO/1, 2012, para. 54; Guinea, CRC/C/GIN/CO/3-6, 2019, para. 38 e. 110 CRC Committee, Concluding Observations: Uruguay, CRC/C/Add.50, 1996, paras 109, 119. 111 See CRC Committee, Concluding Observations: New Zealand, CRC/C/Add.133, 2004, para. 156. See also K Tomaševski, Progress Report of the Special Rapporteur on the Right to Education 1999/25, E/CN.4/2000/6, 2000, paras 56 et seq.

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through special education programmes designed for pregnant women.112 Problems that arise in the context of minority languages should be solved through the provision of multi-lingual education.113 22 Categories of children which may be excluded from school differ across the world as do the underlying reasons for exclusion.114 In any case, disciplinary exclusion does not remove the responsibilities of duty-bearers, i.e. the States Parties, to ensure and protect the education rights of students since denying access to education can produce serious adverse effects. Governments are therefore called upon to make alternative education services available.115 The ECtHR considers that disciplinary exclusion procedures from school are allowed provided that they meet the conditions for permissible limitations, a decision which will, however, depend upon the length of exclusion and procedural safeguards in place, along with sensible efforts of States to provide alternative educational support and options for pupils to reintegrate.116 23 In order to encourage regular school attendance and to increase the school graduation rate, the CRC Committee recommends that students117 as well as parents and relevant stakeholders118 participate in the design of the education system.119 In addition, the CRC Committee believes that the improvement of vocational education and training can be used to promote regular school attendance and to increase the school graduation rate.120 However, higher education is not covered by Article 28 para. 1 lit. e CRC, since the majority of the students studying at universities are adults and therefore fall outside of the scope of the Convention.121 Article 28 para. 1 lit. e CRC encompasses only primary and secondary education.122 Therefore, the decisions of the CJEU on study grants based on citizenship of the European Union123 as well as to study grants to so-called "frontier workers" on the basis of Article 45 TFEU124 are significant with respect to the European Union Member States, but have no connection to Article 28 para. 1 lit. e CRC.

IV. States’ Obligation to Guarantee the Child’s Human Dignity at School (Article 28 para. 2 CRC) 24

Against the historical experience that school discipline in various countries has been characterised by violent and degrading forms of punishment, Article 28 para. 2 CRC gives children a dedicated and specific guarantee in relation to the administration of CRC Committee, Concluding Observations: United Kingdom, CRC/C/Add.121, 2002, para. 140. CRC Committee, Concluding Observations: Guatemala, CRC/C/Add.108, 2001, para. 274. 114 See K Tomaševski, Human Rights Obligation in Education. The 4-A scheme, 2006. 115 For a fuller account see P O’Lynn, The right to education for young people excluded from mainstream in a divided society, North Ireland Legal Quarterly 67 (2016), p. 491-514. 116 ECtHR, Judgment of 11 January 2011, No. 40385/06, para. 58 – Ali v. The United Kingdom. 117 CRC Committee, Concluding Observations: The Netherlands Antilles, CRC/C/Add.118, 2002, para. 576. 118 CRC Committee, Concluding Observations: Uzbekistan, CRC/C/Add.111, 2001, para. 581. 119 Rather critical assessment by J Doek, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 257, at 264 et seq. 120 CRC Committee, Concluding Observations: Liberia, CRC/C/15/Add.236, 2004, para. 57. 121 See → Article 28 mn. 18. 122 CRC Committee, Concluding Observations: Oman, CRC/C/Add.111, 2001, paras 191 et seq.; Portugal, CRC/C/Add.111, 2001, paras 246 et seq. 123 See, e.g., CJEU, Judgment of 20 September 2001, Case C-184/99, ECLI:EU:C:2001:458, paras 27 et seq. – Grzelczyk; Judgment of 15 March 2005, Case C-209/03, ECLI:EU:C:2005:169, paras 28 et seq. – Bidar; Judgment of 18 November 2008, Case C-158/07, ECLI:EU:C:2008:630, paras 34 et seq. – Förster. 124 CJEU, Judgment of 20 June 2013, Case C-20/12, ECLI:EU:C:2013:411 – Giersch. 112

113

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school discipline.125 It follows first and foremost from Article 28 para. 2 CRC, read in conjunction with Article 19 and Article 37 lit. a CRC, that disciplinary measures at school should never be violent, inhumane or degrading.126 Especially in view of Article 19 CRC, the CRC Committee has decided that this norm is also applicable to schools and other educational institutions, as the teaching staff also have the task of supervising the child.127 According to the CRC Committee, any form of physical or corporal punishment is contrary to Article 28 para. 2, Article 19, Article 37 lit. a and Article 29 CRC. 128 The incriminated forms of corporal punishment include kicking, shaking, throwing, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding and forced ingestion.129 In addition, mental or psychological violence such as bullying and verbal aggression130 and public humiliation131 violate equally the abovementioned rights of the child. Therefore, it is the obligation of the States Parties to provide legislative measures of a preventive and repressive nature in order to prevent or punish such disciplinary techniques inconsistent with the dignity and self-worth of a child.132 Furthermore, children’s right to have their views given due weight under Article 12 CRC is particularly significant in schools. While children may be in a numerical majority in school contexts, adult power and authority have traditionally characterised the dynamic in this context.133 Articles 28, 29 and Article 12 CRC require a rethinking of the teacher-student relationship and the ways in which schools are run.134 In relation to the State’s duty to protect, Article 28 para. 2 CRC has an indirect 25 third-party effect. For instance, States Parties must take appropriate measures to ensure that children are protected from abuse, harm, harassment, or bullying by other children and teachers while in public and private schools.135 This obligation applies especially to the field of cyber bullying or other harmful Internet activities among classmates or in the context of the school. Under certain circumstances, misconduct can be sanctioned with disciplinary measures. However, schools should primarily make their students

125 See C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1105; L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 270. 126 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 489; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, MN28.09. 127 CRC Committee, Concluding Observations: Bolivia, CRC/C/Add.80, 1998, para. 108. See also → Article 19 mn. 1. 128 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 8. 129 CRC Committee, General Comment No. 8, CRC/C/GC/8, 2006, para. 11. 130 See CRC Committee, General Discussion Day on violence against children in the family and at school, CRC/C/111, 2001, paras 679, 696, 706. Similar assessment by ECtHR, Judgment of 25 March 1993, No. 13134/87, paras 27 et seq. – Costello-Roberts v. The United Kingdom; Judgment of 19 July 2011, No. 52442/09, para. 105 – Durdevic v. Croatia. 131 CESCR Committee, General Comment No. 13: The Right to Education, E/C.12/1999/10, 1999, para. 41. 132 CRC Committee, General Comment No. 8, CRC/C/GC/8, 2006, para. 11; General Comment No. 13, CRC/C/GC/13, 2011, paras 15, 20. See also CRC Committee, Concluding Observations: Syria, CRC/C/SYR/CO/3-4, 2012, para. 71; Guinea-Bissau, CRC/C/GNB/CO/2-4, 2013, para. 63; Turkey, CRC/C/TUR/CO/2-3, 2012, para. 59; Hungary, CRC/C/HUN/CO/2, 2006, para. 55. 133 See A Cook-Sather, Sound, Presence, and Power: Student Voice in Educational Research and Reform, Curriculum Inquiry 36 (2006), p. 359-390. 134 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 271. 135 CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/3-6, 2019, para. 38; Costa Rica, CRC/C/CRI/CO/5-6, 2020, para. 27. See also L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 270.

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aware of the risks posed by the Internet and take preventive measures.136 The CRC Committee is also concerned about the continuing prevalence of psychological violence in school classes, although the focus here is rather on (cyber-)mobbing cases between students. The CRC Committee therefore calls on States Parties to strengthen teacher training in the fight against mobbing and bullying.137 26 Insofar as Article 28 para. 2 CRC states that disciplinary measures must be in conformity with the Convention, this reference applies to the CRC as a whole. Therefore, disciplinary measures need to be taken not only in accordance with Article 19 and Article 37 lit. a CRC, although these provisions are in the particular focus of Article 28 para. 2 CRC, but must also be compatible with all other rights of the Convention.138 In particular, the prohibition of discrimination in Article 2 para. 1 CRC must be guaranteed in the application of disciplinary measures.139 In addition, the child concerned must be heard in the process of establishing a disciplinary measure against him or her (see Article 12 CRC).

V. States’ Obligations to Promote and Encourage International Cooperation (Article 28 para. 3 CRC) 27

Article 28 para. 3 CRC specifies the obligation under Article 4, sentence 2 CRC in regards to education. In this way, Article 28 para. 3 CRC represents the most extensive commitment to international cooperation in education of any human rights treaty. Article 28 para. 3 CRC creates a human right of the so-called third dimension140 and is thus a collective human right or a solidarity right.141 Article 28 para. 3 CRC grants this right to developing countries, which is followed by a corresponding obligation of industrialised countries to comply with this by creating appropriate legislation, establishing institutions, and undertaking political measures.142 In return, however, there is an obligation upon developing countries to seek international assistance when necessary. This already follows from Article 4 CRC; in addition, the CRC Committee stresses the particular importance of an engagement obligation when it comes to ensuring that the right to education is enforced with international support.143 The nature and extent of the support is however not stipulated in Article 28 para. 3 CRC. Required is merely that the assistance given aims at improving the education system. The CRC Committee speaks,

136 See H Steenhoff, Das Internet und die Schulordnung, Neue Zeitschrift für Verwaltungsrecht 2013, p. 1190, at 1192 et seq. See also → Article 17 mn. 23. 137 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 40 et seq. 138 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 249. 139 CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 109. 140 See E Riedel, Menschenrechte der dritten Dimension, Europäische Grundrechte Zeitschrift 1989, p. 9-21. 141 M Nowak, in: A Eide/C Krause/A Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd edn. 2001, p. 245, at 254 et seq. 142 M Nowak, in: A Eide/C Krause/A Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd edn. 2001, p. 245, at 254 et seq. 143 See, e.g., CRC Committee, Concluding Observations: Jordan, CRC/C/15/Add.97, 2000, para. 200; Romania, CRC/C/15/Add.199, 2003, para. 53; Burkina Faso, CRC/C/15/Add.193, 2002, para. 15. See also CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 111; General Comment No. 5, CRC/GC/2003/5, 2003, para. 7.

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inter alia, of a need for technical knowledge and support in developing countries.144 Another important means of support for developing countries can also be debt relief, which might have an indirect positive effect on education.145 Nevertheless, the obligation to promote and encourage international cooperation in matters relating to education under Article 28 para. 3 CRC is to be understood as an obligation of conduct rather than result. States Parties must act in good faith to facilitate international cooperation but they are not under the duty to receive corresponding results.146

VI. Embedding of Article 28 CRC into the System of International Human Rights Protection The right to education is an established feature of international human rights law and 28 thus anchored in numerous universal and regional human rights treaties. There is no doubt about its great significance for the international human rights protection. While education rights are not exclusive to children, they are enjoyed especially by them.147 Article 28 CRC, which builds up on Article 7 of the 1924 Geneva Declaration of the Rights of the Child,148 provides a child-specific version of the human right to education.149 The general right to education is recognised at universal level, for example, in Article 26 UDHR as well as in Article 13 and Art 14 ICESCR. Article 10 CEDAW is specifically devoted to the right to education for girls. Yet, most of these treaties have a long tradition of including respect for parents’ rights in relation to children’s education. The CRC is no exception here. Although the Convention affords education rights directly to the child, there is a number of provisions relevant to education that attends to parents’ rights, for instance, in Articles 5, 14, 18 and 29 para. 1 lit. c CRC.150 At the regional level, the right to education is guaranteed, for example, in Article 29 17 ACHPR, Article 11 ACRWC, Article 10 ESC and Article 14 of the EU Charter of Fundamental Rights as well as in Article 2 of Additional Protocol No. 1 to the ECHR. The ECtHR has issued a relatively large jurisprudence on Article 2 of Additional Protocol No. 1 to the ECHR. For instance, it is incompatible with Article 2 of Additional Protocol No. 1 to the ECHR, read in conjunction with Article 14 ECHR, if a State levies school fees on foreign children to attend elementary schools and primary education, irrespective of whether they have a residence permit or not.151 In the face of long-term social exclusion and segregation in education,152 special measures are now being taken 144 See, e.g., CRC Committee, CRC/C/40/Rev.18, 2001; CRC/C/40/Rev.21, 2002; see also U Simon, (K)eine Politik für Kinderrechte?, Wege zur Verankerung der Menschenrechte von Kindern und Jugendlichen in der deutschen staatlichen Entwicklungszusammenabeit, 2012, p. 16 et seq. 145 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 62, 64. 146 C Courtis/J Tobin, Article 28, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1056, at 1062, 1111; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 28.23. 147 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 259. 148 See → Introduction mn. 12. 149 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 260. 150 See L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 271. – This fact is overlooked by K von der Decken, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 43 mn. 24. 151 ECtHR, Judgment of 21 June 2011, No. 5335/05, para. 60 – Ponomaryovi v. Bulgaria. 152 See, e.g., ECtHR, Judgment of 13 November 2007, No. 57325/00, paras 185 et seq. – D.H. and Others v. The Czech Republic; Judgment of 5 June 2008, No. 32526/05, paras 76 et seq. – Sampanis and Others v. Greece; Judgment of 16 March 2010, No. 15766/03, paras 145 et seq. – Orsus and Others v. Croatia; Judgment of 29 January 2013, No 11146/11, paras 109 et seq. – Horváth and Kiss v. Hungary.

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at the European Union level to promote the education of Roma and other minority children in the school sector and in the field of early childhood education.153 Article 14 of the EU Charter of Fundamental Rights contains two rights, which differ in content only in the areas of education they cover, namely general education on the one hand and vocational training on the other.154 In this respect, the standard is similar to Article 28 CRC and reflects a combination of both Article 2 of Additional Protocol No. 1 to the ECHR and Article 10 ESC. Obligations of EU Member States in the field of education and training vis-à-vis minor EU foreigners and minor non-EU foreigners are laid down in the EU Citizenship Directive 2004/38/EC155 and the EU Reception Directive 2013/33/ EU.156 30 Contrary to the above-mentioned guarantees, the right to education in Article 28 CRC places the child as central and expressly names the child as the rights-holder. It is not just the right of parents to bring-up and educate their children in accordance with their religious, philosophical or other beliefs and ideas. Article 28 CRC rather establishes a child’s genuine right to education. Article 2 of Additional Protocol No. 1 to the ECHR, despite its wording which places the rights of parents in the foreground,157 is not blind to the rights of the child either. On the contrary, this norm also includes subjective rights of the children concerning training158 and access to existing State education institutions.159 In recent cases, the ECtHR even described the right under Article 2, sentence 1 of Additional Protocol No. 1 to the ECHR as a fundamental right of the child, to which the parental right in Article 2, sentence 2 of the Protocol is merely accessory and must thus take second place to the best interests of the child.160 The rights laid down in Article 2 of Additional Protocol No. 1 to the ECHR are to be guaranteed free of discrimination, which is why, for example, the separate teaching of children from ethnic minorities, in particular Roma children, constitutes a violation of Article 2 of Additional Protocol No. 1 to the ECHR, read in conjunction with Article 14 ECHR, if this leads to and establishes a general discrimination against the minority.161 31 In addition, the right to education granted in Article 28 CRC extends the scope of existing rights to education through the guarantees set out in Article 28 para. 1 lit. d and lit. e CRC and in Article 28 para. 2 and para. 3 CRC in a considerable way. The human dignity of the child at school, which is taken into account by Article 28 para. 2 CRC, is, of course, also protected by the ECHR. The EComHR found early that the State bore responsibility for the administration of corporal punishment in State schools.162 The ECtHR noticed that corporal punishment administered by the headmaster of an inde153 Communications of the European Commission of 5 April 2011, COM(2011) 173 final, 6, and of 17 June 2015, COM(2015) 299 final, 4. 154 See K von der Decken, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 43 mn. 37. 155 OJ EU 2004, No L 158, p. 77. 156 OJ EU 2013, No L 180, p. 96. 157 See ECtHR, Judgment of 7 December 1976, Nos. 5095/71 et al., para. 54 – Kjeldsen et al. v. Denmark. 158 ECtHR, Judgment of 25 February 1982, Nos. 7511/76, 7743/76, para. 33 – Campbell and Cosans v. The United Kingdom. 159 ECtHR, Judgment of 23 July 1968, Nos. 1474/62 et al., paras 3-4 – Belgian language case; Judgment of 10 November 2005, No. 44774/98, para. 152 – Leyla Sahin v. Turkey; Judgment of 19 October 2012, No. 43370/04 et al., paras 141 et seq. – Catan and Others v. Moldova and Russia. 160 ECtHR, Judgment of 29 June 2007, No. 15472/02, para. 84 – Folgero v. Norway; Judgment of 10 January 2019, No. 18925/15, para. 47 – Wunderlich v. Germany. 161 ECtHR, Judgment of 5 June 2008, No. 32526/05, paras 89 et seq. – Sampanis v. Greece; Judgment of 16 March 2010, No. 15766/03, paras 156 et seq. – Orsus and Others v. Croatia. 162 EComHR, Decisions of 15 December 1977, No. 7511/76 – Campbell v. The United Kingdom; No. 7743/76 – Cosans v. The United Kingdom.

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pendent school also engaged State responsibility because a State could not absolve itself from its obligations towards pupils under Article 3 ECHR by delegating its duties to private bodies.163 The State has positive obligations to protect children against any abuse and ill-treatment by private teachers in non-State schools. For instance, the ECtHR, in 2014, had to decide on child maltreatment by teachers in Irish non-State (catholic) schools in 1973. Given the fundamental nature of the prohibition of torture according to Article 3 ECHR and the special vulnerability of children, the State authorities are obliged to protect the applicants (former students) by appropriate measures, in particular by enacting effective criminal provisions and carrying out effective official investigations. 164 That obligation had already existed in 1973 and continues to be applicable.165 A similar decision has been taken recently in the case of V.K. against Russia (2017). Here, the ECtHR held the State directly responsible for the mistreatment of a four-year-old boy by his public nursery school teachers. The Court further underscored that the State authorities had failed to carry out an effective criminal investigation.166

Article 29 [Educational Goals] 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. 2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Educational Objectives (Article 29 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Private Educational Institutions (Article 29 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 29 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 9 10

163 ECtHR, Judgment of 25 March 1993, No. 13134/87, paras 25-28 – Costello-Roberts v. The United Kingdom. 164 ECtHR, Judgment of 28 January 2014, No. 35810/09, para. 146 – O'Keeffe v. Ireland. 165 ECtHR, Judgment of 28 January 2014, No. 35810/09, para. 148 – O'Keeffe v. Ireland. 166 ECtHR, Judgment of 7 March 2017, No. 68059/13, paras 173 et seq. – V.K. v. Russia. Further see → Article 19 mn. 14.

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[Educational Goals]

I. Generalities 1

As described, Article 28 and 29 CRC are both based on a comprehensive concept of education.1 Whereas Article 28 CRC stipulates the child’s right to access education, Article 29 CRC defines the content and values of the education that has to be offered by the States Parties. Although education is not a human right that is exclusive to children, the Convention provides specific standards that are crucial for the child’s development and abilities. In order to capture all relevant aspects of the child’s education, it emerged that one article was insufficient to include all aspects of children’s rights in this context and the drafters agreed on Articles 28 and 29 CRC as twin-provisions.2 As early as 2001, the CRC Committee underlined in its General Comment No. 1 that a child’s education is not limited to learning and teaching. Efforts to promote the enjoyment of other children’s rights must not be undermined, and should be reinforced also by the values imparted in the educational process. This includes not only the content of the curriculum but also the pedagogical methods and the environment within which education takes place.3 Furthermore, the CRC Committee clearly underlines the overall function of Article 29 CRC by noting that many of the criticisms and accusations that have been raised against the Convention – such as it would undermine the family unit and promote a purely Western conception of childhood – are especially answered by this provision.4 In addition, further Convention guarantees, such as Articles 17, 23, 24, 32 and 33 CRC, also include education features for particular groups of children (children with disabilities, child workers) or particular topics for education (education about mass media, health education, education about the dangers of drugs) which are significant and closely intertwined with the aims of education enshrined in Article 29 CRC.5 Finally, Article 6 CRC which includes the child’s right to development, and Article 12 CRC, which ensures respect for the child’s own views, complement the educational objectives of Article 29 CRC.

II. Educational Objectives (Article 29 para. 1 CRC) 2

Article 29 para. 1 CRC makes it clear that not only access to education, as guaranteed by Article 28 CRC, but also the content and objective of the education are crucial. The educational objectives, which are detailed in Article 29 CRC, all relate directly to the realisation of the dignity and the rights of the child. Article 29 CRC establishes positive obligations upon the States Parties,6 and its implementation is to be regularly reported to the CRC Committee.7 Specifically, the States Parties are to report on training

See → Article 28 mn. 4. See L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1119. See also → Article 28 mn. 2. 3 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 8. 4 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 53. Further see L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1117. 5 L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1119-1120. 6 CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 115. 7 CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 112. 1 2

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programmes for teachers, timetables and hourly schedules as well as on school policy.8 The CRC Committee recommends that if Article 29 CRC is genuinely to inform educational policies, States Parties must take the necessary steps to formally incorporate these principles into their education policies and legislation at all levels.9 The CRC Committee has emphasised that the aims and values listed in Article 3 29 CRC should be reflected in domestic legislation or in administrative directives. Although they are stated in quite general terms in Article 29 CRC and their implications are potentially wide-ranging, the assumption that they are unnecessary or even inappropriate is unwarranted.10 States Parties shall therefore take the necessary steps to formally incorporate these principles into their education policies and legislation at all national, regional and local levels.11 The CRC Committee also asks for States Parties to provide significant disaggregated data on children’s attainment as an indicator of progress in meeting children’s rights under Article 29 para. 1 CRC. This includes, in particular, groups of children living in poverty, Roma children, children with disabilities, unaccompanied children, those in conflict with the law, and children deprived of parental care.12 The CRC Committee’s recommendations for addressing such disparities focus on requiring States Parties to redeploy and appropriately fund specialised assistance networks in schools, expand vocational training programmes, abolish school fees, and develop comprehensive prevention and sensitisation programmes to combat any form of violence in schools.13 In full line with the CEDAW Committee and the CERD Committee,14 the CRC Committee is also highly attuned to identifying curricula that in any way promote gender inequality or racism.15 It calls for a fundamental reworking of curricula to better encapsulate the various aims of education and the systematic revision of textbooks and other teaching materials.16 Although recognising that the implementation of a comprehensive national plan of action to enhance compliance with Article 29 CRC will require human and financial resources, the CRC Committee considers that resource constraints cannot justify a State Party’s failure to take any or enough of the measures that are required.17 States Parties are therefore and in additional view to Article 4, sentence 2 CRC, under an obligation to take all reasonable measures that will enable the effective implementation of Article 29 CRC. This means that curricula need to be reworked, and teaching materials must be revised if need be. Moreover, the school environment must be set up in conformity with the objectives listed in Article 29 para. 1 CRC.18 The educational objective set out in Article 29 para. 1 lit. a CRC, the development of 4 the child’s personality, takes Article 13 para. 1, sentence 2 ICESCR as a model. The de8 CRC Committee, General Guidelines regarding the form and the contents of the periodic reports, CRC/C/58, 1996, para. 113. 9 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, paras 17-18. 10 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 17. 11 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 17. 12 For more detail see L Lundy, Children’s Rights and Educational Policy in Europe: The Implementation of the United Nations Convention on the Rights of the Child, Oxford Review Education 38 (2012), p. 393-411. 13 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 267. 14 See CEDAW Committee, Concluding Observations: Germany, CEDAW/C/DEU/CO/6, 2009, para. 28; CEDAW/C/DEU/CO/7-8, 2017, paras 33-34; CERD Committee, Concluding Observations: Slovak Republic, CERD/C/SVK/CO/6-8, 2010, para. 16. 15 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 10. See also CRC Committee, Concluding Observations: Cabo Verde, CRC/C/CPV/CO/2, 2019, paras 78-79. 16 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, paras 11-15. 17 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 28. 18 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 29.07.

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velopment of personality is influenced by all levels of human existence, namely the physical, spiritual, psychological and social levels. The goal of education must therefore be that each individual can develop into a balanced personality according to his or her abilities and talents.19 In this context, the CRC Committee underlines the necessity of children’s rights through education, which is of an intrinsic worth.20 Article 29 para. 1 CRC has, according to the CRC Committee, a qualitative dimension which reflects the rights and inherent dignity of the child. The provision highlights the need for educational processes to be based upon the very principles it enunciates. Furthermore, the CRC Committee underscores that students do not lose their rights when they pass through the school gate.21 Although schools are primarily given the task of educating and transferring knowledge, they are also responsible for the task of providing assistance to the holistic development of the child’s fullest potential.22 Education must not only be focused on literacy, numeracy and science but also be aimed at ensuring that life skills are learned by every child, such as the ability to make well-balanced decisions and to resolve conflicts in a non-violent manner.23 According to the CRC Committee, education should be child-friendly, inspiring and motivating the individual child.24 5 The objective stipulated in Article 29 para. 1 lit. b CRC to ensure the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the UN Charter is also taken from Article 13 para. 1, sentence 2 ICESCR. The inclusion of these values requires that, at the very least, the education offered does not contradict these principles. However, their real aim is to provide a fundamental understanding of human rights, democracy and the principle of the rule of law by incorporating these principles into the school curriculum.25 Or in other words, Article 29 para. 1 lit. b CRC establishes a guarantee to human rights education.26 Alongside with Article 13 para. 1, sentence 2 ICESCR, the article provides a normative foundation stone for the various programmes of human rights education called for by the Vienna World Conference on Human Rights in 1993.27 This includes access to digital education and knowledge about the Internet; the right to human rights education applies offline as well as online.28 Furthermore, Article 29 para. 1 lit. b CRC has to be understood along with Article 42 CRC which requires States Parties to make the provisions of the Convention widely known to adults and children alike. The related concept of rights through education is thought to encapsulate the idea that education is the key site where children learn how to promote human rights, not just their own rights but generally, including defending the rights of 19 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 510 et seq. 20 L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1126. 21 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 8. 22 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 1; see also N Peleg, The Child’s Right to Development, 2019, p. 129-130, and → Article 28 mn. 3. Different assessment by F Brosius-Gersdorf, Privatschule zwischen Autonomie und staatlicher Aufsicht, Die Verwaltung 45 (2012), p. 389, at 403. 23 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 9. 24 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 12. 25 See Vienna Declaration and Programme of Action, A/CONF.157/23, Part II, 1993, para. 79. 26 Clearly so, CRC Committee, Concluding Observations: Federated States of Micronesia, CRC/C/FSM/CO/2, 2020, paras 60-61. 27 See CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 15. See also CESCR Committee, General Comment No. 13: The Right to Education, E/C.12/1999/10, 1999, para. 49. 28 E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 501. See also Human Rights Council, Resolution on the Promotion, Protection and Enjoyment of Human Rights on the Internet, A/HRC/32/L.20, 2016. Further see → Article 17 mn. 23.

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others.29 The CRC Committee requires States Parties to report on measures taken to make the principles and the provisions of the CRC and its Optional Protocols widely known to adults and children and it frequently identifies the need for child rights or human rights education in its Concluding Observations.30 In addition, the CRC Committee explains that human rights education should also provide information on the content of other human rights treaties.31 The reference to the UN Charter in Article 29 para. 1 lit. b CRC is, simultaneously, a reference to its main objective, namely the establishment and maintenance of international peace (see Article 1 para. 1 UN Charter) which is flanked by the promotion of human rights (Article 1 para. 3 UN Charter). States Parties must therefore make reasonable efforts to adapt the principles of the UN Charter in ways that will resonate with and engage children.32 Children should also be equipped with the attitudes and skills that enable them to critically discuss this subject. The educational objective established in Article 29 para. 1 lit. c CRC, the respect for 6 parents and cultural identity, is the first example of such a formulation in a human rights treaty and has no predecessor. The norm demands that the education be directed towards development of respect for parents, cultural identity, national values and diverse civilisations. The CRC Committee has summarised these aims as developing the child’s enhanced sense of identity and affiliation.33 Children’s respect for their parents and culture does, of course, not require children to accept and tolerate practices or directions that are contrary to the values of the Convention, in particular they are not obliged to tolerate practices that are harmful to them and contravene Article 19 CRC. 34 With regard to the promotion of respect for children’s own cultural identity, Article 29 para. 1 lit. c CRC has a strong link to the guarantee of cultural identity in Article 30 CRC.35 Under certain circumstances, this educational objective may conflict with the national values in the child’s country of residence. Therefore, Article 29 para. 1 lit. c CRC contains an express reference to the national values of the country from where the child originates.36 The wording of this passage, supplemented by “may”, serves to provide flexibility in the development of the curriculum for children with a different cultural or ethnic background.37 The CRC Committee acknowledges the difficulty of ensuring a balance between children’s own cultural values and national values, as the case may be. It nevertheless stresses that part of the importance of Article 29 para. 1 lit. c CRC lies precisely in its recognition of the need for a balanced approach to education and one which succeeds in reconciling diverse values and cultures through dialogue and respect for 29 For a fuller account see E Verhellen, Children’s Rights and Education: A Three-track Legally Binding Imperative, School Psychology International 14 (1993), p. 199-208; L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1132-1133. 30 See L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 269, with further references. 31 See CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 15. See also CRC Committee, Concluding Observations: Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, para. 46; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 66. Further see R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 442. 32 L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1131. 33 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 1. 34 Rightly so, L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1135. 35 See → Article 30 mn. 1. 36 Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 41-53; E/CN.4/1989/48, 1989, paras 475-483. 37 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 513 et seq.

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difference.38 In the opinion of the CRC Committee, children are capable of playing a unique role in bridging many of the differences that have historically separated groups of people from one another.39 In addition to the general educational aims that apply to all children, education and school for accompanied and unaccompanied refugee children are an important factor that can contribute to resilience to both mental trauma and post-traumatic disorders.40 It therefore seems necessary, in particular, for refugee children to receive language and remedial education41 and to be assigned teachers on needbased grounds.42 The CRC Committee has further expressed concern at the lack of support for minority languages and suggests that the right of access to education in a native language should go beyond the restricted context of language lessons and should include bilingual education. 43 This recommendation stands in full line with Article 14 para. 2 of the Framework Convention for the Protection of National Minorities (FCNM), developed in the framework of the Council of Europe in 1994.44 7 The preparation of the child for responsible life in a free society and the development of respect for the natural environment are educational objectives contained in Article 29 para. 1 lit. d and lit. e CRC. The educational objective of Article 29 para. 1 lit. d CRC is already stipulated in a similar form in Article 13 para. 1, sentence 3 ICESCR. Article 29 para. 1 lit. d CRC contains an indirect prohibition of discrimination and is closely linked to Article 2 para. 1 and Article 30 CRC. The main body of the provision asserts that education should be directed to responsible life in a free society and the second part attempts to encapsulate fundamental elements of this spirit.45 All in all, the educational objectives strive against strict egoism and rather aim at imparting the idea of a responsible life that includes respect for diversity as well as multicultural tolerance and peace education. In this context, one of the major concerns of the CRC Committee is the elimination of racism, xenophobia, misogyny and homophobia.46 This approach is strongly supported by Article 7 ICERD and Article 6 FCNM and at the level of the Council of Europe. In 1993, the Council of Europe set up the European Commission against Racism and Intolerance (ECRI) to fight more effectively against the various forms of xenophobia, racism and intolerance. The Commission regularly reviews legislation, policies and other measures of the Member States to combat racism, xenophobia, antiSemitism and intolerance effectively. For instance, ECRI recommended to the Federal Republic of Germany that comprehensive discrimination bans should be imposed that

38 See CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 4. See also CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 70; Romania, CRC/C/ROM/CO/4, 2009, para. 77. 39 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 4. 40 See J Fegert/P Plener/M Kölch, Traumatisierung von Flüchtlingskindern – Häufigkeit, Folgen und Interventionen, Recht der Jugend und des Bildungswesens 2015, p. 380, at 385 et seq. 41 F Wapler, Sozialrechtliche Leistungen der Bildungsförderung für junge Flüchtlinge, Recht der Jugend und des Bildungswesens 2016, p. 345, at 353 et seq. 42 See S Morris-Lange, Wider das Gießkannenprinzip? Formen bedarfsorientierter Schulfinanzierung zur Förderung von Kindern und Jugendlichen mit Migrationshintergrund, Recht der Jugend und des Bildungswesens 2016, p. 67, at 67 et seq. 43 CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/3-4, 2013, para. 75; Cyprus, CRC/C/CYP/CO/3-4, 2012, para. 44; Turkey, CRC/C/TUR/CO/2-3, 2012, para. 67. 44 See R Hofmann, Menschenrechte und der Schutz nationaler Minderheiten, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65 (2005), p. 587, at 610. 45 L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1141. 46 See, e.g., CRC Committee, Concluding Observations: Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, paras 64 et seq.; Algeria, CRC/C/DZA/CO/3-4, 2012, para. 64; Liberia, CRC/C/LBR/CO/2-4, 2012, para. 72; Russian Federation, CRC/C/RUS/CO/4, 2014, para. 59.

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should cover the entire school area – public and private.47 The requirements for human rights education and combating racism are even more differentiated. In terms of content, the focus ranges from an anti-racist, human rights education that is intended to raise awareness of anti-Semitism, anti-Gypsism and other racism as well as their diverse manifestations. ECRI recommends training for school principals, teachers and other school staff so that they can effectively counter racist behavior in school.48 Elements that promote racism or intolerance and work with negative stereotypes should be removed from teaching materials and textbooks. The FCNM Advisory Committee also draws attention to the need for a revision, particularly of history books.49 Conversely, the objective to develop respect for the natural environment in Article 29 8 para. 1 lit. e CRC is a novel approach. It is the first mention of the environment in a UN human rights treaty ever and reflects a growing recognition of the global and local challenges facing the natural environment and the importance of children learning respect for nature and natural resources.50 Article 29 para. 1 lit. e CRC takes account of everincreasing ideas on environmental protection, sustainable development and eco-centric worldview.51 The CRC Committee emphasises that environmental education must link issues of environment and sustainable development with socio-economic, socio-cultural and demographic issues.52 Its realisation is probably best achieved in science lessons, which, in addition to the pure facts, must also convey the need for respect and appreciation of the natural environment.53 Some legal scholars, however, even demand a holistic education for sustainability and transformative teaching,54 but this approach has no basis in Article 29 para. 1 lit. e CRC. Similarly, participation in extra-curricular demonstrations during the compulsory teaching period, such as “Fridays for Future”, cannot be justified with regard to Article 29 para. 1 lit. e CRC.55

III. Private Educational Institutions (Article 29 para. 2 CRC) Article 29 para. 2 CRC is not about the aims of education but rather protects the 9 traditional liberty of both parents and religious bodies to establish schools outside those provided for by the State.56 The guarantee of private educational institutions according to Article 29 para. 2 CRC led to differences among the States Parties during the drafting

See ECRI, Report on Germany, Sixth Monitoring Cycle, of 19 December 2019, p. 11, para. 9. Ibid, p. 13, para. 18. 49 C Altenhöner-Dion, in: R Hofmann et al. (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten, Handkommentar, 2015, Article 12 mn. 8. 50 See RA Hart, Children’s Participation: The Theory and Practice of Involving Young Citizens in Community Development and Environmental Care, 2013. 51 T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 568. 52 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, para. 13. 53 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 516. 54 See, e.g., JM Davis, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 33, at 47 et seq. 55 For more detail see C Hofstätter, Fridays for Future or Fridays at School? Der Klimastreik aus schulrechtlicher und grundrechtlicher Perspektive, Newsletter Menschenrechte 2019, p. 279, at 284; S Schmahl, Bildungsziele im Völkerrecht: Eine Analyse menschenrechtlicher Vorgaben, Recht der Jugend und des Bildungswesens 2020, p. 293, at 305-306. 56 L Lundy/J Tobin, Article 29, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1116, at 1147. 47

48

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of the Convention because it is not directly a child’s right.57 Due to the close proximity to the right of the child to access to education (Article 28 para. 1 CRC), it was finally decided – with reliance upon Article 13 para. 4 ICESCR – to include the right to private education institutions in the CRC. The CRC Committee therefore calls upon States Parties not to act in a way that restricts this right, without reasonable justification, for instance by prohibiting the creation of such private schools or by closing them down.58 However, it remains important that even privately-run educational institutions have to be managed in compliance with the provisions of Article 29 para. 1 CRC.59 Just because a child is educated outside the public-school system, does not absolve the government of the obligation to monitor the quality of the education to ensure that it complies with Article 29 CRC.60 The government is however not expected to provide funding for private educational institutions.61

IV. Embedding of Article 29 CRC into the System of International Human Rights Protection 10

None of the existing human rights treaties specify the quality of education to be provided. However, all of them attempt to define the aim of the education; and two international instruments have some connections or normative lineage to Article 29 CRC.62 For instance, Article 26 para. 2 UDHR states that education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall further promote understanding, tolerance and friendship among all nations and all racial and religious groups and thereby support the constitutive objectives of the United Nations. The objective of this soft law provision has been amended and reinforced by Article 13 para. 1 ICESCR to state that education shall also be directed to the sense of dignity of the human personality and shall enable all persons to participate in a free society.63 Thus, the imprint of Article 26 para. 2 UDHR and Article 13 para. 1 ICESCR is apparent in the text of Article 29 CRC. Yet, the most extensive definition is in Article 29 CRC which expands upon the aims of education significantly compared to its predecessors and includes entirely new clauses.64 Interestingly, some, but not all of the educational objectives as listed in Article 29 CRC have been integrated in Article 24 para. 1 ICRPD, such as development of human potential and sense of dignity, respect for human rights and human diversity, personal development and full participation in society.65 An interesting regional variation to Article 29 CRC is Article 11 para. 2 ACRWC, which includes within its aims the preservation and strengthening of positive African morals, traditional See Commission on Human Rights, Report of the Working Group, E/CN.4/1985/64, 1985, para. 102. CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/3-4, 2013, para. 75. 59 See CRC Committee, Concluding Observation: Guinea, CRC/C/GIN/CO/2, 2013, para. 73. 60 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 272. 61 Similar assessment by ECtHR, Judgment of 23 July 1968, Nos. 1474/62 et al., para. 5 – The Belgian Linguistics Case. 62 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 265 et seq. 63 See, e.g., KD Beiter, The Protection of the Rights to Education by International Law, 2005; B Saul/D Kinley/J Mowbray, The International Covenant on Economic, Social and Cultural Rights, 2014, p. 1084-1160. 64 L Lundy/P O’Lynn, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 259, at 266. 65 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 29.05. 57

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values and cultures as well as the preservation of national independence and territorial integrity.66 In contrast, other universal human rights conventions prove to be rather reserved in 11 formulating educational goals. The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was conceived as a pure anti-discrimination convention. It does not contain any independent substantive rights, but aims to achieve equality for women and girls in all areas of social life. In the area of education, too, the convention is essentially aimed at guaranteeing the same conditions and opportunities within the educational system for men and women alike.67 However, Article 10 CEDAW does not contain a provision explicitly geared towards educational goals. Only Article 10 lit. c CEDAW expresses an educational goal by obliging the Contracting States to ensure the elimination of any stereotypical view of the role of men and women at all levels of education and in all forms of instruction and education. The CEDAW Committee repeatedly refers to this provision in its Concluding Observations on the State reports and calls for the curricula and teaching materials to be designed accordingly. 68 Also, Article 5 lit. e (v) and Article 7 ICERD deal mainly with the right to education under the aspects of multi-cultural tolerance and of non-discrimination on the grounds of race.69 The 1960 UNESCO Convention against Discrimination in Education also pursues the objective to eliminate any intended or factual discrimination in school and to achieve equal opportunities. Both treaties are thus primarily intended to prohibit discrimination on the grounds of race, skin color, origin and religion in the field of education and to create multi-cultural tolerance. 70 As important as these non-discrimination principles are from a human rights perspective, neither ICERD nor the 1960 UNESCO Convention formulates further or independent educational goals. Also, on the regional European level – unlike on the African continent71 – no general 12 educational goals can be found.72 Articles 10 and 17 para. 2 ESC concentrate exclusively on vocational training and oblige the Contracting States to take diverse technical measures aimed at developing the individual personality, without addressing the educational goals in detail. Article 2 of Additional Protocol No. 1 to the ECHR stipulates a right to education as a subjective right to participate and establishes an institutional guarantee,73 but offers no position on the preferred educational goals. However, it is certain that Article 2 of Additional Protocol No. 1 to the ECHR follows an expanded concept of education, according to which education not only means the imparting of cognitive skills, but also the individual personality development. The ECtHR has already made this clear in the case Campbell and Cosans (1982).74 In terms of implementation, the Convention 66 See D Mzikenge Chirwa, The Merits and Demerits of the African Charter on the Rights and Welfare of the Child, International Journal of Children’s Rights 10 (2002), p. 157 et seq. 67 S Suelmann, Bildung in der Frauenrechtskonvention, der Kinderrechtskonvention und der Behindertenrechtskonvention der Vereinten Nationen, 2013, p. 46 et seq. 68 See, e.g., CEDAW Committee, Concluding Observations: Germany, CEDAW/C/DEU/CO/6, 2009, para. 22; CEDAW/C/DEU/CO/7-8, 2017, paras 33-34. 69 See S Farrior, The Neglected Pillar: The “Teaching Tolerance” Provision of the International Convention on the Elimination of All Forms of Racial Discrimination, ILSA Journal of International & Comparative Law 5 (1999), p. 291, at 295. 70 See Y Daudet/P-M Eisemann, Commentary on the Convention against Discrimination in Education, 2005, p. 7 et seq. 71 See → Article 29 mn. 10. 72 For more detail see S Schmahl, Bildungsziele im Völkerrecht: Eine Analyse menschenrechtlicher Vorgaben, Recht der Jugend und des Bildungswesens 2020, p. 293, at 297-298. 73 See C. Grabenwarter/K Pabel, Europäische Menschenrechtskonvention, 6 th edn. 2016, § 22 mn. 88. 74 ECtHR, Judgment of 25 February 1982, No. 7511/76, para. 33 – Campbell and Cosans v. The United Kingdom.

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States however have wide leeway, for example with regard to age limits, but also with regard to the choice of curricular subjects, the methodical-didactic approach and the performance criteria.75 However, Article 12 FCNM obliges the Contracting States to take measures in the field of education in order to gain knowledge of the culture, history, language and religion of their national minorities. Therefore, the national education system all over Europe must contain elements that allow all schoolchildren to acquire knowledge of culture, history, language and religion not only of the majority population, but also of their national minorities.76

Article 30 [Cultural Identity] In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Rights of Minority and Indigenous Children to Enjoyment of Culture, Religion and Language (Article 30 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Children from Minority or Indigenous Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. States’ Obligations to Respect, Protect, Ensure and Fulfil . . . . . . . . . . . . . . . . . 3. Enjoyment of Culture, Religion and Language in Community with Other Group Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Embedding of Article 30 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 3 7 9 13

I. Generalities 1

The respect for and the protection of the cultural identity of the child who belongs to an ethnic, religious, linguistic or an indigenous minority pursuant to Article 30 CRC supplements the other rights of the child set out in the CRC. Article 30 CRC does not constitute a sub-right of the non-discrimination principle in Article 2 para. 1 CRC, even if there is a great proximity to it,1 nor should the norm be considered a mere repetition of the other guarantees enshrined in the Convention. Article 30 CRC rather constitutes a horizontal clause that affects the interpretation of the other guarantees laid down in the Convention. In particular, Article 14 CRC, Article 17 lit. d CRC, Article 20 para. 3 and Article 29 para. 1 lit. c CRC have to be interpreted in the light of this provision. On the other hand, Article 30 CRC specifically addresses the rights of minority and indigenous children to enjoyment of culture, religion and language in community with other group members. Just like Article 27 ICCPR, Article 30 CRC recognises a genuine right to exer-

75 See ECtHR, Judgment of 23 July 1968, No. 1474/62 et al.., The Law, I. B., para. 5 – The Belgian Linguistics Case. Further examples are referred by F Hanschmann, in: J Meyer-Ladewig et al. (eds.), Europäische Menschenrechtskonvention, 4th edn. 2017, Art. 2 ZP-EMRK mn. 10. 76 See R Hofmann, Menschenrechte und der Schutz nationaler Minderheiten, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65 (2005), p. 587, at 609; C Mahler/N Weiß, Der Einfluss der internationalen Menschenrechtsverträge auf die deutsche Bildungsrechtsordnung, Recht der Jugend und des Bildungswesens 2007, p. 430, at 437. 1 See → Article 2 mn. 31.

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cise the basic dimensions of cultural belonging for indigenous children and children of an ethnic, religious or linguistic minority.2 The text of Article 30 CRC is modelled on Article 27 ICCPR and in particular 2 recognises the special needs and vulnerabilities of minority and indigenous children.3 In many States, minority and indigenous children experience greater violence, discrimination, poverty and marginalisation than children of the majority population. They often face the double disempowerment and multiple or intersectional discrimination of being both a member of a marginalised group and of being children. The innovative nature of Article 30 CRC is to be seen in affording specific protection to minority and indigenous children.4

II. Rights of Minority and Indigenous Children to Enjoyment of Culture, Religion and Language (Article 30 CRC) 1. Children from Minority or Indigenous Groups Article 30 CRC largely takes its formulation from Article 27 ICCPR and must there- 3 fore be interpreted accordingly.5 This understanding applies, in particular, to the beneficiaries of the rights to enjoyment of culture, religion and language under Article 30 CRC. These are children belonging to an ethnic, religious or linguistic minority or children of indigenous origin. However, it is striking that the concept of “persons of indigenous origin” cannot be found in Article 27 ICCPR. During the drafting of the ICCPR, there was resistance to the idea that indigenous persons should be considered minorities.6 However, the Human Rights Committee’s engagement with Article 27 ICCPR has largely been in the context of indigenous peoples on the basis that these persons invariably fulfil the criteria for ethnic, linguistic and religious minorities.7 Yet, since Article 30 CRC provides explicit protection for children of indigenous origin, they are in fact distinctions to be made between the terms “indigenous peoples” and “minorities”. At least, the CRC Committee acknowledges that the specific references to indigenous children in the Convention are indicative of the recognition that they require special measures in order to fully enjoy their rights.8 However, the CRC Committee refrains from defining the term, and there is still no consensus regarding the definition in international law.9 One possible definition is given by Article 1 para. 1 lit. b ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, which describes persons of indigenous origin as peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, 2 N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 595. 3 S Harris-Short/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1154. 4 S Harris-Short/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1158. 5 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 535. 6 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 27 mn. 30. 7 See, e.g., Human Rights Committee, Chief Bernard Ominayak and Lubicon Lake Band v. Canada, Views adopted on 26 March 1990, CCPR/C/38/D/167/1984; General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5, 1994, para. 3.1. 8 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 5. 9 See, e.g., B Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence, 2016, p. 22-37, with further references.

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or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, without prejudice to their legal status, retain some or all of their traditional social, economic, cultural and political institutions. Critically, the existence of persons of indigenous origin in a State Party under Article 30 CRC does, in the view of the CRC Committee, not depend on official recognition of the status of such children by that State.10 It is rather the subjective feeling of belonging to an indigenous or a tribal affiliation which must be regarded as a basic criterion for determining the group.11 The CRC Committee endorses the criterion of self-identification for the existence of indigenous peoples and reiterates that there is no requirement for States Parties to officially recognise indigenous peoples, including indigenous children, in order for them to exercise their rights.12 4 In contrast to the term “persons of indigenous origin”, the term “minority” is enshrined in Article 27 ICCPR. According to the definition offered in 1977 by Francesco Capotorti, former Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, a minority may be described as group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members, being nationals of the State, possess ethnic, religious or linguistic characteristics differing from those of the rest of the population, and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.13 Nevertheless, the Human Rights Committee further expands the notion of minority in Article 27 ICCPR beyond the definition suggested by Capotorti. In the opinion of the Human Rights Committee, Article 27 ICCPR protects all persons belonging to a population group sharing a common culture, religion and/or language.14 The Human Rights Committee therefore renounces, in particular, the criterion of nationality in the State of residence.15 It rather explains that the term minority includes only those non-dominant groups in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population.16 Furthermore, the Human Rights Committee holds that the existence of an ethnic, religious or linguistic minority in a given State Party does not depend on a decision by that State Party but requires to be established by objective criteria.17 Any other conclusion would fundamentally undermine the protections afforded to minorities under Article 27 ICCPR.18 5 Since Article 30 CRC has been modelled on Article 27 ICCPR, the considerations of the Human Rights Committee on minorities are likely to be transferable to Article 30 CRC. The CRC Committee has thus interpreted the right set forth in Article 30 CRC broadly, including both individual and collective minorities and establishing negative 10 See CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 19; see also S HarrisShort/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1159. 11 See also Article 1 para. 2 ILO Convention No. 169. 12 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 19. 13 Commission on Human Rights (F Capotorti), E/CN.4/Sub.2/384/Rev.1, 1979, p. 96 para. 568. 14 Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5, 1994, para. 5.1. 15 For more detail see M Nowak/WA Schabas, CCPR, Commentary, 3 rd edn. 2019, Article 27 mns. 19-20. 16 Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5, 1994, para. 5.1-5.2. 17 Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5, 1994, para. 5.2. 18 See also F Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, 1979 (reprinted in 1991), p. 35, para. 204.

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and positive obligations for States Parties.19 This extensive understanding is not a cause for disapproval or criticism, since there is no universally accepted definition of minorities.20 In line with the Human Rights Committee’s approach, the CRC Committee even considers the issue of minority protection irrespective of the fact that a State Party has entered a reservation to Article 30 CRC upon ratification arguing that minority rights protections are irrelevant according to its constitutional provisions.21 The CRC Committee rather repeatedly urges the respective States Parties to withdraw the reservation, since equality before the law may not be sufficient to ensure equal enjoyment of rights by certain minority groups who may face de facto discrimination.22 Non-recognition of minority groups by a State Party has, therefore, not deterred the CRC Committee from engaging with the implementation of the requirements of Article 30 CRC into national law. The CRC Committee also declares that the child’s rights under Article 30 CRC must be exercised in accordance with other provisions of the Convention and under no circumstances may be justified if deemed prejudicial to the child’s dignity, health and development.23 Against this background, the CRC Committee obviously prefers a pragmatic case-by-case approach and does not define the term minorities in a technical way. It has thus identified a number of specific groups as falling within the term “minority” of Article 30 CRC. They include Roma in Europe,24 the Maori in New Zealand,25 Tibetans in China and in Nepal,26 Maya and Garifuna in Belize,27 Nepalese in Bhutan,28 and Irish travellers in the United Kingdom.29 The rights conferred under Article 30 CRC are to be enjoyed by a child in a com- 6 munity with other members of a group. This formulation raises the question whether Article 30 CRC gives rise to a group or collective right (only) or whether it remains embedded in an individual rights framework. The group dimension of cultural and religious rights is well-established under Article 27 ICCPR,30 and has been reiterated by the CRC Committee. With respect to Article 30 CRC, the CRC Committee underscores that the right established is conceived as being both individual and collective and is an important recognition of the collective traditions and values in indigenous cultures.31 However, the recognition of the collective dimension of Article 30 CRC does not mean that a child is not an individual rights-holder. The CRC Committee rather conceptualises a close relationship between the children’s best interests, their cultural rights and the CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, paras 16 et seq. See B Kingsbury, Indigenous Peoples in International Law, American Journal of International Law 92 (1998), p. 414, at 415 et seq.; S Harris-Short/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1162. 21 See, CRC Committee, Concluding Observations: France, CRC/C/15/Add.240, 2004, para. 60; CRC/C/FRA/CO/4, 2009, para. 9; CRC/C/FRA/CO/5, 2016, para. 6. See also CRC Committee, Concluding Observations: Turkey, CRC/C/15/Add.152, 2001, para. 10. 22 See, e.g., CRC Committee, Concluding Observations: France, CRC/C/15/Add.240, 2004, para. 60. 23 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 22; General Comment No. 4, CRC/GC/2003/4, 2003, para. 24. 24 CRC Committee, Concluding Observations: Slovakia, CRC/C/15/Add.140, 2000, para. 19; North Macedonia, CRC/C/15/Add.118, 2000, para. 54; Republic of Moldova, CRC/C/15/Add.192, 2002, para. 49; Switzerland, CRC/C/15/Add.182, 2002, para. 59; Spain, CRC/C/15/Add.185, 2002, para. 51. 25 CRC Committee, Concluding Observations: New Zealand, CRC/C/NZL/CO/5, 2016, para. 41. 26 CRC Committee, Concluding Observations: China, CRC/C/15/Add.56, 1996, para. 20; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 67. 27 CRC Committee, Concluding Observations: Belize, CRC/C/15/Add.99, 1999, para. 19. 28 CRC Committee, Concluding Observations: Bhutan, CRC/C/BTN/CO/3-5, 2017, paras 43 et seq. 29 CRC Committee, Concluding Observations: United Kingdom, CRC/C/15/Add.188, 2002, para. 49. 30 See Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/Rev.1/Add.5, 1994, paras 1, 6.2. 31 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 16. 19

20

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need to exercise those rights collectively with group members.32 Yet, on the other hand, the CRC Committee is also clear in stating that in the case of children, the best interests of the child cannot be neglected or violated in preference for the best interests of the group.33 Accordingly, the rights under Article 30 CRC belong to individual children. They are autonomous rights-holders and not mere instruments or objects of parental, community, cultural or State preferences and interferences.34 Therefore, Article 30 CRC does not express true collective rights, but an individual right to the aspects of collective identity.35

2. States’ Obligations to Respect, Protect, Ensure and Fulfil 7

Article 30 CRC is formulated in the negative, since it requires that the rights contained therein must be “not be denied” to a minority or indigenous child. This phrase is taken directly from Article 27 ICCPR. Attempts to redraft the article in more positive terms attracted no support.36 Despite these origins, the CRC Committee has nevertheless developed case-law according to which Article 30 CRC establishes positive obligations for the States Parties. These are, on the one hand, the obligation to create conditions for the effective enjoyment of the right contained in Article 30 CRC through legislative, judicial and administrative measures.37 One of the main obligations of States Parties consists in providing accurate data on minority and indigenous groups and correlative information on the implementation of the rights of Article 30 CRC. 38 Further States’ obligations are detailed, for instance, in the CRC Committee’s Concluding Observations regarding the combined third to fifth periodic State report of Bhutan (2017). The CRC Committee remains seriously concerned about the situation of children of Nepalese ethnic origin in the State Party, in particular in relation to their right to a nationality, to education, to health and to enjoy their own culture, practise their own religion and use their own language.39 The CRC Committee therefore urges the State Party, inter alia, to review its citizenship act to extend citizenship to children born to at least one Bhutanese parent and recognise the rights of children of ethnic Nepalese origin to enjoy their own culture, practise their religion and use their language.40 Furthermore, Article 30 CRC does not only impose restraints on State interferences with religious, linguistic or cultural activities of minority and indigenous children, but also prohibits States from pursuing assimilationist policies.41 Indigenous distinct cultures, history, language and way of life should rather be recognised and respected as an enrichment of the

32 See CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, paras 30-31. For more detail see S Harris-Short/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1170-1173. 33 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 30. 34 Rightly so, S Harris-Short/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1160, 1172. 35 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 30.05. 36 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 57 et seq.; Technical review, E/CN.4/1989/WG.1/CRP.1, 1988, para. 35. 37 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 17. 38 See, e.g., CRC Committee, Concluding Observations: Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 89; Burundi, CRC/C/BDI/CO/2, 2010, para. 79; Thailand, CRC/C/THA/CO/2, 2006, para. 79; Nigeria, CRC/C/NGA/CO/3-4, 2010, para. 77; Philippines, CRC/C/PHL/CO/3-4, 2009, para. 84; Ireland, CRC/C/IRL/CO/2, 2006, para. 81. 39 CRC Committee, Concluding Observations: Bhutan, CRC/C/BTN/CO/3-5, 2017, para. 43. 40 CRC Committee, Concluding Observations: Bhutan, CRC/C/BTN/CO/3-5, 2017, para. 44. 41 CRC Committee, Concluding Observations: Brazil, CRC/C/15/Add.241, 2004, para. 71. For a fuller detail see P Thornberry, Indigenous Peoples and Human Rights, 2002, p. 239 et seq.

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State’s cultural identity,42 insofar as they are in accordance with the other provisions of the Convention and with competing rights of others.43 In that regard, the CRC Committee’s stance on cultural customary or traditional practices which it considers prejudicial to the child’s dignity, health and development (such as female genital mutilation) is uncompromising.44 The States Parties are under an obligation to ensure full implementation of the rights 8 enshrined in Article 30 CRC, also in the case of interference by non-State actors. 45 This means that States Parties are obliged to respect, protect and fulfil the rights under Article 30 CRC in a broad sense. As the CRC Committee explains, empowerment of indigenous and minority children and the effective exercise of their rights to culture, religion and language provide an essential foundation of a culturally diverse State in harmony with its human rights obligations.46 In particular, States Parties are called upon to effectively combat the high levels of violence against indigenous children and communities perpetrated by, among others, local ranchers and illegal loggers and to seriously prevent the indigenous communities’ forced eviction from their land as a result of land grabbing by ranchers.47

3. Enjoyment of Culture, Religion and Language in Community with Other Group Members Article 30 CRC remains silent on the fact whether it imposes positive obligations 9 for States Parties to take special measures to protect and foster cultural, religious and linguistic rights. However, the CRC Committee constantly stresses its concern at the discrimination of many minorities and indigenous children, particularly their lack of access to culturally appropriate services, such as health and education.48 Accordingly, the CRC Committee calls on Sates Parties to take all effective measures to tackle discrimination and ensure minority and indigenous children the effective enjoyment of their rights.49 In view of Article 2 para. 1 CRC, the CRC Committee accepts the legitimacy of affirmative actions, which may include the provision of critical services in a culturally sensitive manner.50 For instance, the right to life, survival and development according to Article 6 CRC, read in conjunction with Article 30 CRC, entails a positive conception precisely in cases related to indigenous children or children belonging to an CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 18. CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 22. See also S Harris-Short/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1176-1177. 44 See CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, paras 7-8. See also → Article 24 mns. 26 et seq. 45 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 17. Different opinion by S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 540. 46 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 82. 47 CRC Committee, Concluding Observations: Brazil, CRC/C/BRA/CO/2-4, 2015, paras 79 a and 79 b. 48 See, e.g., CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 29; Guatemala, CRC/C/GTM/CO/3-4, 2010, para. 101; France, CRC/C/FRA/CO/4, 2009, para. 101, Chile, CRC/C/CHL/CO/3, 2007, para. 73; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 56; Thailand, CRC/C/THA/CO/2, 2006, para. 78. 49 CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 30; CRC/C/AUS/CO/5-6, 2019, paras 23 et seq.; Chile, CRC/C/15/Add.173, 2002, para. 26; Latvia, CRC/C/15/ Add.142, 2001, para. 23. 50 CRC Committee, Concluding Observations: Finland, CRC/C/FIN/CO/4, 2005, paras 63 et seq.; Nicaragua, CRC/C/NIC/CO/4, 2010, para. 84; Bulgaria, CRC/C/BGR/CO/2, 2008, para. 72; Thailand, CRC/C/THA/CO/2, 2006, para. 79; Mexico, CRC/C/MEX/CO/3, 2006, para. 73. 42

43

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ethnic or religious minority.51 One of the obligations of the States Parties is therefore to generate minimum living conditions that are compatible with human dignity.52 The CRC Committee repeatedly underlines that there is a disproportionately high number of indigenous children living in extreme poverty, including high infant and child mortality rates, as well as levels of malnutrition and diseases.53 In this context, the CRC Committee expresses also its deep concerns about the structural discrimination against children belonging to indigenous groups, in particular as regards their access to education, health and an adequate standard of living.54 The right to health implies, among others, culturally sensitive and community-based services for indigenous peoples, particularly for those residing in rural and remote areas with poor infrastructure, planned and administered in cooperation with the communities concerned.55 10 There is also a strong link between right to education of indigenous and minority children, as set forth in Articles 28 and 29 CRC, and both development and self-determination under Article 30 CRC. In many countries, indigenous and minority children are stigmatised and marginalised in the education system. The first barrier to education for indigenous children is lack of access to schools which often are not placed within a safe traveling distance. The second barrier is the poor quality of the education provided in remote or rural areas where indigenous people usually live.56 The third obstacle is that children of indigenous or minority communities are often placed in schools for children with mental disabilities where a more basic and simple curriculum is followed than in ordinary schools and where they are isolated from pupils of the majority population.57 As a result, they often receive an education which compounds their difficulties and compromises their subsequent personal development instead of tackling their real problems or helping them to integrate into ordinary schools.58 The CRC Committee points out that quality education enables minority and indigenous children to exercise their rights enshrined in the CRC for their personal benefit as well as for the benefit of their community and the society as a whole. Above all, the implementation of the right to quality education of indigenous children is an essential means of achieving individual empowerment and self-determination of indigenous people.59 States Parties are therefore called upon to develop curricula for all schools which include minority history and culture in order to promote understanding, tolerance and respect.60 This 51 N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 597 et seq. 52 See also IACtHR, Judgment of 17 June 2005, Series C No. 125, para. 162 – Indigenous Community Yakye Axa v. Paraguay. 53 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 34. 54 CRC Committee, Concluding Observations: Brazil, CRC/C/BRA/CO/2-4, 2015, para. 79; Panama, CRC/C/PAN/CO/3-4, 2011, paras 80 et seq. 55 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 51. 56 See CESCR Committee, General Comment No. 13: The Right to Education, E/C.12/1999/10, 1999, para. 50; UNICEF/UNESCO, A Human Rights-based Approach to Education for All, 2007, p. 33. Further see N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 601. 57 N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 601. 58 Similarly, in that regard: ECtHR, Judgment of 13 November 2007, No. 57325/00, para. 207 – D.H. and Others v. Czech Republic. 59 See CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 57. See also CRC Committee, Concluding Observations: North Macedonia, CRC/C/15/Add.118, 2000, para. 44; Algeria, CRC/C/15/Add. 269, 2005, para. 84; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 67. 60 CRC Committee, Concluding Observations: Poland, CRC/C/15/Add.194, 2002, para. 53; North Macedonia, CRC/C/MKD/CO/2, 2010, para. 85; Republic of Moldova, CRC/C/MDA/CO/3, 2009, para. 63; Italy, CRC/C/ITA/CO/3-4, 2011, para. 79.

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demand fully aligns with the requirements set forth by Article 12 FCNM. 61 Furthermore, States Parties shall adopt special measures to ensure substantive equality for minorities in the sector of education.62 This approach is strongly supported by Article 28 para. 1 ILO Convention No. 169 which highlights that children belonging to indigenous or minority groups shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong.63 In addition, the CRC Committee welcomes States Parties’ efforts to take a broad and inclusive approach to provide linguistic support to minority children in educational systems, in the mass media and elsewhere.64 Governments should also recognise the right of indigenous people to establish their own educational institutions and facilities.65 Moreover, while Article 30 CRC does not make explicit the important relationship 11 between indigenous and minority culture and the natural rights, the enjoyment of their identity, culture and religion are closely linked to their land, sacred sites and the natural environment which historically belonged to them and continues to preserve them.66 Consequently, the exercise of the rights of Article 30 CRC requires, in many cases, the effective use of traditional territory and the use of its resources, as a prerequisite for the realisation of the child’s right to enjoy his or her own culture, to profess and practice his or her own religion.67 The exercise of cultural rights has a close relationship with the traditional indigenous territories and the use of the raw materials found within them.68 The Inter-American Court of Human Rights has indicated rightly that the loss of traditional practices as well as the harm arising from the lack of territory particularly affect the cultural identity and development of children of the indigenous community, who will not be able to develop that special way of life unique to their culture if the necessary measures are not implemented to guarantee the enjoyment of cultural and indigenous rights.69 Also, the CRC Committee refers to the importance of land rights and the harmful effects of dispossession on indigenous people.70 The non-recognition of indigenous peoples' land and resource rights, such as the Sami people's traditional fishing and reindeer husbandry rights in Finland, Norway and Sweden, is even seen by the CERD Committee as clear racial discrimination and prohibited segregation.71 See → Article 29 mn. 12. CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 25; General Comment No. 1, CRC/C/GC/2001/1, 2001, para. 11. 63 N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 600. 64 See, e.g., CRC Committee, Concluding Observations: Romania, CRC/C/ROM/CO/4, 2009, para. 95; Norway, CRC/C/NOR/CO/4, 2010, para. 60; Finland, CRC/C/15/Add.53, 1996, para. 18; Chile, CRC/C/CHL/CO/3, 2007, para. 73. 65 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, para. 60. 66 N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 595. For a fuller account see W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 30.11-30.18. 67 CRC Committee, Day of General Discussion on the Rights of Indigenous Children, 2003, para. 4. See also UNICEF, Innocenti Digest No. 11: Ensuring the Rights of Indigenous Children, 2003, p. 3 et seq. 68 See Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/Rev.1/Add.5, 1994, paras 3.2, 7; see also CRC Committee, Day of General Discussion on the Rights of Indigenous Children, 2003, para. 4. 69 IACtHR, Judgment of 24 August 2010, Series C No. 214, para. 263 – Xákmok Kásek Indigenous Community v. Paraguay. 70 See CRC Committee, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4, 2010, para. 101; Bolivia, CRC/C/BOL/CO/4, 2009, para. 85; Honduras, CRC/C/HND/CO/3, 2007, para. 83; Rwanda, CRC/C/RWA/CO/3-4, 2013, paras 56-57. 71 CERD Committee, Concluding Observations: Finland, CERD/C/FIN/CO/20–22, 2012, paras 13; CERD/C/FIN/CO/23, 2017, paras 16 et seq.; Norway, CERD/C/NOR/CO/19–20, 2011, para. 18; 61 62

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Finally, an important aspect of the CRC Committee’s understanding of cultural, religious and linguistic rights is the right of minority and indigenous children to participate in decisions that affect them. It stresses the importance of working with minority communities to develop policies to secure culturally appropriate services for children, giving particular attention to indigenous and Roma children.72 In this regard, also the views of children shall be given due weight in accordance with Article 12 CRC.73 Incidentally, the recommendations of the CERD Committee point in the same direction.74

III. Embedding of Article 30 CRC into the System of International Human Rights Protection As demonstrated,75 Article 30 CRC corresponds almost literally to Article 27 ICCPR. In other universal human rights treaties, there is no comparable right with the same extensive guarantees. Article 15 ICESCR merely requires that States Parties recognise the right of everyone to take part in cultural life, but remains silent on indigenous or minority children. The 1966 International Convention on the Elimination of All Forms of Racial Discrimination aims at eradicating all forms of racism and racial discrimination but has no exclusive focus neither on indigenous peoples nor on children belonging to these groups. Only a few ILO Conventions deal with individual aspects of the protection of the cultural identity of ethnic and indigenous minorities and tribal groups.76 Also, the 2007 UN Declaration on the Rights of Indigenous People77 addresses the group and individual rights of indigenous peoples and individuals, but the text is not legally binding and does not focus primarily on indigenous children.78 14 Also, at the European level, only partial aspects of minority rights are governed by human rights conventions. This applies in particular to the Council of Europe's 1994 Framework Convention for the Protection of National Minorities79 and the 1992 European Charter for Regional or Minority Languages.80 Both conventions only deal with partial aspects and complement each other. While the Framework Convention has a human rights character, the Language Charter primarily pursues the objective of preserving cultures.81 Belonging to a national minority group is considered in various European countries as the personal decision of each individual, which is not registered, reviewed or disputed by the State. Therefore, there are often no statistics based on ethnic characteristics. The Advisory Committee on the FCNM criticises the lack of data 13

CERD/C/NOR/CO/23–24, 2019, para. 22; Sweden, CERD/C/SWE/CO/19–21, 2013, paras 17 et seq.; CERD/C/SWE/CO/22–23, 2018, para. 16. See also S Schmahl, in: D Angst/E Lantschner (eds.), ICERD, Handkommentar, 2020, Article 3 mn. 32. 72 See CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 80; Romania, CRC/C/ROM/CO/4, 2009, para. 98; Bulgaria, CRC/C/BGR/CO/2, 2008, para. 72; Uganda, CRC/C/UGA/CO/2, 2005, para. 82; Spain, CRC/C/15/Add.185, 2002, para. 52; Nicaragua, CRC/C/NIC/CO/4, 2010, para. 84. 73 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, paras 20, 31. 74 See, e.g., CERD Committee, Concluding Observations: Slovak Republic, CERD/C/SVK/CO/9–10, 2013, para. 11; Italy, CERD/C/ITA/CO/16–18, 2012, para. 20. 75 See → Article 30 mn. 2. 76 See, e.g., ILO Convention No. 107 of 1957 and ILO Convention No. 169 of 1989. 77 A/RES/61/295, 13 September 2007. 78 For more detail see AC Rolnick, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 571, at 573 et seq. 79 ETS No. 157. Entered into force on 1 February 1998. 80 ETS No. 148. Entered into force on 1 March 1998. 81 S Boysen, in: eadem et al. (eds.), Europäische Charta der Regional- oder Minderheitensprachen, Handkommentar, 2011, p. 100.

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collection and also complains that the guarantees of the Convention are not applied to immigrant minorities.82 In addition, there are several resolutions at the European level that deal specifically with the full integration of the Roma. The EU has set itself the goal of obliging the Member States to introduce national education, employment, health and housing policies for the Roma community by 2020.83 The EU also calls on the Member States to step up their protection against Roma hostility in the societies.84 The OSCE and the Council of Europe support this initiative through their own action plans.85 Finally, ethnicity and the protection of minorities is also a component of an individual’s identity that is protected by Article 8 ECHR.86

Article 31 [Leisure and Recreational Activities] 1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definition of the Scope (Article 31 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. State Obligations to Respect, Ensure and Fulfil (Article 31 para. 2 CRC) . . . . IV. Embedding of Article 31 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 7 9

I. Generalities There is no doubt that homo ludens is an integral part of humanity and that the 1 child’s right to play and leisure is an integral element in sustainable development of the individual. It provides important opportunities for learning as well as for resilience and realisation of all children’s rights.1 The right to play, leisure and recreational activities as recognised by Article 31 CRC is a right which is only acknowledged under international law for persons below the age of 18 years. No other human rights instruments do recognise this right for children (nor for adults).2 The CRC Committee underscores that the right to play, leisure and recreational activities under Article 31 CRC is important in itself but also in relation to other rights of the Convention.3 The right to play, 82 See, e.g., Advisory Committee, 4th Recommendation regarding Germany, 19 March 2015, ACFC/OP//IV(2015)003, paras 18, 30. 83 Communication of the European Commission of 5 April 2011, COM (2011) 173 final. 84 Communication of the European Commission of 17 May 2015, COM (2015) 299 final. 85 For a fuller account see M Schwarz, Der EU-Rechtsrahmen zur Integration der Roma, Deutsches Verwaltungsblatt 2016, p. 609-616. 86 ECtHR, Judgment of 15 March 2012, Nos. 4149/04 and 41029/04, para. 58 – Aksu v. Turkey; Judgment of 27 April 2010, No. 27138/04, para. 57 – Ciubotaru v. Moldova. For a fuller account see WA Schabas, The European Convention on Human Rights. A Commentary, 2015, Article 8, p. 358, at 379-380. 1 T Collins/L Wright, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 306, at 307, 314 et seq. 2 P David, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 31, 2006, Article 31 mn. 3. 3 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 2.

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leisure and recreational activities in Article 31 CRC is closely linked to a number of other Convention rights, without which the objectives of Article 31 CRC would not be achievable. These provisions include Article 2, Article 3, Articles 5 to 7, Article 12, Articles 13 to 17, and Articles 28 and 29 CRC.4 In addition, the right to rest and leisure is already found in Principle 7 of the 1959 Declaration of the Rights of the Child.5 The rights under Article 31 para. 1 CRC must be understood in a holistic sense; the individual elements contained in the provision condition and reinforce one another.6 Their realisation is considered by the CRC Committee to be fundamental to the child's social and cognitive development, well-being and identity development.7 In sum, the rights under Article 31 CRC are justified on both the basis that they represent valid interests to which all children should be entitled by virtue of their intrinsic value, and because the realisation of these rights aligns with children’s developmental needs. 8

II. Definition of the Scope (Article 31 para. 1 CRC) 2

Despite the interdependent and holistic nature of the rights under Article 31 CRC, the CRC Committee has formed the view that each right retains an essential core that is unique.9 The right to rest is also contained in Article 24 UDHR and Article 7 lit. d ICESCR. However, these guarantees almost exclusively refer to conditions of work and professional life and reflect the historical struggle of the labour movement to reduce working hours.10 On the other hand, the scope of the right to rest in Article 31 para. 1 CRC is significantly larger, because it does not contain any specific reference points to work.11 Thus, the right to rest according to Article 31 para. 1 CRC applies to both the organisation of the working life of children as well as to other situations relating to their education, upbringing and recreation.12 With regard to working conditions, the CRC Committee encourages States Parties to ratify and implement ILO Conventions Nos. 79, 90, 138, and 182 in order to guarantee appropriate limitations on the nature, hours and days of work, and to ensure rest periods and recreational facilities, in accordance with their evolving capacities.13 Regarding other activities beyond work, in particular to education and exertion of any kind, the CRC Committee makes it clear that the right to rest also includes the right to sufficient sleep and adequate breaks.14 Especially in the field of school education, the CRC Committee has found violations of the right to rest when the 4 See CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 9, 20, 21. For a fuller account see G Lansdown/J Tobin, Article 31, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1195, at 1197-1198. 5 See → Introduction mn. 5. 6 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 8. 7 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 8 et seq. For more detail see N Peleg, The Child’s Right to Development, 2019, p. 133-134. 8 See C Davey/L Lundy, Towards Greater Recognition of the Right to Play: An Analysis of Article 31 of the UNCRC, Children and Society 25 (2009), p. 3, at 4 et seq. 9 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 14a-g. 10 See B Saul/D Kinley/J Mowbray, The International Covenant on Economic, Social and Cultural Rights, 2014, p. 472-484; G Lansdown/J Tobin, Article 31, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1195, at 1200. See also → Article 31 mn. 9. 11 See OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 689. 12 CRC Committee, General Guidelines Reporting on the Form and Contents of Periodic Reports, CRC/C/58, 1996, para. 118. See also C Davey/L Lundy, Towards Greater Recognition of the Right to Play: An Analysis of Article 31 of the UNCRC, Children and Society 25 (2009), p. 3, at 4. 13 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 56 b. 14 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 14 a.

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demands on children become so high that there is hardly any time left for relaxation, and when stress and pressure at school cause mental illness in children.15 Likewise, the CRC Committee expresses concern that children in collective accommodation (such as community accommodation for asylum seekers) are routinely lacking places to retreat and play in accordance with their age.16 Children with disabilities should also be granted effective access to recreation opportunities.17 The right to leisure is closely intertwined with the right to rest, whereby the right 3 to rest is a necessary prerequisite for the right to leisure. As in the case of the right to rest, the right to leisure, which was recognised in various international conventions before the CRC entered into force, originally focused on the organisation of working conditions.18 The right to leisure pursuant to Article 31 para. 1 CRC, however, goes further and extends generally to the fact that individuals can pursue their inclinations, hobbies and interests, and have time for themselves in order to cultivate their minds. 19 This includes the opportunity to rest and not to be bound by obligations, involving formal education, work, home responsibilities or the exercise of other life-sustaining functions.20 The CRC Committee also derives from Article 31 para. 1 CRC an obligation of the States Parties to create opportunities for leisure activities, especially for children with disabilities,21 for street and homeless children,22 for imprisoned and for working children.23 Article 31 para. 1 CRC is the first provision in an international treaty that contains 4 the legally binding recognition of a right to play (alternative 3) and a right to recreational activities appropriate to the age of the child (alternative 4). Both provisions are based on the knowledge that playing in particular has a positive effect on the social abilities of children and is of great importance for their cognitive and social development.24 The right to play is different from the right to active recreation appropriate to the age of the child. When playing, the child should be completely free and autonomous in the way he or she plays and not directed or controlled by adults, but merely cared for and supported in their activities where needed. The right to play includes unstructured, informal activities of children. It aims at promoting intrinsic motivation25 as well as creativity, flexibility and understanding between the generations.26 In contrast, active recreation 15 CRC Committee, Concluding Observations: Japan, CRC/C/15/Add.90, 1998, para. 22; CRC/C/15/ Add.231, 2004, para. 49 a; Republic of Korea, CRC/C/KOR/CO/3-4, 2012, paras 62-63; CRC/C/KOR/CO/ 5-6, 2019, para. 41. 16 CRC Committee, General Comment No. 7, CRC/GC/7/Rev.1, 2005. See also → Article 22 mns. 22, 30. Further see Article 17 para. 3 of the Return Directive 2008/115/EC, OJ EU 2008, No. L 348, p. 98, which specifies that opportunity for recreation and leisure for underage deportees shall be guaranteed. 17 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 24. Further see W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 31.17. 18 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 549. 19 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 549, R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd edn. 2007, p. 465. 20 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 13, 14 b. 21 CRC Committee, Concluding Observations: South Africa, CRC/C/15/Add.122, 2000, paras 34 et seq. 22 CRC Committee, Conclusion Observations: The Philippines, CRC/C/15/Add.258, 2005, paras 71 et seq. 23 CRC Committee, Concluding Observations: Georgia, CRC/C/15/Add.124, 2000, paras 68 et seq. 24 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 9. See also P David, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 31, 2006, Article 31 mn. 55. 25 CRC Committee, General Comment No. 17, CRC /C/GC/17, 2013, para. 14 c. 26 CRC Committee, General Comment No. 17, CRC/C /GC/17, 2013, para. 10.

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appropriate to the age of the child is, as a rule, organised by adults.27 However, both forms have in common that they are based on a free decision-making process of the child and are carried out without any compulsion.28 The CRC Committee stresses that compulsory or enforced games and sports or compulsory involvement in a youth organisation do not constitute recreation within the meaning of Article 31 para. 1 CRC.29 In that regard, the right to play and the free engagement in recreational activities are closely linked to the right to leisure.30 Both include offline and online activities. In regard of the latter, the CRC Committee encourages States Parties to develop policies and take the necessary measures to safeguard the opportunities of the digital environment for all children, stressing the importance of equal access to the Internet and social media. 31 The CRC Committee has often criticised the lack of adequate leisure and recreation facilities in the States Parties.32 In particular, this applies to children living in collective accommodation.33 States Parties must therefore make particular efforts to grant refugee children and children with disabilities living in collective accommodation access to the rights under Article 31 CRC.34 Finally, Article 31 CRC creates an obligation to reduce the placement of children in collective housing to the minimum necessary, or at least to provide age-appropriate retreats and childcare facilities in the collective housing. Articles 21-22 of the EU Reception Directive 2013/33/EU also require child and family-friendly accommodation for refugees. In practice, however, many accommodation centres do not yet provide adequate opportunities for refugee children to pursue leisure activities and play.35 5 The CRC Committee has also underscored several times that the right to play is not simply the freedom to muck about, but has important environmental considerations. According to the CRC Committee, the right to rest and play is often hindered by a shortage of stress-free environments, and children’s right to play is especially at risk in many urban environments, where the design and density of housing combined with noise, pollution, waste, traffic and dangers create a hazardous environment for young children.36 States Parties are therefore obligated to ensure that the air, water and land attendant to play are safe and clean for children.37 In addition, in view of the text of Article 31 para. 1 CRC, which includes the obligation that engagement in the rights to play and recreation must be “appropriate to the age of the child”, the CRC Committee calls upon States Parties to provide age-appropriate activities for children. It specifically urges States Parties to ensure the provision of clubs, sports facilities, organised games as

27 P David, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 31, 2006, Article 31 mn. 56. 28 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 14 d. 29 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 14 d. 30 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 9. 31 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 45, 57 d. See also → Article 17 mns. 4 et seq. 32 See, e.g., CRC Committee, Concluding Observations: The Netherlands Antilles, CRC/C/15/Add.186, 2002, para. 54; Mozambique, CRC/C/15/Add.172, 2002, para. 58. 33 CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 6 a. 34 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 23 et seq. 35 See German Institute for Human Rights (Deutsches Institut für Menschenrechte), Entwicklung der Menschenrechtssituation in Deutschland: Januar 2015-Juni 2016, 2016, p. 75 et seq. 36 See CRC Committee, General Comment No. 7, CRC/C/GC/7/Rev.1, 2005, para. 34. See also CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 32 et seq. 37 T Kaime, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 563, at 572.

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well as cultural activities to girls and boys of all ages, taking into account the children’s evolving capacities and developmental needs.38 The right to free participation in cultural and artistic life finds its origin in Article 6 27 UDHR and Article 15 para. 1 ICESCR, but is more holistically formulated in Article 31 para. 1 CRC. Contrary to Article 27 UDHR, Article 31 para. 1 CRC is not limited to the cultural life of the community, but rather leaves the reference point fully open. Thus, the cultural and artistic development of the child can take place both at home and at school, on the street, in public places or elsewhere.39 Unlike Article 15 para. 1 ICESCR, Article 31 para. 1 CRC emphasises the free participation in cultural and artistic life, thus underscoring the inviolable freedom of choice of leisure activities. Therefore, Article 31 para. 1 CRC also clearly protects the child’s negative freedom not to participate in cultural or artistic life.40 Moreover, Article 31 para. 1 CRC explicitly mentions artistic life in addition to cultural life in order to stress the independent role of both. The notion of cultural and artistic life includes both the classical intellectual significance of art and culture as well as the cultural manifestations of a society.41 The peculiarity of the concept of cultural and artistic life in Article 31 para. 1 CRC lies in the specific targeting of the child.42 On the one hand, the child must have the right to join adults in their cultural and artistic endeavours, also to expand his or her horizon.43 On the other hand, the child must have a right of access to child-friendly cultural and artistic offerings. 44 Children should also be given space for their own creativity.45 Culture and arts should not be imposed from above or from external forces, with the role of States Parties acting as facilitators rather than suppliers.46

III. State Obligations to Respect, Ensure and Fulfil (Article 31 para. 2 CRC) Article 31 para. 1 CRC requires States Parties to recognise the rights contained there- 7 in. Article 31 para. 2 CRC complements this obligation by explicitly stating that, at least in regards to the child’s right to full participation in cultural and artistic life, States Parties shall respect and promote the right of the child and encourage equal opportunities. Thus, Article 31 CRC calls, in accordance with Articles 2 and 4 CRC, for positive duties of the Contracting States. They have to take all appropriate legislative, administrative and other measures for the effective implementation of the rights recognised in Article 31 CRC.47 Furthermore, the States Parties have a positive duty to promote the provision of appropriate and equal opportunities for cultural and artistic activities by private 38 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 58 f. See also G Lansdown/ J Tobin, Article 31, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1195, at 1209. 39 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 14 et seq. 40 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 14 f, 14 g. 41 For more detail see S Yee, The Right to Take Part in Cultural Life under Article 15 of ICESCR, International Comparative Law Quarterly 47 (1998), p. 905-923. 42 P David, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 31, 2006, Article 31 mn. 78. 43 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 11 et seq. 44 R Hodgkin/P Newell, Implementation Handbook for the Convention on the Rights of the Child, 3 rd edn. 2007, p. 470. 45 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 12. 46 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 14. 47 See CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 56-58. See also CRC Committee, Concluding Observations: Tonga, CRC/C/TON/CO/1, 2019, paras 57-58.

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individuals, as well as for active recreation and leisure activities.48 The States’ duty to promote the rights under Article 31 CRC includes the right of free access to cultural and artistic activities as well as the guarantee of children’s right to participation. States Parties are called upon to establish the necessary legislative and administrative framework and to provide financial resources within the meaning of Article 4 CRC.49 The promotion of the cultural activity of the child must be carried out without discrimination according to Article 2 para. 1 CRC50 and in terms of age and maturity.51 The older the child becomes, the greater the weight of his or her free choice, and the less guidance by adults will be required.52 8 In addition to this obligation to fulfil, the States Parties also have an obligation to respect which obliges them not to hinder the child directly or indirectly in the exercise of its rights under Article 31 para. 1 CRC.53 However, this does not mean that the legal protection of minors in favour of the child's right to leisure and play activities should no longer apply. Especially with regard to game applications on smartphones, which are downloaded free of charge, but for which additional services can be called up (so-called in-app purchases), regulations on the protection of minors remain fully applicable.54 The CRC Committee also recognises the requirements for the protection of the child (as an “obligation to protect”) from health hazards and from safety risks as essential for the realisation of the right to leisure and play.55 In addition, the CRC Committee calls on the States Parties to take ecological, regulatory, crime-fighting and child-friendly measures to ensure that the child has sufficient play and leisure opportunities in public areas.56 These include the creation of playgrounds, play streets and green spaces57 as well as the education and awareness of those caring for children.58 Specific attention should be given to the promotion of particularly vulnerable groups of children, such as girls, children living in poverty, children with disabilities, children in orphanages or other institutions, children of ethnic or indigenous minorities and children in armed conflict.59

IV. Embedding of Article 31 CRC into the System of International Human Rights Protection 9

Besides Article 12 ACRWC, which has been formulated on the model of Article 31 CRC, no other human rights convention contains a norm corresponding in its entirety to the content of Article 31 CRC. Article 31 CRC is however influenced by various individual guarantees of other human rights treaties and guidelines. Thus, Principle 7 of the 1959 Declaration of the Rights of the Child states that the child shall have full opportuJ Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 581. CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 15 b. 50 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 16. 51 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 14 e, 17. 52 CRC Committee, General Comment No. 17, CRC/C /GC /17, 2013, para. 19. 53 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 54 a. 54 See S Meyer, Gratisspiele im Internet und ihre minderjährigen Nutzer, Neue Juristische Wochenschrift 2015, p. 3686-3691. 55 CRC Committee, General Comment No. 17, CRC/C /GC/17, 2013, paras 17 et seq. 56 CRC Committee, General Comment No. 17, CRC/C/GC /17, 2013, paras 33 et seq. 57 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 39 et seq. 58 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 56 a. 59 See CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, paras 48 et seq. Further see CRC Committee, Concluding Observations: Slovenia, CRC/C/SVN/CO/3-4, 2013, para. 12; Federated States of Micronesia, CRC/C/FSM/CO/2, 2020, paras 62-63. 48

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Introduction to Articles 32-36 nity for play and recreation.60 The right to rest and leisure is influenced by Article 7 lit. d ICESCR, which recognises this right, like Article 24 UDHR, primarily in connection with working conditions.61 Other international agreements which deal with the right to rest and leisure also provide protections only in terms of conditions of employment (e.g., Article 2 of ILO Conventions Nos. 79 and 90, and Article 2 ESC). The right to free participation in cultural and artistic life is reflected to some extent in 10 Article 27 UDHR and Article 15 ICESCR. Yet, Article 27 UDHR refers to the right to participate in the cultural life of the community, whereas in Article 31 CRC there is no such specification. Article 5 lit. e vi ICERD also contains a right to equal participation in cultural activities, but this standard concentrates primarily on equal treatment and nondiscrimination aspects. The right to play and to recreational activities appropriate to the age of the child is, after all, already in its scope ratione personae primarily related to children and is therefore only mentioned in Article 31 CRC and Article 12 ACRWC.

Introduction to Articles 32-36 General Survey The provisions in Articles 32 to 36 CRC protect the child against various forms of 1 exploitation and abuse. Article 32 CRC protects against economic exploitation, Article 33 CRC against drug abuse, Article 34 CRC against sexual abuse and exploitation for sexual purposes, and Article 35 CRC against child trafficking. All these forms of exploitation are interdependent and, in most cases, cannot be viewed in isolation.1 Article 35 CRC is particularly interrelated with Article 32 and Article 34 CRC, since child trafficking is often used for the economic or sexual exploitation of children.2 Article 33 CRC protects not only children from drug abuse, but also from their employment in drug production and trafficking, both of which are also forms of economic exploitation within the meaning of Article 32 CRC.3 The prostitution of children is a particular form of child exploitation, so that Article 34 CRC is to be read in conjunction with Article 32 CRC. Article 36 CRC, as a subsidiary catch-all provision, 4 supplements the above articles and protects against all other forms of exploitation not explicitly mentioned in Articles 32 to 35 CRC. Overall, Articles 32 to 36 CRC must be understood in a collective and interrelated way. They have further a strong connection with the protection of the child from all forms of violence which is enshrined in Article 19 CRC.5 The exploitation of children goes often hand in hand with a violation of numerous 2 fundamental Conventions rights which protect the healthy physical, mental and social

60 See T Collins/L Wright, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, 2019, p. 306, at 312. 61 See → Article 31 mn. 2. 1 See N M’jid Maalla, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 135, at 138. 2 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 559; V Muntarbhorn, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 34, 2007, Article 34 mn. 4. 3 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 559. 4 See O Jantschek, in: S von Schorlemer (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 127, at 130. See also → Article 36 mn. 1. 5 See → Article 19 mn. 2.

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Introduction to Articles 32-36 development of the child, such as the rights to family life, education, health and leisure.6 Therefore, the provisions on the exploitation of children are not only interdependent inter se, but rather they are also to be considered in a wider context in connection with other Convention rights.7 The abolition of these forms of abuse is, in practice, only possible if other children’s rights are strengthened.8 Finally, the provisions of Articles 32 to 36 CRC are closely related to Article 39 CRC, which promotes, inter alia, the rehabilitation and reintegration of former child workers.9 3 Already with the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages of 7 November 1962, the first step to protect children from the arbitrariness of adults was taken. Reports on the misuse of children are, of course, still on the “agenda”, which is why the necessity of the provisions of Articles 32 to 36 CRC has not diminished in the last decades.10 The main cause for the exploitation of children is poverty.11 Boys and girls who live in precarious economic situations, in particular children, whose parents suffer from HIV/AIDS or are imprisoned, are particularly at risk of becoming victims of sexual and economic exploitation. They are often compelled to offer sexual services or undertake dangerous work in order to provide for their own survival and that of their siblings or parents.12 Moreover, poverty and subsequent child exploitative labour lead to a lack of educational opportunities.13 The CRC Committee is further highly concerned about the lack of protection from all forms of violence and abuse, including exploitation, for children in the context of international migration. Restrictive migration and asylum policies and the absence of sufficient regular channels of migration render migrant and asylum-seeking children, including unaccompanied children, particularly vulnerable to suffering violence and abuse during their migration journey and in the countries of destination.14 The CRC Committee therefore finds it essential that States Parties take all necessary measures to prevent and combat the illicit transfer and non-return of children in the context of international migration, including early identification measures to detect victims of trafficking and abuse.15 4 In a second line, the exploitation of children also results from a corresponding demand, which is rather independent of the child’s poverty.16 States Parties must therefore make efforts to reduce these demands. For example, consumer behaviour in industrial 6 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 262; O Jantschek, in: S von Schorlemer (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 127, at 131. 7 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 13 et seq. See also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 559, 580 et seq., 588 et seq. 8 See J Kooijmans, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 75-81. 9 See → Article 39 mn. 1. 10 Similarly, W Heintschel von Heinegg, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, Band VI/2, 2009, § 175 mn. 56. 11 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 262 et seq., V Muntarbhorn, The Convention on the Rights of the Child: Reaching the Unreached?, Bulletin of Human Rights 91/2 (1992), p. 66, at 69. 12 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 36. 13 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 263. 14 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 40. 15 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 41, 43. 16 N M’jid Maalla, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 135, at 138.

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countries concentrated on the production of cheap products must be minimised as much as possible.17 Particularly vulnerable groups of children are in need to be given special protection. Street or homeless children, especially orphans and children who have broken out of the family are often victims of various forms of exploitation, since they have no protection from the family or other carers.18 Also, children in crisis and post-war areas are particularly at risk of being forced into child exploitative and damaging labour.19 Although Article 3 para. 1 CRC mentions the best interests of the child as merely one (however primordial) interest among others, there can be no doubt that there is no room for other considerations having a higher priority than the best interests of the child in the prohibition of exploitation.20

Article 32 [Protection from Economic Exploitation] 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Protection from Economic Exploitation (Article 32 para. 1 CRC) . . . . . . . . . . . III. Positive State Obligations to Protect Children from Economic Exploitation (Article 32 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 32 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 9 16

I. Generalities Article 32 CRC is primarily designed to address the problem of illegal exploitative 1 child labour. Such labour is the main phenomenon of economic exploitation of children. Although child exploitative labour is banned in most of the States Parties, this prohibition is often ignored in reality and practice. Child exploitative labour is an elusive phenomenon because there are no verifiable figures. According to ILO estimates, around 215 million children were involved in illegal child labour worldwide in 2009,

17 See M Rupprecht, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 19, at 32 et seq. 18 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 275. 19 B Dünnweller, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 91, at 92 et seq. 20 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 285.

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of which 126 million were carrying out dangerous, even hazardous work.1 Similar figures are applicable for 2013 (around 168 million child labourers); and an estimated 85 million of these children work in hazardous industries.2 In terms of geographical distribution of exploitative child labour, Africa ranks highest. One-fifth of children living in Africa are in child labour, the absolute number raises to 72 million.3 Asia and the Pacific rank second-highest; 7 per cent of all children are in child labour in this region.4 In particular, the work of children in quarries is increasing in some regions of the Asia-Pacific region.5 In 2016, various NGOs, inter alia Amnesty International, reported on the use of child labour in the production of palm oil that is supplied to nine leading multinational enterprises. Children as young as eight years of age worked on palm plantations in Singapore under hazardous conditions.6 In 2013, the Rana Plaza disaster in Bangladesh killed 1133 people, including many child labourers. The Rana Plaza housed five companies that produced clothing for Northern companies that fulfil consumer demand for fast, disposable and cheap fashion.7 In America, Europe, Central Asia and the Arab States, the percentage of child labourers is significantly lower but there are still around 20 million children who are supposed to do work that is harmful to their development.8 Children work in all sectors of society, but mostly in the agricultural and industrial sectors.9 However, all the listed figures are not fully verified. There is the presumption of a high number of unreported cases, for instance, a much higher number of girls involved in household chores.10 All in all, it is to be supposed that millions of children are exploited economically and are denied the most basic human rights. The activities that children are involved in range from working in factories, sweatshops and agriculture, to making matches and fireworks to street vending.11 The work carried out by children remains highly gendered. Domestic chores, often unpaid, are frequently allocated to girls. Boys tend to work outside the home, and they often suffer from illnesses and injuries as a result of the type of the work carried out.12 2 This unverified quantitative situation of children in situations of economic exploitation is, on the one hand, due to the fact that there is no uniform definition of damaging child labour or economic exploitation of children. This problem has not been solved during the drafting of Article 32 CRC for two reasons. Firstly, Article 32 CRC does not set a minimum age or minimum ages for the admission into employment. During 1 ILO, Accelerating Action Against Child Labour. Report of the Director-General, International Labour Conference, 99th session, 2010, p. 5. 2 See G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 458. 3 ILO, Global Estimates of Child Labour, Results and Trends 2012-2016, 2017, p. 12. See also P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1226-1227. 4 ILO, Global Estimates of Child Labour, Results and Trends 2012-2016, 2017, p. 12. 5 See M Kaltenborn/N Reit, Das Verbot der Aufstellung von Grabsteinen aus Kinderarbeit, Neue Zeitschrift für Verwaltungsrecht 2012, p. 925, at 926, with further references. 6 Amnesty International, The Great Palm Oil Scandal: Labour Abuses Behind Big Brand Names, 2016. 7 See G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 456. For more figures and statistical data see ILO, Global Estimates of Child Labour: Results and Trends, 2012-2016, 2017, p. 13 et seq. 8 ILO, Global Estimates of Child Labour: Results and Trends, 2012-2016, 2017, p. 12-13. 9 ILO, Global Estimates of Child Labour: Results and Trends, 2012-2016, 2017, p. 12-13. 10 P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1227. 11 For more detail see G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 459. 12 See, e.g., CRC Committee, Concluding Observations: Côte d’Ivoire, CRC/C/CIV/CO/2, 2019, para. 48. For a fuller account see J Driscoll, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 283, at 286 et seq.

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the drafting of the Convention, it became evident that it would be impossible to set homogeneous minimum ages for all States and all forms of work. Secondly, drafters acknowledged that a significant body of international law on child labour already existed, particularly with regard to ILO Convention No. 138. It was therefore deemed sufficient that the CRC makes references to the conventions adopted by ILO to ascertain the precise extent of the obligations under Article 32 CRC.13 Therefore, the standards on child labour contained in Article 32 CRC and in the relevant ILO Conventions are understood to be complementary to each other.14 The CRC Committee often refers to the ILO Conventions and recommends States Parties to ratify and apply relevant ILO standards.15 Article 32 CRC does not define the terms “economic exploitation” and “work”, either. 3 There is no doubt that some forms of work may be appropriate for children and from which they can benefit (so-called “light work” or “beneficial work”). Through such light work, children learn to take responsibility or acquire new skills.16 Such work is done mainly within the family home or business.17 The CRC Committee considers light child labour not as harmful but rather as beneficial to child’s development.18 The vocational training and employment of adolescents are also determined by the CRC Committee as decent work, provided that it is appropriate for the age and maturity of the child.19 Accordingly, Article 32 CRC does not refer to this form of work. In the view of the CRC Committee, adolescents even have the right to exercise light and age-appropriate work, as this can also contribute to the fulfilment of a self-determined life. 20 In that regard, adolescents’ age-appropriated work can also be seen as a living economic right and as a tool for protecting working children from exploitation.21 Therefore, damaging child labour in the sense of Article 32 CRC is characterised by the fact that children are exploited and the work performed is detrimental to their physical and mental development. Even the mere threat of exploitative work is inconsistent with the best interests of the child.22 But also within this framework of so-called “exploitative child labour”, child labour remains an overarching term for various situations: domestic (household) and external work, remunerative and non-remunerative work, voluntary and compulsory labour, periodic and permanent, and all-day activities.23 Illegal child labour is as diverse as the causes that lead to it.24 Depending on the country and region, there are different cultural, social and economic factors that create exploitative child labour, although poverty remains the primary cause for the prevalence of exploitative 13 For more detail on the drafting of Article 32 CRC see Y Noguchi, 20 Years of the Convention on the Rights of the Child and International Action Against Child Labour, International Journal of Children’s Rights 18 (2010), p. 515-534. 14 G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 472. 15 See the references in: L Swepston, Article 32: Protection from Economic Exploitation, 2012, p. 28 et seq. 16 For more detail see M Liebel, Protecting the Rights of Working Children Instead of Banning Child Labour: Bolivia Tries a New Legislative Approach, International Journal of Children’s Rights 23 (2015), p. 529-547. 17 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 267. 18 CRC Committee, CRC/C/20, Report of the Fourth Session, 1993, Annex V, p. 51. 19 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, paras 73 et seq. 20 See CRC Committee, General Comment No. 20, CRC/C/GC /20, 2016, para. 85. 21 M Liebel, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 349, at 360 et seq., calls for a much more extensive interpretation of economic and labour rights of children. 22 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 221. 23 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 264. 24 B Dünnweller, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 91, at 99.

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child labour.25 The abolition of exploitative child labour therefore presupposes that the responsible authorities deal in detail with the specific situation in the State or region concerned.26 4 On the other hand, the potentially large unreported figure demonstrates the fact that exploitative child labour is usually done informally, within sectors non-amenable to data collection, or even in clandestineness.27 The main reason for this situation is again poverty of children and their families.28 Moreover, child labour is usually profitable for employers, as children can be more easily forced to perform certain activities than adults. They regularly do not engage in strikes, do not demand a high income, and can be replaced quickly.29 Sometimes children are used just because of their physical properties; for instance, because of their small size they can be utilised in mining. For some countries, child labour is also an important economic factor.30 For example, about 150,000 children work in the Indian stone industry. In other areas of India, such as agriculture and the service sector, children are even employed at the age of seven years for economic reasons.31 In total, around 12.6 million children in India make heavy child labour, especially children in rural areas.32 5 There is no doubt that the medium- and long-term consequences of such exploitative child labour are fatal. Exploitative child labour not only has a negative impact on the development and health of the affected child but also continues affecting the person into adulthood and therefore endures in the next generation.33 Children who have to work often have no access to education, which is why they are usually unable to read or write. This prevents them regularly from gaining access to qualified and well-paid work in the future.34 In order to improve their future family income, they will again be forced to send their children to work prematurely.35 This creates an intergenerational poverty spiral which demonstrates a serious threat to a sustainable economic and social development of the society.36 This shows that exploitative child labour is not only the result of poverty, it is also a root cause of it.37 Beyond the immediate consequences for children, exploitative child labour has also significant social adverse consequences and economic costs for society in general.38 25 See J Driscoll, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 283, at 288. 26 B Dünnweller, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 91, at 101. 27 See CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 35. See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 263. 28 J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 779. 29 O Cvejić Jančić, in: eadem (ed.), The Rights of the Child in a Changing World, 2016, p. 1, at 33. 30 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 263. 31 V Yadlapalli, in: O Cvejić Jančić, (ed.), The Rights of the Child in a Changing World, 2016, p. 267, at 180. 32 J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 767 et seq. 33 See D König, in: E Klein (ed.), Globaler demographischer Wandel und Schutz der Menschenrechte, 2005, p. 222, at 238 et seq. 34 For more detail see J Driscoll, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 283, at 291-292. 35 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 263. 36 J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 784 et seq.; GK Lieten, Child Labour in India: Disentangling Essence and Solutions, Economic and Political Weekly 37 (2003), p. 3467-3469. 37 See Stockholm Declaration and Agenda for Action, 1st World Congress on Commercial Sexual Exploitation of Children, 1996, para. 6. See also T Buck, International Child Law, 2014, p. 86. 38 P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1227-1228.

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II. Protection from Economic Exploitation (Article 32 para. 1 CRC) According to its wording, Article 32 para. 1 CRC contains a right of the child to 6 be protected from economic exploitation and from certain forms of child labour. The CRC Committee recommends constantly that States Parties take all necessary measures to prevent, combat and eradicate exploitative child labour.39 However, the actual text of Article 32 para. 1 CRC posits a less onerous obligation on States Parties to recognise the right of a child to be protected from economic exploitation and hazardous or harmful work. Therefore, States Parties are not required to abolish immediately all the practices listed in Article 32 CRC. Given the complex, secret and interconnected nature of such practices, it would be unrealistic to expect States to eradicate this problem overnight. 40 However, the progressive nature of the obligations to protect the child from economic exploitation requires States Parties, as a minimum, to take immediate steps towards the full realisation of Article 32 CRC, read in conjunction with Article 4 CRC.41 Despite the CRC Committee’s strongly-worded recommendations, Article 32 CRC 7 does not prohibit child work per se, but rather economic exploitation and work that is likely to be hazardous or to be harmful to the child’s health or personal development.42 The term “economic exploitation” implies that a certain profit or advantage is made by using children; the term “exploitation” implies that someone is unlawfully receiving an advantage at the expense of the child.43 Of course, not all economically motivated actions in relation to children are exploitative in nature; there can also be legitimate forms of child labour. Likewise, not all forms of child labour can be seen as a threat to health or physical, mental, spiritual, moral or social development of children. There are certain lighter activities which children are permitted, especially because they can offer positive experiences for children and take over a positive role of work in adolescents’ lives.44 However, in any case, working fulltime, excessively long working hours, work which is physically or mentally overly demanding, work which entails an excessive responsibility, or work which hinders the mental and social development of the child, is detrimental to the child’s development.45 The CRC Committee issues particular warnings about the exploitation of children in vulnerable and unmonitored situations, such as begging, illegal activities, in rural areas and among indigenous children.46 Article 32 39 CRC Committee, Concluding Observations: Turkey, CRC/C/TUR/CO/2-3, 2012, para. 63; Albania, CRC/C/ALB/CO/2-4, 2012, para. 79; Afghanistan, CRC/C/AFG/CO/1, 2011, para. 67 d; Liberia, CRC/C/LBR/CO/2-4, 2012, para. 79 a; Tunisia, CRC/C/TUN/CO/3, 2010, para. 58. 40 Rightly so, P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1231. 41 See → Article 4 mn. 21. 42 P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1232; see also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 32.13-32.14. 43 See CRC Committee, Report on the fourth session, CRC/C/20, 1996, Annex V, p. 51; Report on the fifth session, CRC/C/24, 1994, p. 42, para. 6 c. See also CRC Committee, Concluding Observations: Sri Lanka, CRC/C/LKA/CO/5-6, 2018, para. 51. 44 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 86. See also S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 563, G Van Bueren, The International Law on the Rights of the Child, 1995, p. 264; B Dünnweller, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 91, at 93. 45 Y Noguchi, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 21, at 26 et seq. See also CRC Committee, Concluding Observations: Namibia, CRC/C/NAM/CO/2-3, 2012, para. 67 b; Myanmar, CRC/C/MMR/CO/3-4, 2012, para. 85 c. 46 See CRC Committee, Concluding Observations: Montenegro, CRC/C/MNE/CO/1, 2010, para. 63; Slovakia, CRC/C/SVK/CO/2, 2007, para. 62; China, CRC/C/CHN/CO/3-4, 2013, para. 85; Argentina, CRC/C/ARG/CO/3-4, 2010, para. 72; Bolivia, CRC/C/BOL/CO/4, 2009, para. 73.

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para. 1 CRC covers all forms of employment, including employment within the family and informal employment that are detrimental to a child’s health and development.47 However, the CRC Committee calls particular attention to hazardous conditions in the mining, work in the tobacco sector or on banana plantations, in garbage dumps and in harmful domestic work.48 8 Although the CRC does not address slavery or similar practices expressly, this is undoubtedly the most serious and worst form of any economic exploitation prohibited by Article 32 para. 1 CRC.49 An example of this are girls, some no more than eight years old, who work in Morocco as household help for up to 100 hours per week and are, in addition, subject to verbal and physical abuse. The CRC Committee therefore urges the governments to extend State labour inspections to households as well.50 Also, the slavery-like work and the physical and sexual abuse in the 1990 s of so-called “fallen” girls and women in the “Magdalene Laundries” in Ireland, which were led by religious congregations of Catholic sisters, takes the CRC Committee as an opportunity to call on the Holy See for internal investigations and compensation for victims and their families.51 An absolute prohibition also applies to bonded labour, which is still widespread, for instance, in parts of India. It also often concerns indigenous people in several countries in South Asia, Africa and Latin America.52 The Inter-American Commission on Human Rights has documented many reported allegations of adverse effects on the personal integrity of indigenous peoples due to mining and debt bondage, which mainly affect children.53 Article 32 para. 1 CRC is applicable not only to contractual employment relationships, but also to exploitative employment generally and in case of exploitative domestic (household) work.54

III. Positive State Obligations to Protect Children from Economic Exploitation (Article 32 para. 2 CRC) 9

Article 32 para. 2 CRC requires the States Parties to take appropriate legislative, administrative, social and educational measures to realise the implementation of the prohi-

47 CRC Committee, Concluding Observations: Panama, CRC/C/PAN/CO/3-4, 2011, para. 66; Mozambique, CRC/C/MOZ/CO/2, 2009, para. 79. 48 See CRC Committee, Concluding Observations: Guyana, CRC/C/GUY/CO/2-4, 2013, para. 59 c; Togo, CRC/C/TGO/CO/3-4, 2012, para. 65; Guinea, CRC/C/GIN/CO/2, 2013, para. 79 a; CRC/C/GIN/CO/ 3-6, 2019, para. 14; Malawi, CRC/C/MWI/CO/2, 2009, para. 66; Ecuador, CRC/C/ECU/CO/4, 2010, para. 70; Albania, CRC/C/ALB/CO/2-4, 2012, para. 78. 49 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 271. See also CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 61; Mongolia, CRC/C/MNG/CO/5, 2017, para. 66; El Salvador, CRC/C/SLV/CO/3-4, 2010, para. 77; Turkey, CRC/C/TUR/CO/2-3, 2012, para. 63. 50 CRC Committee, Concluding Observations: Morocco, CRC/C/MAR/CO/3-4, 2014, paras 65 b, 68. 51 CRC Committee, Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, para. 38. 52 As to India see RS Srivastava, Bonded Labour in India: Its Incidence and Pattern, ILO Working Paper, Special Action Programme to Combat Forced Labour, DECLARATION/WP/43/2005; J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 785 et seq. As to the other parts of the world see N Espejo-Yaksic, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 587, at 603. 53 See IAComHR, OEA/Ser.L/V/ii, Doc. 47/15, 2015, paras 322-328 – Indigenous peoples, afro-descendent communities, and natural resources: human rights protection in the context of extraction, exploitation, and development activities. 54 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 269.

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bition of exploitative and harmful work for children.55 In general, States Parties enjoy discretion which measures they take in combatting economic exploitation of children, but they have to ensure that the measures undertaken are effective and in accordance with the other Convention rights. As a general guide, the CRC Committee recommends that the measures adopted must focus on prevention, protection and reintegration. 56 States Parties shall undertake studies and collect data to determine the nature and scope of child labour.57 The result should be used to develop national strategies to eradicate exploitative child labour and its causes, in particular poverty and harmful cultural traditions.58 The CRC Committee further recommends that States strengthen and amend existing legislation to ensure that they include provisions prohibiting child labour.59 Legislative measures should be accompanied by other supportive measures, such as administrative or policy measures, in order to be effective. For instance, the CRC Committee advocates the development of national strategies at all governmental levels and departments60 as well as social measures, ranging from adopting social protections measures and cash transfer schemes61 to public employment programmes for adult family members to eradicate poverty62 and the designing of recovery and reintegration programmes for children who have been victims of economic exploitation.63 In addition, the CRC Committee has stressed the need for States Parties to pay special attention to those categories of children who are most vulnerable to child labour, such as girls, children from minority ethnic groups, orphans, children in street situations and refugee children.64 In particular, the CRC Committee warns that migrant children who are undocumented, stateless, unaccompanied or separated from their families, are particularly vulnerable to various abuses including child labour. The CRC Committee therefore calls on States Parties to take all necessary measures to combat those situations. 65 It further reminds States Parties that migrant children above working age, irrespective CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 28, 37. See CRC Committee, Report on the fifth session, CRC/C/24, 1994, para. 177 b. See also CRC Committee, Concluding Observations: Moldova, CRC/C/MDA/CO/3, 2009, para. 65; Egypt, CRC/C/EGY/CO/ 3-4, 2011, para. 78; Cameroon, CRC/C/CMR/CO/2, 2010, para. 69; El Salvador, CRC/C/SLV/CO/3-4, 2010, para. 76. 57 CRC Committee, Concluding Observations: Bhutan, CRC/C/BTN/CO/2, 2008, para. 67 a; Serbia, CRC/C/SRB/CO/1, 2008, para. 68; Timor Leste, CRC/C/TLS/CO/1, 2008, para. 80; China, CRC/C/CHN/CO/3-4, 2013, para. 86 a; Argentina, CRC/C/ARG/CO/3-4, 2010, para. 73 c; Syria, CRC/C/SYR/CO/3-4, 2012, para. 77 a. 58 See, e.g., CRC Committee, Concluding Observations: Chad, CRC/C/TCD/CO/2, 2009, para. 78; Sierra Leone, CRC/C/SLE/CO/2, 2008, para. 69. 59 See CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 61; Armenia, CRC/C/ARM/CO/3-4, 2013, para. 50; Egypt, CRC/C/EGY/CO/3-4, 2011, para. 79; Democratic People’s Republic of Korea, CRC/C/PRK/CO/4, 2009, para. 61. 60 CRC Committee, General Comment No. 5, CRC/C/GC/2003/5, 2003, paras 37-39. See also → Article 4 mn. 6. 61 CRC Committee, Concluding Observations: Angola, CRC/C/AGO/CO/2-4, 2010, para. 66; Kuwait, CRC/C/KWT/CO/2, 2013, para. 71; Cameroon, CRC/C/CMR/CO/2, 2010, para. 70. 62 For a fuller account see P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1250 et seq. 63 See CRC Committee, Concluding Observations: Bosnia and Herzegovina, CRC/C/BIH/CO/2-4, 2012, para. 71; Cambodia, CRC/C/KHM/CO/2, 2011, para. 68; Chad, CRC/C/TCD/CO/2, 2009, para. 77; Madagascar, CRC/C/MDG/CO/3-4, 2012, para. 60; Sudan, CRC/C/SDN/CO/3-4, 2010, para. 79. 64 See, e.g., CRC Committee, Concluding Observations: Bangladesh, CRC/C/BGD/CO/4, 2009, para. 82; Slovenia, CRC/C/SVN/CO/3-4, 2013, para. 69; Bulgaria, CRC/C/BGR/CO/2, 2008, para. 59; Mozambique, CRC/C/MOZ/CO/2, 2009, para. 79; Thailand, CRC/C/THA/CO/3-4, 2012, para. 75; Chad, CRC/C/TCD/CO/2, 2009, para. 77; Djibouti, CRC/C/DJI/CO/2, 2008, para. 67. 65 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 39, 41-44. 55

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of their status, should enjoy equal treatment to that of national children in respect of remuneration, other conditions of work and terms of employment which should all be fair and decent.66 By considering the situation of children associated with the street, the CRC Committee calls for comprehensive measures, including the provision of support for the transition of children to education.67 10 Beyond the general positive obligations in Article 32 para. 2 CRC, there are also specific positive duties emanating from the sub-paragraphs lit. a to lit. c of the article that must be undertaken by States Parties. These include, first, the establishment of a minimum age for admission to employment (Article 32 para. 2 lit. a CRC).68 The drafting history shows that the reference to employment rather than work in Article 32 para. 2 lit. a CRC limits the scope of the obligation to determine a minimum age.69 Given the vast range of activities undertaken by children that could constitute work (such as washing the dishes, caring for siblings, preparing food etc.), a wider approach was deemed to be highly impractical. The minimum age requirement must therefore be understood to apply only to employment, a discrete form of work in which a child performs an activity under the direction of another person in an economic relationship.70 While the text leaves the exact age up to the discretion of the States Parties, the CRC Committee has given directions in this regard. It thereby points to the widely recognised ILO standards which generally set the age at 14 or 15 years.71 This obligation also requires that the States Parties ensure birth registration in accordance with Article 7 CRC. 72 Furthermore, Article 32 para. 2 CRC is closely related to Article 28 CRC. Because of the intrinsic relationship between access to compulsory education and harmful child labour, the minimum age should be set at the same age limit as the age at which the compulsory school attendance ends.73 Only by these means can it be prevented that children are denied a primary school education.74 Providing children with free access to school education and the rise of literacy is the most effective way to protect children from detrimental child labour.75 In order to enable children to make use of this right, monetary payments and financial subsidies from the part of the State authorities have proved to be a useful tool when predicated to parents or caregivers on the condition that the children attend school.76 Furthermore, the CRC Committee expresses concern about the inadequate 66 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 45, 46. 67 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 59. See also N Peleg, The Child’s Right to Development, 2019, p. 137. 68 See also CRC Committee, Concluding Observations: Tonga, CRC/C/TON/CO/1, 2019, paras 59-60. 69 See Commission on Human Rights, Report of the Working Group, E/CN.4/1986/39, 1986, paras 72-76. 70 Rightly so, P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1263-1264. 71 See CRC Committee, Concluding Observations: Myanmar, CRC/C/MMR/CO/3-4, 2012, para. 86; Iceland, CRC/C/ISL/CO/3-4, 2012, para. 51; Mauritania, CRC/C/MRT/CO/2, 2009, para. 76; Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 69; Austria, CRC/C/AUT/CO/3-4, 2012, para. 58; Panama, CRC/C/PAN/CO/3-4, 2011, para. 67. 72 See → Article 7 mns. 2 et seq. 73 Y Noguchi, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 21, at 24, 28. See also → Article 28 mn. 7. 74 See CRC Committee, Concluding Observations: Moldova, CRC/C/15/Add.192, 2002, para. 53; Sudan, CRC/C/15/Add.190, 2002, para. 63; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 61. See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 265; P Alston, Article 32, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1225, at 1238-1239. 75 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 273. 76 See J Kooijmans, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 75, at 79 et seq.; G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 461.

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protection of children aged 16-17 years against hazardous work and recommend States Parties to ensure that this kind of work is prohibited for all children under 18 years, and that the prohibition of heavy and hazardous work for children is effectively implemented.77 Furthermore, according to Article 32 para. 2 lit. b and lit. c CRC, the States Parties are 11 obligated to create regulations on working hours and working conditions as well as penalties and other sanctions for the effective enforcement of the child’s protection against exploitation. These provisions are based on the practical insight that the efforts required to abolish exploitative child labour must necessarily take some time before they come to fruition. Without losing sight of the goal of a complete prohibition, the working conditions of working children have to be improved through means of appropriate protection standards and by removal of the worst forms of detrimental child labour.78 In particular, the ban on hazardous work, such as dealing with toxins, hazardous materials, lifting heavy loads or working underground, should be implemented effectively and without exception. In order to enforce the prohibition of damaging child labour, the States Parties are to include in their national legislation a definition of hazardous work79 and provide adequate monitoring and complaints mechanisms for affected children, as well as providing sufficient and dissuasive sanctions and penalties.80 Thereby, regard should be taken to the relevant ILO Conventions which regulate the hours of work for young workers, particularly in regards to night work.81 In this context, it must be underlined that Article 12 CRC, which states that the view of the child has to be given due weight in accordance with the age and maturity of the child, does not trump labour rules and standards which are set up to protect persons even without or against their own will and misuse.82 States Parties should also take into account other relevant provisions when combating 12 exploitative child labour. In this respect, Article 32 para. 2, sentence 2 CRC explicitly refers to other international conventions. These include, in particular, ILO Convention No. 138 on the Minimum Ages for Admission to Employment (Minimum Age Convention, 1973) and ILO Convention No. 182 on the Worst Forms of Child Labour (Worst Form of Child Labour Convention, 1999).83 The CRC Committee calls upon the States Parties to accede to both ILO Conventions.84 Especially the influence of ILO Convention No. 182 on Article 32 CRC is clear and, in the opinion of the CRC Committee, also has 77 See CRC Committee, Concluding Observations: China, CRC/C/CHN/CO/3-4, 2013, paras 85-86; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 61; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 68; Armenia, CRC/C/15/Add.225, 2004, para. 61; Bangladesh, CRC/C/BGD/CO/4, 2009, para. 83. 78 See Commission on Human Rights (Rapporteur Bouhdiba), Exploitation of Child Labour, E/CN.4/ Sub.2/479/Rev.1, 1982, para. 16. 79 See CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 152; Concluding Observations: Guinea-Bissau, CRC/C/GBN/CO/2-4, 2013, para. 64; Republic of Korea, CRC/C/KOR/CO/3-4, 2012, para. 70; Sudan, CRC/C/SDN/CO/3-4, 2010, para. 79. 80 See CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 153; Concluding Observations: Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 66; Azerbaijan, CRC/C/AZE/CO/3-4, 2012, para. 70; Burkina Faso, CRC/C/BFA/CO/3-4, 2010, para. 69; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 90; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 60; Sri Lanka, CRC/C/LKA/CO/5-6, 2018, para. 42; Mozambique, CRC/C/MOZ/CO/2, 2009, para. 81. 81 G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 473. 82 Rightly so, Y Noguchi, 20 Years of the Convention on the Rights of the Child and International Action Against Child Labour, International Journal of Children’s Rights 18 (2010), p. 515, at 518 et seq. 83 For more detail on the two ILO Conventions see Y Noguchi, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 21, at 23-33. 84 CRC Committee, Recommendations, Day of General Discussion: Economic Exploitation, CRC/C/20, 1993, Annex VI, para. 3.

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an effect on the States’ obligations to protect children’s rights extraterritorially. The obligations of the States Parties to combat exploitative child labour, as regulated in Article 32 para. 2 CRC, do not only demand the States authorities to refrain from any intervention detrimental to the child’s development, but also oblige the States Parties to protect children from exploitative labour by private third parties located also within its jurisdiction, namely multinational enterprises.85 This includes the obligation upon the States to issue statutory prohibitions as well as to take effective measures to encourage private third parties to comply with the prohibition and to sanction them in the event of counterfeiting.86 This requirement is widely undisputed for the territorial State and has found its standardisation in Article 32 para. 2 lit. c CRC.87 13 In contrast, it remains unclear whether this standard also requires the territorial State to take action against human rights violations emanating from private individuals and multinational enterprises in another State. Such duties to protect human rights extraterritorially are not agreed under international law yet. However, in 2012 an expert group from Maastricht has postulated a duty on the part of the State with regard to transnational corporations, if the company has its activity centre or carries out essential business activities in the territorial State.88 In its General Comment No. 16, adopted in April 2013, the CRC Committee takes up this recommendation and calls, in view of Article 32 CRC, for an appropriate State duty to ensure the protection of children against exploitation by or with the help of transnational corporations and multinational enterprises.89 Support for this approach of the CRC Committee can further be found in Article 8 of ILO Convention No. 182 and Article 4, sentence 2 CRC, both of which call for general international cooperation in the realisation of human rights.90 Multinational enterprises have come thus under human rights scrutiny, many of them have adopted voluntary self-regulation codes or corporate social responsibility.91 14 Yet, despite all these developments, there is no direct normative obligation of multinational enterprises to respect the conditions set up by Article 32 CRC. Companies are solely encouraged by, but not obliged to respect human rights. It still remains with the States Parties to fulfil their obligation to protect human rights not only in the home country but also in the host country, by binding enterprises to strict domestic standards of labour law. In 2011, the Human Rights Council endorsed the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework”, which outline that the responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. 92 This standard exists independently of States’ abilities or willingness to fulfil their own human rights obligations. Also, the CRC Committee recognises that the globalisation of economies and business operations and related processes of decentralisation, outsourcCRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 28, 38 et seq. See M Kößler/M Saage-Maaß, Extraterritorialer Menschenrechtsschutz durch die Hintertür des Kommunalrechts?, Kritische Justiz 47 (2014), p. 461, at 463. 87 See M Krajewski, Kommunaler Menschenrechtsschutz durch Verbote von Grabmalen aus ausbeuterischer Kinderarbeit, Die Öffentliche Verwaltung 2014, p. 721, at 723. 88 Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, 2012, para. 25. 89 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 40 et seq. See also CRC Committee, Concluding Observations: Guinea, CRC/C/GIN/CO/3-6, 2019, paras 14 et seq. 90 Similarly, M Krajewski, Kommunaler Menschenrechtsschutz durch Verbote von Grabmalen aus ausbeuterischer Kinderarbeit, Die Öffentliche Verwaltung 2014, p. 721, at 723. 91 See G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 477. See also E Kocher, Transnationales Arbeitsrecht?, Archiv des Völkerrechts 57 (2019), p. 183 et seq. 92 Human Rights Council, HRC/PUB/11/04, 2011. 85

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ing and privatisation of State functions have affected the enjoyment of human rights.93 Nevertheless, the CRC Committee rightfully continues to rely on State obligations and does not pursue the questionable concept of directly binding human rights obligations for non-State actors, including transnational corporations.94 The CRC Committee rather concludes that the corporation is also to be protected from unlawful intrusions into its private rights. In fact, multinational enterprises are objects of international law, rather than its subjects. Only States and international organisations, that are based on treaties between States, are endowed with legal personality under international law. Consequently, multinational enterprises are recognised as private actors with private rights that need to be defended against excesses of the State by appealing to human rights standards. 95 Along with outlining State obligations regarding the impact of business activities and operations on children’s rights, the CRC Committee encourages businesses to contribute positively to the realisation of these rights. But still, there is no direct applicable duty on multinational enterprises. As non-State actors, they do not have any positive obligation to observe human rights standards; this duty remains with the States which have ratified the CRC.96 Finally, it should be noted that black and white grids are not to be thought of in this area, either. While some of multinational enterprises may have negative effects on the welfare of children and tend to exploit children economically, others do respect their responsibilities and may also provide children with essential goods and services that they need to grow up and develop.97 Last but not least, it should be remembered that human rights law is neutral with 15 regard to trade liberalisation or trade protectionism. Human rights and children’s rights approach to trade focus only on processes and outcomes.98 It is against this background that the CRC Committee calls on States Parties to ensure child rights impact assessments are conducted prior to the conclusion of trade agreements with a view to ensure that measures are taken to prevent violations of Article 32 CRC are occurring. 99

IV. Embedding of Article 32 CRC into the System of International Human Rights Protection Article 8 para. 2 ICCPR covers, inter alia, the exploitation of children under the term 16 of “servitude”. Furthermore, the Human Rights Committee focuses on the worst forms of child labour under the heading of Article 24 ICCPR and has spoken of children employed as domestic servants in conditions that are often tantamount to slavery. 100 In CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 47. S Schmahl, The Fight against Poverty and the Right to Development in the German Legal Order, in: M Schmidt-Kessel (ed.), German National Reports on the 20th International Congress of Comparative Law, 2018, p. 483, at 499. 95 PT Muchlinski, Human Rights and Multinationals: Is there a problem?, International Affairs 77 (2001), p. 31-47, at 32; idem, Multinational enterprises and the law, 2nd edn., 2010, p. 509-514. 96 Rightly so, PT Muchlinski, Human Rights and Multinationals: Is there a problem?, International Affairs 77 (2001), p. 31, at 36. Sceptical assessment by G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 479 et seq. 97 See CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 33. See also S Jodoin/ C Pollack, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 216, at 265. 98 S Jodoin/C Pollack, in: C Fenton-Glynn (ed.), Children’s Rights and Sustainable Development, 2019, p. 216, at 270. 99 CRC Committee, Concluding Observations: Australia, CRC/C/ASU/CO/4, 2012, para. 28. 100 Human Rights Committee, Concluding Observations: Madagascar, CCPR/C/MDG/CO/3, 2007, para. 21. For more detail see M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mn. 37. 93

94

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addition to these norms, the protection of children and adolescents from economic and social exploitation is the object of Article 10 para. 3 ICESCR, the content of which is comparable to Article 32 CRC.101 Like this provision, Article 10 para. 3 ICESCR protects against work that harms the morality or health of children and adolescents, which endangers their lives or hinders their development. Unlike Article 10 para. 3 ICESCR, Article 32 CRC does not refer to the average development of the child, but to his or her individual development opportunities, which in turn creates a more comprehensive scope of protection.102 The exploitative use of child workers as defined in Article 10 para. 3 ICESCR must be sanctioned. The States Parties have to establish binding age limits, under which the employment of children is legally prohibited and punishable by law (Article 10 para 3, sentence 4 ICESCR). However, Article 10 para. 3 ICESCR also leaves room for legitimate child labour, for example in the form of light work.103 To this extent, there is indeed a parallel between this norm and Article 32 CRC.104 17 Protection against economic and social exploitation of children and adolescents is also ensured by means of a number of conventions and recommendations within the framework of the ILO.105 On the one hand, it is worth mentioning the 1973 ILO Minimum Age Convention No. 138, which prescribes a minimum age for child labour. This Convention supersedes earlier minimum-age conventions which applied to specific groups or certain sectors of the economy, e.g., agriculture, industry or fishing.106 ILO Convention No. 138 was designed to have a more wide application in all spheres of economic activities.107 Although it has 172 States Parties (as of May 2020), the effectiveness of this Convention is extremely low since it concedes Member States a wide discretion in defining child labour and contains many clauses for exceptions and exemptions with regard to economic problems.108 The Convention does not apply, inter alia, for light working activities in private households and family undertakings, although it has not been conclusively clarified what is to be understood as light work.109 Article 7 para. 1 of Convention No. 138 only states that light work is such work undertaken by children between the ages of 13 and 15 years which should not be likely to be harmful to the health or development and should not prejudice their attendance at school, their participation in vocational orientation or training programmes. This vagueness gives Member States flexibility to determine what is acceptable or not.110 18 Also, Article 3 of the 1999 ILO Worst Form of Child Labour Convention No. 182, which amends but does not supersede ILO Convention No. 138, prohibits the worst forms of child labour such as slavery, the use of child soldiers, prostitution and pornography, as well as production and trafficking in drugs. Different to ILO Convention No. 101 A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 242. 102 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 221. 103 F Humbert, The Challenge of Child Labour in International Law, 2009, p. 63. 104 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 563. 105 For a fuller account see F Humbert, The Challenge of Child Labour in International Law, 2009, p. 83 et seq. 106 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 562, T Buck, International Child Law, 2014, p. 92 et seq. 107 G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 465. 108 For more detail see G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 465-467. 109 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 265 et seq. 110 See RA Mavunga, A Critical Assessment of the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999, PER/PELJ 16 (2013), p. 140 et seq.

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138, ILO Convention No. 182 is action-oriented with substantive provisions. The aim of the Convention is the effective elimination of the worst forms of child labour via an immediate and comprehensive approach.111 Also, works that are harmful to the health or safety of children by their nature or due to the circumstances in which they are performed, fall within the ambit of Article 3 lit. d of ILO Convention No. 182 and are examples of unconditionally prohibited and eliminated forms of child labour.112 ILO Convention No. 182, which belongs to the so-called international core labour standards,113 has been ratified by 186 States (as of May 2020). However, in countries where exploitative child labour is common, the ratification process has taken a long time or is still pending. For instance, India ratified ILO Convention No. 182 only in June 2017.114 Ongoing efforts at the universal level are needed in order to implement the right of the child to be protected from economic exploitation and to achieve Goal 8.7 of the UN Sustainable Developments Goals, according to which immediate and effective measures shall be taken to eradicate forced labour, the worst forms of child labour and to end modern slavery.115 At the European level, the protection of children from exploitation is ensured, in 19 particular, by Article 7 ESC, which goes beyond the scope of Article 32 CRC in various respects. For instance, the Contracting States are obliged under Article 7 para. 1 ESC to fix the minimum age for admission to employment at 15 years. Exceptions are only permissible in regards to light work which does not endanger the health, morals or education of children. A minimum age higher than 15 years (Article 7 para. 2 ESC) must be laid down for admission to employment in occupations classified as dangerous or harmful to health. In particular, it is intended to prohibit the employment of children at school age where employment would prevent them from taking full advantage of their education (Article 7 para. 3 ESC). Furthermore, Article 7 para. 5 ESC grants children and young people the right to fair remuneration and appropriate allowances. Furthermore, Article 4 ECHR contains a strict prohibition of slavery and servitude. 20 These terms are interpreted by the ECtHR in accordance with ILO Conventions No. 138 and No. 182.116 The ECtHR does not exclude remunerated work from forced labour within the meaning of Article 4 ECHR, since the norm primarily aims at protecting every individual’s right to decide freely whether he or she wants to work voluntarily.117 The (in)adequacy of remuneration is only a “second” factor for determining proportionality. The Court also considers slavery-like practices of child labour as a form of prohibited servitude.118 In a case where the State did not take adequate measures, especially of 111 See G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 467. 112 For more detail see RA Mavunga, A Critical Assessment of the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999, PER/PELJ 16 (2013), p. 140, at 146; J Kane, What the Economic Crisis Means for Child Labour, Global Social Policy 9 (2009), Supplement, p. 175, at 180 et seq. 113 M Krajewski, Kommunaler Menschenrechtsschutz durch Verbote von Grabmalen aus ausbeuterischer Kinderarbeit, Die Öffentliche Verwaltung 2014, p. 721, at 722. 114 For a fuller account see J Gathia/S Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 126; G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 470. 115 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 25. 116 See ECtHR, Judgment of 23 November 1983, No. 8919/80, paras 32 et seq. – van der Mussele v. Belgium. 117 See ECtHR, Judgment of 23 November 1983, No. 8919/80, para. 40 – van der Mussele v. Belgium. See also H Satzger/P Siegle, Remuneration and Forced Labour, European Criminal Law Review 10 (2020), p. 241, at 244 et seq. 118 ECtHR, Judgment of 26 July 2005, No. 73316/01, paras 90 et seq. – Siliadin v. France.

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a criminal nature, in order to protect effectively an African girl from exploitation within the household of a French family, the ECtHR also found a violation of Article 4 ECHR.119 Compulsory prostitution and the recruitment of child soldiers can also be included within the concept of slavery or servitude in Article 4 ECHR.120 21 Finally, Article 32 para. 1 of the EU Charter of Fundamental Rights contains a strict prohibition of exploitative child labour, and thus partly resembles Article 32 CRC.121 The prohibition of child labour is considered as an individual and justiciable right.122 The minimum age for entry into the working life must not be less than the age at which compulsory education ends.123 According to Article 32 para. 2 of the EU Charter of Fundamental Rights, the working conditions for young people who are admitted to work must be adapted to their age. Adolescents must be protected against economic exploitation and any work likely to adversely affect their safety, health, physical, mental, moral or social development. Article 32 para. 2 of the EU Charter of Fundamental Rights thus establishes a far-reaching protection of working minors within the EU legal order.124

Article 33 [Protection from Narcotic Drugs] States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. States Parties’ Positive Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Embedding of Article 33 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 6

I. Generalities 1

Protection against narcotic drugs and psychotropic substances pursuant to Article 33 CRC is to be seen not only in the context of Articles 32 to 36 CRC but also in the context of Article 24 CRC which guarantees the child the enjoyment of the highest attainable standard of health. For instance, drug consumption of children and adolescents is linked

119 ECtHR, Judgment of 26 July 2005, No. 73316/01, paras 143 et seq. – Siliadin v. France. In a similar vein, see also ECtHR, Judgment of 7 January 2010, No. 25965/04, paras 277 et seq. – Rantsev v. Cyprus and Russia; Judgment of 11 October 2012, No. 67724/09, paras 88 et seq. – C.N. and V. v. France. 120 See A Behnsen, in: U Karpenstein/F Mayer (eds.), EMRK, Kommentar, 2 nd edn. 2015, Article 4 mns. 4, 12 et seq. 121 A-M Böhringer, Schutz des Kindes und Jugendlicher, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2nd edn. 2020, § 45 mns. 13, 19. 122 See A Nußberger, in: P Tettinger/K Stern (eds.), Kölner Gemeinschaftskommentar zur Europäischen Grundrechte-Charta, 2006, Article 32 mn. 31. 123 For more detail T Marauhn, in: S Heselhaus/C Nowak (eds.), Handbuch der Europäischen Grundrechte, 2006, § 41 mns. 9, 19; B Rudolf, in: J Meyer (ed.), Charta der Grundrechte der EU, Kommentar, 5 th edn. 2019, Article 32 mn. 13. 124 S Krebber, in: C Calliess/M Ruffert (eds.), EUV/AEUV, Kommentar, 5 th edn. 2016, Article 32 GRCh mns. 2, 3.

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in two ways to the transmission of HIV/AIDS.1 On the one hand, the improper use of syringes can lead to infections; and on the other hand, the use of narcotic drugs can reduce the ability of adolescents to exercise control over their sexual behaviour. 2 Of course, the misuse of narcotic drugs does not only affect children. However, children require special protection in this area, since they are rather victims than perpetrators. Their relative immaturity leaves them vulnerable not only to use proscribed substances but also to exploitation by those involved in the production and trafficking of such substances. All in all, Article 33 CRC aims at protecting children, and not their punishment.3

II. States Parties’ Positive Obligations Article 33 CRC requires States Parties to take all appropriate measures to protect chil- 2 dren from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties. The relevant treaties defining the drugs and substances covered by Article 33 CRC are the 1961 Single Convention on Narcotic Drugs and its 1972 Additional Protocol,4 as well as the 1971 Convention on Psychotropic Substances.5 However, the list of relevant international instruments under Article 33 CRC is not confined to these two treaties.6 It extends to other treaties which were not discussed during the drafting of the Convention, such as the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,7 and the 2003 WHO Framework Convention on Tobacco Control, together with its 2012 Protocol to Eliminate Illicit Trade in Tobacco Products.8 The substances which are under international control are listed in the schedules annexed to these instruments. They contain, inter alia, the control of cannabis, opium poppy, coca and their many derivatives as well as synthetic substances such as methadone and ecstasy.9 Against this background, Article 33 CRC applies only to parts of drugs and psy- 3 chotropic substances relevant to children, namely only to those whose abuse is also combated internationally with respect to adults. For example, tobacco products are covered only partially by Article 33 CRC, since the WHO Framework Convention on Tobacco Control only proscribes the sale (and not the use) of tobacco products to children.10 Alcohol, one of the most commonly used substances by adolescents,11 remains outside the scope of Article 33 CRC, since it is not subject to control or limitation under any

CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, para. 64. CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 39. 3 See D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1274. 4 520 UNTS 204; 976 UNTS 3. 5 1019 UNTS 175. 6 D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1277. 7 1582 UNTS 95. 8 2302 UNTS 166. The 2012 Protocol is not in force yet. 9 For a fuller account see D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1278-1280. 10 D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1280. Different assessment by G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 224. 11 See WHO, Global Status Report on Alcohol and Health, 2014, p. 36 et seq., indicating that heavy episodic drinking is particularly prevalent among young people aged 15-19 years. 1

2

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Art. 33

[Protection from Narcotic Drugs]

relevant international instrument.12 However, in relation to Article 19 and Article 24 CRC, the CRC Committee has clarified that States Parties should also take measures to protect young people from the use of substances which are available to adults with or without legal restrictions, but which are particularly harmful to the health of children, such as alcohol or tobacco.13 Accordingly, the CRC Committee expresses its concern about the spread of drugs, alcohol, and tobacco products among children, as well as the high rate of malformed children born to mothers who abused alcohol during pregnancy. Corresponding awareness-raising campaigns should provide more information to this topic.14 Since Article 33 CRC prohibits explicitly only the “illicit use”, the use of drugs for medical purposes remains unaffected by the article.15 The CRC Committee is clear in stating that States Parties are obliged to provide children with access to essential medicines for the purposes of ensuring their right to health under Article 24 CRC. 16 4 Article 33 CRC entails positive obligations upon the States Parties to commit to the adoption of appropriate legislative, administrative, social and educational measures. States Parties must not only protect children from the illicit use of narcotic drugs and psychotropic substances but also take measures to prevent the use of children in the production, trade and trafficking of the proscribed substances, thereby complementing Article 32 CRC.17 As regards the first obligation, the CRC Committee recommends that States Parties collect data and undertake research on drug use among children. 18 It encourages the adoption of national drug plans and strategies that are preventive and remedial but not of a repressive nature.19 The CRC Committee further requires States Parties to provide assistance programmes for children and young persons who use drugs. In particular, children living in street situations have disproportionately high rates of substance abuse.20 Affected children should receive advice and protection and, among other things, hotlines should be made available which children and young people can contact anonymously.21 The CRC Committee urges the States Parties to focus primarily on preventive and alternative methods of combating drugs and less on criminal prosecution or other punitive drug control policies in relation to adolescents.22 The CRC Committee raises particular concerns about certain forms of drug treatment, including

12 D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1277. 13 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 45, para. 157; General Comment No. 20, CRC/C/GC/20, 2016, para. 64; No. 15, CRC/C/GC/15, 2013, paras 65 et seq.; Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 53; Malta, CRC/C/MLT/CO/2, 2013, para. 51; Cyprus, CRC/C/CYP/CO/3-4, 2012, para. 40. 14 See CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 42 et seq.; Hungary, CRC/C/HUN/CO/6, 2020, para. 33. See also → Article 24 mn. 23. 15 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 283. 16 CRC Committee, Concluding Observations: Denmark, CRC/C/DNK/CO/4, 2011, para. 52; Japan, CRC/C/JPN/CO/3, 2010, para. 60; Belgium, CRC/C/BEL/CO/3-4, 2010, paras 58 et seq. 17 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 33.02 and 33.08. 18 See, e.g., CRC Committee, Concluding Observations: Italy, CRC/C/ITA/CO/3-4, 2011, para. 54; Sweden, CRC/C/SWE/CO/4, 2009, para. 49; Guinea, CRC/C/GIN/CO/2, 2013, para. 68; Rwanda, CRC/C/RWA/CO/5-6, 2020, para. 36. 19 CRC Committee, Concluding Observations: Chile, CRC/C/15/Add.173, 2002, para. 42. But see also the problematic acceptance of the Russian drugs strategy by the CRC Committee, although its repressive nature is apparent: CRC Committee, Concluding Observations: Russian Federation, CRC/CO/RUS/4-5, 2013, para. 5 c. 20 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 53. 21 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 44, para. 156. 22 CRC Committee, General Committee No. 20, CRC/C/GC/20, 2016, para. 64. See also CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017, para. 53.

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arbitrary detention and abuse of children in drug detention centres.23 Furthermore, the CRC Committee recommends that awareness-raising campaigns are to be carried out in the media, in educational institutions, and in family and community settings.24 States Parties should ensure that the information on drugs is accurate and objective and not exaggerated or alarming and fear-generating, since the latter only serves to reduce trust between children and adults and may even encourage risky behaviour.25 In this context, the CRC Committee also calls for the involvement of children and the civil society in the formulation of action plans and awareness-raising campaigns targeting illicit drug use among young people.26 In the second line, Article 33 CRC requires States Parties to take appropriate mea- 5 sures to prevent children’s involvement in the production and trafficking of the proscribed substances. The article is not only complemented by the general umbrella clause of Article 36 CRC27 but also by Article 3 lit. c of the ILO Convention No. 182 on the Worst Forms of Child Labour which identifies the use, procuring or offering of a child for illicit activities in particular for the production and trafficking of drugs as one of the worst forms of child labour.28 The CRC Committee has often expressed alarm over the high number of children used in the production and trafficking of drugs. 29 It has advised States Parties to take all appropriate measures to prevent and eradicate such activities, but has not commented on how States might do so.30 It only recommends that the States Parties conduct a study on the issue in order to assess its scope and causes.31 This deficit in the recommendations of the CRC Committee adversely affects the effective implementation of Article 33 CRC as a whole.

III. Embedding of Article 33 CRC into the System of International Human Rights Protection The protection of children from narcotic drugs and psychotropic substances as en- 6 shrined in Article 33 CRC cannot be found in any other universal human rights treaties. Only Article 28 ACRWC closely reflects Article 33 CRC. The 1961 Single Convention on Narcotic Drugs, its Revised Protocol of 1972, and the 1971 Convention on Psychotropic 23 CRC Committee, Concluding Observations: Cambodia, CRC/C/KHM/CO/2, 2011, paras 55 et seq.; Viet Nam, CRC/C/VNM/CO/3-4, 2012, paras 43 et seq. 24 See CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/2, 2013, para. 52; Thailand, CRC/C/THA/CO/3-4, 2012, para. 65; Liberia, CRC/C/LBR/CO/2-4, 2012, para. 67; Iceland, CRC/C/ISL/CO/3-4, 2012, para. 45; Kazakhstan, CRC/C/KAZ/CO/3, 2007, para. 52; Poland, CRC/C/15/ Add.194, 2002, para. 43; Togo, CRC/C/15/Add.83, 1997, para. 52. 25 See CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 64; Bulgaria, CRC/C/BGR/CO/2, 2008, para. 50; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 50. Further see D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1301-1302. 26 CRC Committee, Concluding Observations: Mexico, CRC/C/MEX/CO/3, 2006, para. 67; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 61; Greece, CRC/C/15/Add.170, 2002, para. 75 b. 27 See → Article 36 mn. 1. 28 See D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1302. See also → Article 32 mn. 12. 29 See, e.g., CRC Committee, Concluding Observations: Colombia, CRC/C/COL/CO/3, 2006, para. 88; Djibouti, CRC/C/15/Add.131, 2000, para. 55; Antigua and Barbuda, CRC/C/15/Add.247, 2004, para. 62. 30 See, e.g., CRC Committee, Concluding Observations: Colombia, CRC/C/COL/CO/3, 2006, paras 82 et seq. Critical assessment by D Barrett/J Tobin, Article 33, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1273, at 1304. 31 See CRC Committee, Concluding Observations: Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 90; Belarus, CRC/C/15/Add.180, 2002, para. 51; Maldives, CRC/C/MDV/CO/3, 2007, para. 89.

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Art. 34

[Protection from Sexual Abuse]

Substances32 regulate drug abuse only in a general form. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does not contain any protective provisions for children. The UN General Assembly Resolution 43/121, of 8 December 1988, deals specifically with the use of children in drug trafficking and the drug withdrawal of juvenile drug addicts; however, the Resolution is not a legally binding document. 7 There are also no agreements on the protection of children against drugs and psychotropic substances at the European level. There is only a Drugs Action Plan that the EU has adopted for the years 2017-202033 and a corresponding EU Drugs Strategy outlined for the years 2013-2020.34 Both deal with the fight against drug trafficking and abuse of drugs without having child-specific rules.

Article 34 [Protection from Sexual Abuse] States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Material and Personal Scope of Article 34 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. States Parties’ Positive Obligations to Protect and Ensure . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 34 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 6 16

I. Generalities 1

Sexual abuse of a child is one of the most serious crimes. Technological advances and globalisation have increased the opportunities for these criminal practices, which know no boundaries and can occur anywhere and by anyone.1 The effects of such abuse on the physical health and the mental and psychological well-being of children are profound.2 Article 34 CRC seeks to confront this complex reality by obliging States Parties to protect the child from all forms of sexual exploitation and sexual abuse. Article 34 CRC is closely connected with Article 19 CRC, which protects children from all forms of violence, including from sexual abuse.3 However, Article 19 CRC concerns only abuse in the family or by the guardian of the child and is lex specialis in that regard, whereas Article 34 CRC is broad and prohibits sexual exploitation by private third parties in general and irrespective of whether the affected children are in the care of their parents As to these treaties see → Article 33 mn. 2. OJ EU 2017, No. C 215, p. 21. 34 OJ EU 2012, No. C 401, p. 1. 1 See Human Rights Council, Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, A/HRC/28/56, 2014, paras 8-12. 2 J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1311, with further references. 3 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 3, 25. 32

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or not.4 Article 34 CRC also overlaps with the protection against exploitative child labour (Article 32 CRC) and the prohibition against trafficking in children (Article 35 CRC). However, Article 34 CRC focuses sexual exploitation and sexual abuse and is designed to confront particularly those harms on children. Furthermore, Article 34 CRC recognises that national measures alone will be insufficient to protect children from such harmful experiences and demands that States Parties undertake bilateral and multilateral actions to combat sexual abuse of children.

II. Material and Personal Scope of Article 34 CRC The material scope of Article 34 CRC extends to all forms and practices of sexu- 2 al abuse and sexual exploitation of children. The terms “sexual abuse” and “sexual exploitation” are not defined in the Convention, and there was no discussion about their meaning during the drafting process.5 Although the CRC Committee has stated expressly that operational legal definitions are required for the various forms of sexual violence against children6 and has further listed a range of practices that it considers to fall under Article 34 CRC,7 it has not yet offered any specific guidance with respect to both terms.8 However, there is agreement that “sexual abuse” of a child refers to the involvement of a child in a sexual activity without his or her consent or where he or she does not comprehend fully the nature of the activity and is unable to provide genuine consent. Sexual abuse includes both physical and non-physical abuse such as sexual harassment.9 In any case, sexual abuse of children aims at satisfying sexual needs of others, whether adults or children, at the expense of their emotional and physical well-being.10 The term “sexual exploitation” also implies a form of sexual abuse, but it is additionally associated with a direct or indirect economic or commercial profit of another person.11 At least, the CRC Committee places a great emphasis on commercial sexual exploitation when evaluating the States Parties’ periodic reports.12 The CRC Committee also expresses its deep concern at the incidence of child sex tourism (or more precisely: sexual exploitation of children in travel and tourism) as a specific form of sexual exploitation and recommends the adoption or strengthening of legislative measures to combat it.13 Furthermore, the Internet increases the opportunities to groom children 4 V Muntarbhorn, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 34, 2007, Article 34 mn. 4. See also → Article 19 mn. 2. 5 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 71 et seq. Further see G Van Bueren, Child Sexual Abuse and Exploitation: A Suggested Human Rights Approach, International Journal of Children’s Rights 2 (1994), p. 45, at 46. 6 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 18. 7 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 25. 8 Critical assessment by J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1316, 1318 et seq. 9 See S Greijer/J Doek, Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse, adopted by the Inter-Agency Working Group on Sexual Exploitation of Children, Luxemburg 2016, p. 19. 10 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 275. 11 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 70 et seq. See also V Muntarbhorn, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 34, 2007, Article 34 mn. 2, 41. 12 See, e.g., CRC Committee, Concluding Observations: Mauritius, CRC/C/MUS/CO/3-5, 2015, para. 41; Uruguay, CRC/C/URY/CO/3-5, 2015, para. 33; Tanzania, CRC/C/TZA/CO/3-5, 2015, para. 40; Sweden, CRC/C/SWE/CO/5, 2015, para. 29. 13 See CRC Committee, Concluding Observations: Morocco, CRC/C/MAR/CO/3-4, 2014, paras 40 et seq.; Dominican Republic, CRC/C/15/Add.150, 2001, paras 47 et seq.; Togo, CRC/C/TGO/CO/3-4,

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for sexual purposes. Children and young people are increasingly using information and communication technologies to communicate and establish relationships that may, in some cases, bring them into contact with sexual offenders. Therefore, Article 34 CRC covers sexual abuse and exploitation both offline and online and is also partly connected to Article 17 CRC.14 3 Article 34 lit. a to lit. c CRC concerns specific forms of sexual abuse that States Parties are required to prevent. The “inducement or coercion of a child to engage in an unlawful sexual activity” is designed to protect children from measures that would deceive, compel or force a child to engage a child in a sexual activity in the absence of genuine consent. Importantly, the inclusion of the term “unlawful” in Article 34 lit. a and lit. b CRC is not intended to regulate sexual life among juveniles, but only to protect them from abuse.15 Depending on the applicable national legal order, minors of a certain age can validly consent to sexual activities. For example, Article 34 CRC does not prohibit the mutual sexual intercourse between minor spouses or between adolescents in a consensual romantic and/or sexual relationship. With respect to the appropriate age at which children can consent to their engagement in lawful sexual activities, the CRC Committee has not sought to specify a universal age. However, it has expressed the view that 12 years is too low, and 14 years may also be problematic.16 Ultimately, whatever age is adopted, the State Party must ensure adequate protection for all children under the age of 18 against sexual exploitation and abuse. 17 Beyond that, in view of the fact that Article 34 CRC expressly prohibits only sexual abuse and exploitation, the element of unlawfulness is misleading and superfluous. There are simply no legitimate forms of abuse and exploitation.18 4 In practice, the sexual contact between a child and an adult is often mediated by a private third party, who is the recipient of the resulting economic capital, such as in cases of forced prostitution and forced pornographic performances. Such forms of abuse shall be combated by the States Parties under Article 34 lit. b and lit. c CRC in the same way as the direct inducement or coercion of a child to engage in unlawfully sexual activity under Article 34 lit. a CRC. Again, there is no guidance in Article 34 CRC on the definition of prostitution and pornography, and the CRC Committee has not yet attempted to define the terms. However, the Second Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography (OPSC) adds a number of definitions which specify the content and strengthen the obligations of Article 34 CRC for the States Parties to the Optional Protocol.19 Yet, whereas Article 1 OPSC imposes an abso2012, paras 69 et seq.; Seychelles, CRC/C/SYC/CO/2-4, 2012, paras 63 et seq.; Lao People’s Democratic Republic, CRC/C/LAO/CO/3-6, 2018, para. 45; Cabo Verde, CRC/C/CPV/CO/2, 2019, paras 45-46. 14 See E Lievens/S Livingstone/S McLaughin/B O’Neill/V Verdoodt, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 487, at 501. See also → Article 17 mn. 14. 15 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 85-89. Further see V Muntarbhorn, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 34, 2007, Article 34 mn. 41. 16 See CRC Committee, Concluding Observations: Indonesia, CRC/C/15/Add.223, 2004, para. 83; Iceland, CRC/C/15/Add.203, 2003, para. 39; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 36; Republic of Korea, CRC/C/KOR/CO/5-6, 2019, para. 28 b. 17 See J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1321. See also S Greijer/J Doek, Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse, adopted by the Inter-Agency Working Group on Sexual Exploitation of Children, Luxemburg 2016, p. 7-8. 18 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 277. 19 See, for example, Article 2 OPSC which defines the terms “sale of children”, “child prostitution” and “child pornography” for the purpose of the Protocol. For more detail see J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1728 et seq.

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lute prohibition on all forms of the sale of children, child prostitution and child pornography, and Article 3 OPSC further obliges the States Parties in an unqualified form to ensure criminalisation of these practices, Article 34 lit. b and lit. c CRC are only concerned with the exploitative use of children in prostitution and pornography. Consequently, there is obviously a tension between the protectionist or welfarist approach reflected in OPSC which rigorously outlaws all actions implying the use of children in prostitution and pornography on the one hand,20 and the rights-based approach of Article 34 CRC which is only concerned with protecting children from their exploitative use in prostitution and pornographic performances and materials.21 The last approach contemplates, at least in theory, that a young person could engage in non-exploitative prostitution and non-exploitative pornography if he or she gave his or her informed consent.22 However, in most, if not all cases, the consent of the child, when at all present, is due to threats, tricks, inducement or financial constraints.23 This suggests that ultimately there are no significant differences in interpretation between Article 34 CRC and OPSC. Whether the child has consented to these various forms of exploitation in the sense of Article 34 CRC is usually insignificant.24 The personal scope of Article 34 CRC extends to all children who have not yet 5 reached the age of 18 years. Although the States Parties may, according to Article 1 CRC, decide that the child is of legal age of majority before the age of 18 years,25 the CRC Committee has made it clear with regard to Article 34 CRC that all children under the age of 18 years are to be protected against sexual exploitation and sexual abuse. 26 This does not hinder, though, any interpretation according to which, for instance, consensual “sexting” may be a normal intimate communication between adolescents within romantic and sexual relationships.27 Both the drafting history of Article 34 CRC 28 and the ordinary meaning of this provision suggest that not all sexually explicit material involving a child under the age of 18 years is inevitably exploitative.29

20 See J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1786. 21 J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1314, 1324. See also Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, para. 88. 22 J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1323. 23 See G Van Bueren, Child Sexual Abuse and Exploitation: A Suggested Human Rights Approach, International Journal of Children’s Rights 2 (1994), p. 45, at 55 et seq. See also S Greijer/J Doek, Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse, adopted by the Inter-Agency Working Group on Sexual Exploitation of Children, Luxemburg 2016, p. 32. 24 V Muntarbhorn, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 34, 2007, Article 34 mn. 27, 58. Concurring view by J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1324-1325. 25 See → Article 1 mn. 3. 26 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 45, para. 159. See also CRC Committee, Concluding Observations: Spain, CRC/C/15/Add.185, 2002, para. 50 a. 27 J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1328. 28 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, para. 88. 29 See S Greijer/J Doek, Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse, adopted by the Inter-Agency Working Group on Sexual Exploitation of Children, Luxemburg 2016, p. 55; J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1328.

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III. States Parties’ Positive Obligations to Protect and Ensure According to Article 34 CRC, the States Parties have a positive obligation to protect children from sexual exploitation and sexual abuse, with particular regard to prostitution and pornography. In view of this, all appropriate domestic, bilateral and multilateral preventive measures shall be taken. States Parties enjoy a level of discretion with respect to the measures they adopt within their jurisdiction provided that they are effective and consistent with the other provisions of the Convention.30 The CRC Committee explains that States Parties must make all reasonable efforts in light of their available resources to protect children from sexual abuse and exploitation.31 Failure to do so carries the burden of justifying why they have been unable to protect a child.32 In particular, resource constraints cannot provide justification for a State Party’s failure to take any of the measures that are required for child protection.33 7 On the one hand, the protection of the child from all forms of sexual exploitation may take the form of the adoption or extension of criminal laws, whereby the States are also obliged to apply the principle of extraterritoriality in the area of sexual offences in order to effectively fight any forms of child sex tourism.34 In this context, the CRC Committee regularly stresses that legislation must be gender neutral in order to provide protection for girls and boys alike.35 States Parties must also ensure that the affected children are not criminalised, since they are victims and not perpetrators.36 In order to enact effective laws, the CRC Committee recommends that States Parties first carry out studies to determine the nature, scope and causes of sexual exploitation of children within their jurisdiction. 37 The results from such studies should inform the development of criminal laws, national plans and policies to address the incidence of such activities.38 In developing such policies, States Parties must provide sufficient resources. 39 Moreover, the CRC Committee stresses the need to pursue vigorously the enforcement of criminal law and hold the perpetrators of sexual abuse on children accountable for their actions.40 On the other hand, there is a need for a special training of the responsible 6

30 See CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 59 et seq. See also J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1315, 1333. 31 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 37. See also CRC Committee, Concluding Observations: Cabo Verde, CRC/C/CPV/CO/2, 2019, para. 46. 32 J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1315. 33 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 73. 34 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 51; see also CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 46, para. 159. 35 CRC Committee, Concluding Observations: Grenada, CRC/C/GRD/CO/2, 2010, para. 33; Jordan, CRC/C/JOR/CO/4-5, 2014, para. 32; Tuvalu, CRC/C/TUV/CO/1, 2013, para. 40; Tunisia, CRC/C/TUN/CO/3, 2010, para. 62; Belarus, CRC/C/BLR/CO/5-6, 2020, para. 22. 36 See CRC Committee, Concluding Observations: Myanmar, CRC/C/MMR/CO/3-4, 2012, paras 89 et seq.; Peru, CRC/C/PER/CO/3, 2006, para. 68; Chad, CRC/C/TCD/CO/2, 2009, para. 82. 37 CRC Committee, Concluding Observations: Samoa, CRC/C/WSM/CO/1, 2006, para. 57; France, CRC/C/FRA/CO/4, 2009, para. 93; Malta, CRC/C/MLT/CO/2, 2013, para. 41; Sweden, CRC/C/SWE/CO/5, 2015, para. 30; Luxembourg, CRC/C/LUX/CO/3-4, 2013, para. 47. 38 See, e.g., CRC Committee, Concluding Observations: Belgium, CRC/C/BEL/CO/3-4, 2010, para. 80; Oman, CRC/C/OMN/CO/2, 2006, para. 66; Guyana, CRC/C/GUY/CO/2-4, 2013, para. 37; Guinea-Bissau, CRC/C/GNB/CO/2-4, 2013, para. 38. 39 See CRC Committee, Concluding Observations: Gambia, CRC/C/GMB/CO/2-3, 2015, para. 43; Panama, CRC/C/PAN/CO/3-4, 2011, para. 69. See also CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 74. 40 See CRC Committee, Concluding Observations: Jamaica, CRC/C/JAM/CO/3-4, 2015, para. 35; Uruguay, CRC/C/URY/CO/3-5, 2015, para. 34; Slovakia, CRC/C/15/Add.140, 2000, para. 50; Tajikistan,

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judicial and police authorities to enable them to respond adequately, in a child-sensitive and gender-sensitive manner, to child victims of sexual abuse and exploitation.41 The support of internationally active NGOs in this field may also represent one of the most appropriate governmental protection measures. For instance, the NGO “ECPAT International” is particularly active against the sexual exploitation of children. It promotes global networking and cooperation against the sexual exploitation of children, publishes studies on child prostitution, child pornography and child trafficking, and supports child protection projects and initiatives in countries with limited financial resources.42 The CRC Committee further notes the need for increased prevention and education 8 on sexual and other sexual abuse in schools and in church, as well as in sport and cultural facilities for children, and calls for the development of specialised counselling bodies.43 Independent agencies and bodies to prevent and detect cases of sexual abuse in church and academic institutions should become permanent institutions.44 The positive obligation of the Contracting Parties for the prosecution, criminal punishment and prevention of sexual abuse against children demanded by Article 34 CRC also applies to the Holy See, which has ratified the Convention as a subject of international law.45 Fundamentally, the CRC Committee calls on States Parties to undertake grass roots awareness campaigns and sensitise the general public and in particular all those dealing with children to the problems of sexually abused children through education and media campaigns.46 Finally, the CRC Committee recognises the need to establish educational strategies to empower children to identify and resist the threat of sexual abuse, both offline and online.47 The obligations of the States Parties regarding the protection of the child from sale, 9 prostitution and pornography as laid down in Article 34 lit. b and lit. c CRC are supplemented by the Second Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography (OPSC) of 25 May 2000.48 The adoption of the Protocol was a reaction to the global spread and persistence of child sex tourism and the increasing trans-border spread of child pornography.49 Article 2 OPSC introduces a set of definitions which specify Article 34 CRC.50 In addition, Articles 3 to 6 OPSC oblige the States Parties to introduce criminal sanctions and to prosecute all criminal acts comCRC/C/15/Add.136, 2000, para. 51; Ethiopia, CRC/C/15/Add.144, 2001, para. 73; Greece, CRC/C/15/ Add.170, 2002, para. 77. 41 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, p. 46, para. 159; Concluding Observations: Jamaica, CRC/C/JAM/CO/3-4, 2015, para. 35; Mauritius, CRC/C/MUS/CO/3-5, 2015, para. 42; Colombia, CRC/C/COL/CO/4-5, 2015, para. 30. 42 See M Maurer, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 177, at 179 et seq. 43 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 35. 44 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 4, 35 e. 45 See CRC Committee, Concluding Observations: Holy See, CRC/C/VAT/CO/2, 2014, paras 43 et seq. 46 See CRC Committee, Concluding Observations: Ethiopia, CRC/C/15/Add.144, 2001, para. 73; Czech Republic, CRC/C/15/Add.201, 2003, para. 62; Colombia, CRC/C/COL/CO/4-5, 2015, para. 30; Belgium, CRC/C/15/Add.178, 2002, para. 30; Lao People’s Democratic Republic, CRC/C/LAO/CO/3-6, 2018, para. 45. 47 CRC Committee, Day of General Discussion on the child and the media, CRC/C/15/Add.65, 2014, paras 66 et seq. See also → Article 17 mn. 22. 48 For a fuller account on the subject of the Second Optional Protocol see T Marauhn, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 143 et seq.; J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1726 et seq. 49 See Commission on Human Rights, E/CN.4/RES/1994/90, 1994, para. 17. 50 See → Article 34 mn. 2.

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mitted domestically, extraterritorially or transnationally, especially in view of the increasing globalisation of the offences.51 States Parties are required to criminalise and effectively prosecute all acts of trafficking and commercial sexual exploitation of children whether such offences are committed domestically or transnationally or on an individual or an organised basis.52 With the latest guidelines regarding the implementation of the OPSC, dated 10 September 2019, the CRC Committee endeavours to adapt children’s rights to today’s digital challenges. The States Parties should seek alliances with information technology companies so that these companies can develop technology-based solutions to prevent sex tourism directed against children. One thought is about blocking payment transactions.53 10 However, Article 3 OPSC does not cover all criminal offences relevant to the sale of children, child prostitution and child pornography. The elements covered by Article 3 para. 1 lit. a OPSC include the offering, delivering or acceptance of a child for the purpose of sexual exploitation, transfer of organs of the child for profit, or the child’s engagement in forced labour. However, in the case of illegal adoptions carried out for these purposes, only the actions of the intermediary person are punishable under Article 3 para. 1 lit. a (ii) OPSC. This in turn means that even under the Optional Protocol adoptive parents who exploit the child or act for other illegal purposes go unpunished.54 The same applies to the “beneficiaries” of the sexual exploitation of the child, for instance the “users” of a child prostitute or of child pornography; they are also exempted from the mandatory criminalisation under Article 3 para. 1 lit. a OPSC. The restrictive wording of the norm is highly unfortunate, as it is commonly known that demand creates supply.55 Therefore, the CRC Committee stresses that also the possession of child pornography should be criminalised in any event.56 On the other hand, the Optional Protocol contains numerous accompanying regulations addressing the protection of victims as well as requiring various preventive and assistance measures (see, e.g., Articles 8 and 9 OPSC). States Parties shall promote awareness-raising among the general public, including children, through information by all appropriate means, about the preventive measures and harmful effects of the offences referred to in Article 3 OPSC. 57 The CRC Committee also recommends that States Parties address the root causes of the practices prohibited under OPSC, such as cultural stereotypes which contribute to the abuse and exploitation of children.58 The provision of information and the opportunity for children (both offline 51 J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1740 et seq. 52 See J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 230. 53 See CRC Committee, Guidelines regarding the implementation of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, CRC/C/156, 10 September 2019. See also J Hertwig, Ausschuss für die Rechte des Kindes, 80. bis 82. Tagung, Vereinte Nationen, 2020, p. 231, at 231. 54 See C Tomuschat, Mehr Schutz für die Schutzlosen: Die beiden Fakultativprotokolle zu dem Übereinkommen über die Rechte des Kindes, Vereinte Nationen 2002, p. 89, at 92. 55 C Tomuschat, Mehr Schutz für die Schutzlosen: Die beiden Fakultativprotokolle zu dem Übereinkommen über die Rechte des Kindes, Vereinte Nationen 2002, p. 89, at 92. 56 CRC Committee, Concluding Observations: Yemen, CRC/C/OPSC/YEM/CO/1, 2009, para. 40; Austria, CRC/C/OPSC/AUT/CO/1, 2008, para. 20. 57 See Commission on Human Rights, E/CN.4/1995/95, 1995, para. 17; E/CN.4/1996/101, 1996, para. 39. For a fuller account see J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1773 et seq. 58 See CRC Committee, Concluding Observations: Australia, CRC/C/OPSC/AUS/CO/1, 2012, para. 21; Albania, CRC/C/OPSC/ALB/CO/1, 2012, para. 20; USA, CRC/C/OPSC/USA/CO/2, 2013, para. 8; Uzbekistan, CRC/C/OPSC/UZB/CO/1, 2013, para. 23.

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and online) to participate actively and meaningfully in the policy-making process in the area of the prohibition of sexual exploitation is seen as an important step to empowering children.59 Furthermore, States Parties have to provide assistance to victims and develop successful prevention programmes.60 Victim protection measures and corresponding regulations in criminal law as well as a functioning criminal justice system are important, so that the victim of abuse is not victimised within the justice process for a second time.61 The transnational cooperation of the investigative, prosecution and extradition authorities through mutual legal assistance and international cooperation, as required by Articles 6 and 10 OPSC, takes into account the increasing international nature of this type of criminality. Yet, the Optional Protocol’s central limitation is its differential treatment of the 11 criminal and the preventive and restorative pillars as well as the prongs of action it provides for. The criminal law provisions under Articles 3 to 7 OPSC are formulated in a strict and mandatory manner, while the provisions on victim assistance and prevention under Articles 8 and 9 OPSC employ a significantly weaker language.62 For instance, Article 3 para. 1 OPSC requires that each State Party shall ensure, as a minimum, that the acts forbidden by the Protocol are fully covered under its criminal law statutes. In contrast, Article 8 para. 1 OPSC merely states that States Parties shall adopt “appropriate measures” to protect the rights and interests of child victims at all stages of the criminal justice process. Article 9 para. 3 OPSC is also vaguely formulated, since it asserts that States Parties shall take all feasible measures with the aim of ensuring all appropriate assistance to victims of such offences. Both provisions give States significant latitude and leeway in determining whether their actions are sufficient to fulfil children’s rights. Also, the CRC Committee limits itself in only recommending, for instance, the use of a video link for the provision of evidence in order to avoid direct contact between the child victim and the defendant,63 or to ensure adequate training of those persons or organisations most relevant to the incidence of the practices condemned under OPSC, such as the police, judges, prosecutors, social workers, medical staff and teachers. 64 This vagueness in the formulation is regrettable since actions to prevent harm are the best way to demonstrate full recognition of the inherent dignity in every child.65 Considering Article 2 para. 1 CRC, the States Parties are, in regards to Article 34 12 CRC, also obliged to take into account the special vulnerabilities of particularly vulnerable groups of children by adopting additional recovery and reintegration measures. The serious physical and psychological impairments and consequences caused by the sexual abuse and exploitation of children, which in turn necessitate psychological and

59 See M de Boer-Buquicchio, Report of the UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, A/HRC/28/56, 2014. 60 J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 230. 61 T Marauhn, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 143, at 154. 62 See J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 230 et seq. 63 CRC Committee, Concluding Observations: Estonia, CRC/C/OPSC/EST/CO/1, 2010, para. 42; Uruguay, CRC/C/OPSC/URY/CO/1, 2015, para. 36. 64 See CRC Committee, Concluding Observations: Serbia, CRC/C/OPSC/SRB/CO/1, 2010, para 18; Ecuador, CRC/C/OPSC/ECU/CO/1, 2010, para. 15; Bosnia and Herzegovina, CRC/C/OPSC/BIH/CO/1, 2010, para. 17. 65 Rightly so, J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 231.

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medical treatment, does not require extra explanation.66 However, States Parties must also combat the risks of HIV/AIDS infection in children which becomes a threat to them through prostitution and sex tourism.67 Therefore, the CRC Committee variously underlines that victims of sexual exploitation must have access to health care and psychological assistance in a coordinated manner to ensure their effective recovery and social reintegration.68 Likewise, it must not be neglected that girls in sex tourism are exposed to the risk of pregnancy, which cannot only have enormous physical risks for the child and the mother, but also serious psychological consequences. Often, a girl who becomes pregnant because of (forced) prostitution is also a victim of exclusion and rejection in her immediate social environment and community.69 To this extent, the States Parties must also take measures to promote a change in the consciousness of society by establishing child-sensitive and gender-sensitive awareness-raising programmes. 13 Potential victims of sexual exploitation and child prostitution within the meaning of Article 34 CRC are generally all children. However, especially at risk are girls, in particular homeless female children, children in poverty, children of minorities, children from disrupted families, children in street situations, children with disabilities, and children of prostitutes and domestic workers.70 Increasingly, sexual violence against children is also used as a means of warfare in order to intimidate civil society.71 Also, sexual exploitation of children is promoted by the globalisation of the economy.72 Finally, consumer behaviour in industrialised countries is responsible for the rapid rise in sexual exploitation of children in travel and tourism. On the other hand, child sex tourism is regarded as an economic factor by some developing countries.73 In addition, the exploitation of girls in many countries is also linked to the general negative role assigned to women in society.74 The form of forcible marriages which is common in many countries is not explicitly addressed by Article 34 CRC,75 but is also included in the rationale of the norm, as 66 See, e.g., J Kippenberg, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 165, at 167 et seq. 67 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 36 et seq.; General Comment No. 4, CRC/GC/2003/4, 2003, paras 34 et seq. See also L Jones, Regulating child pornography on the Internet – the Implications of Article 34 of the United Nations Convention on the Rights of the Child, International Journal of Children’s Rights 6 (1998), p. 55, at 70; LN Robinson, The Globalization of Female Child Prostitution: A Call for Reintegration and Recovery Measures Via Article 39 of the United Nations Convention on the Rights of the Child, Indiana Journal of Global Legal Studies 5 (1997), p. 239, at 247 et seq. 68 CRC Committee, Concluding Observations: Indonesia, CRC/C/IDN/CO/3-4, 2014, para. 32; Jamaica, CRC/C/JAM/CO/3-4, 2015, para. 32; Yemen, CRC/C/YEM/CO/4, 2014, para. 82; Romania, CRC/C/15/Add.199, 2003, para. 59. See also → Article 39 mns. 1 et seq. 69 S Schmahl, in: A Zimmermann/T Giegerich (eds.), Gender und Internationales Recht, 2007, p. 171, at 183. 70 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2006, paras 42, 77; General Comment No. 21, CRC/C/GC/21, 2017, para. 58. See also CRC Concluding Observations: Viet Nam, CRC/C/VNM/CO/3-4, 2012, para. 71; Fiji, CRC/C/FJI/CO/2-4, 2014, para. 32; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 79. 71 See J Kippenberg, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 165, at 168 et seq.; S Schmahl, in: A Zimmermann/T Giegerich (eds.), Gender und Internationales Recht, 2007, p. 171, at 176. 72 V Muntarbhorn, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 34, 2007, Article 34 mn. 1. 73 See LN Robinson, The Globalization of Female Child Prostitution: A Call for Reintegration and Recovery Measures Via Article 39 of the United Nations Convention on the Rights of the Child, Indiana Journal of Global Legal Studies 5 (1997), p. 239, at 243 et seq. 74 ILO, A Future without Child Labour, General Report, Geneva 2002, p. 23. See also CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/5-6, 2020, paras 25-26. 75 Critical assessment by G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 227.

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there is often an inseparable factual link with the sexual exploitation of girls.76 States Parties must pay special attention to these factors when designing measures to combat the problem of child prostitution; the decisive component here is the multiplicity of the reasons for and the various manifestations of child prostitution. The CRC Committee therefore stresses the necessity to adopt a multi-sectoral approach in the development of appropriate measures regarding the needs of those children most vulnerable to sexual exploitation and abuse.77 In practical terms, this means that States Parties must not only engage in law enforcement but also in awareness-raising in media, medical profession, social workers, the education sector and the tourism and information technology sectors.78 Moreover, the CRC Committee remains seriously concerned that perpetrators of rape in some States Parties can be exempt from prosecution and punishment if they marry their victims or that penalties are reduced for perpetrators of crimes committed in the name of so-called “honour”.79 The CRC Committee therefore urges the States Parties to duly prosecute and punish perpetrators with sanctions commensurate with the gravity of their crimes.80 Specific measures are also needed to combat child pornography effectively. The vic- 14 tims of child pornography are boys and girls alike,81 so no special consideration of gender is required. However, it is problematic that child pornography is widely spread over the darknet, which is difficult to control. The corresponding material is easily, cheaply and ubiquitously available for everyone, at any time. Both providers and users of such material can anonymise themselves relatively easily.82 The constant availability of mobile recording equipment has further strongly promoted the production and dissemination of images of completely or partially unclothed children and adolescents, especially for sexual purposes. There is a huge virtual market for such images and movies.83 The danger of the digitisation of societies is not only a matter of images and movies, 15 but also of chat-forums and social media, where it is easy for paedophiles to make contact with unsuspecting children under a false identity and engage them in sexually connoted conversations or to even make real contact with them.84 Notwithstanding the possibilities of State intervention and technical solutions, which will always have limited effect in view of the transnational ubiquity of the Internet on the one hand and State sovereignty on the other hand,85 it is the decisive role of the parents who have to teach See UNRIC Declaration on child, early and forced marriage, of 11 October 2012. CRC Committee, Concluding Observations: Dominican Republic, CRC/C/DOM/CO/2, 2008, para. 85; Burundi, CRC/C/15/Add.133, 2000, para. 75. 78 J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1337. 79 CRC Committee, Concluding Observations: Bahrain, CRC/C/BHR/CO/4-6, 2019, para. 30; Palestine, CRC/C/PSE/CO/1, 2020, para. 40. 80 CRC Committee, Concluding Observations: Bahrain, CRC/C/BHR/CO/4-6, 2019, para. 31. 81 L Jones, Regulating Child Pornography on the Internet – The Implications of Article 34 of the United Nations Convention on the Rights of the Child, International Journal of Children’s Rights 6 (1998), p. 55, at 58 et seq. 82 For more detail see S Schmahl, in: Herausforderungen der Regulierung im Cyberspace: Systematisierungsansätze aus der Perspektive des Völkerrechts, Zeitschrift für öffentliches Recht 73 (2018), p. 3, at 6 et seq. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 34.14. 83 For more detail see R Busch, Strafrechtlicher Schutz gegen Kinderpornographie und Missbrauch, Neue Juristische Wochenschrift 2015, p. 977-981. 84 See L Jones, Regulating Child Pornography on the Internet – The Implications of Article 34 of the United Nations Convention on the Rights of the Child, International Journal of Children’s Rights 6 (1998), p. 55, at 71 et seq. See also S Schmahl, in: I Richter/L Krappmann/F Wapler (eds.), Kinderrechte. Handbuch des deutschen und internationalen Kinder- und Jugendrechts, 2020, p. 375, at 397-380. 85 See S Schmahl, Zwischenstaatliche Kompetenzabgrenzung im Cyberspace, Archiv des Völkerrechts 47 (2009), p. 284-327. 76

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their children of the dangers of the Internet continuously and, if necessary, to monitor their online activities. It is also important to explain children the dangers of the Internet in school and to educate them on a responsible approach. This aspect is also specifically addressed in Article 17 and Article 28 CRC.86 In regards to child pornography, it is doubtful whether the States are obliged to forbid computer-simulated depictions of sexual acts of children. Films or images made from real material are undeniably subject to the prohibition of Article 34 CRC. The categorisation of films or images that were produced exclusively by means of computer technology and avatars without making a real picture material is more difficult.87 As far as can be seen, computer-simulated child pornography is only explicitly criminalised and prosecuted in the context of European Union law.88

IV. Embedding of Article 34 CRC into the System of International Human Rights Protection 16

The protection against sexual abuse of children under Article 34 CRC is explicitly regulated in hardly any other universal human rights treaty. It is the CRC which was the first international instrument to address and combat children’s sexual exploitation specifically.89 However, since the adoption of the CRC there has been a heightened level of multilateral activity with respect to practices that fall within the scope of Article 34 CRC.90 One prominent example is ILO Convention No. 182 on the Worst Forms of Child Labour,91 Article 3 of which protects all children under 18 years of age, inter alia, from the sale, procurement, transferring or offering of a child for prostitution, making pornography or for pornographic performances. States Parties shall take the necessary measures, including the establishment and application of criminal sanctions. 92 Furthermore, three World Conferences have been held against sexual exploitation of children and adolescents: 1996 in Stockholm, 2001 in Yokohama, and 2008 in Rio de Janeiro. At these summits, non-binding declarations on the protection of children and adolescents against sexual exploitation were adopted. Furthermore, a UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography was appointed in 1990,93 and its mandate has been extended subsequently. Likewise, the Hu86 See H Thorgeirsdóttir, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 13, 2006, Article 13 mn. 88. 87 L Jones, Regulating Child Pornography on the Internet – The Implications of Article 34 of the United Nations Convention on the Rights of the Child, International Journal of Children’s Rights 6 (1998), p. 55, at 59 et seq., S Schmahl, Zwischenstaatliche Kompetenzabgrenzung im Cyberspace, Archiv des Völkerrechts 47 (2009), p. 284, at 323 et seq. 88 See, e.g., Article 1 lit. b (iii) of the Framework Decision 2004/68/JI, OJ EU 2004, No. L 13, p. 44, as well as Article 2 lit. c (iii, iv) of Directive 2011/93/EU, OJ EU 2011, No. L 335, p. 1. Further see FRA, Handbook on European law relating to the rights of the child, 2015, p. 130-131. 89 T Marauhn, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 143, at 154. 90 See, e.g., F Bruce, Child Prostitution and Pornography, The Making of International Law 1974-1995, International Journal of Children’s Rights 3 (1995), 469 et seq.; M Santos País, The United Nations Legislative Framework for the Protection of Children from Sexual Violence, Including Sexual Abuse and Exploitation, in: Council of Europe (ed.), Protecting Children from Sexual Violence. A Comprehensive Approach, 2011, p. 11-54. 91 2133 UNTS 161. 92 See Article 7 para. 1 of the ILO Convention No. 182. For more detail see T Marauhn, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 143, at 149 et seq. 93 See Commission on Human Rights, E/CN.4/RES/1990/68, 7 March 1990.

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man Rights Committee has become increasingly involved in the fight against the sexual exploitation of children. For instance, when deciding on a case of a 17 years old Indian Tamil girl abducted on her way home from school and raped by two Singhalese men, the Human Rights Committee considered that the lack of effective investigation and unduly prolonged prosecution of the suspects by Sri Lanka amounted to a breach of Article 7 ICCPR, read alone and in conjunction with Article 2 para. 3 ICCPR. The victimisation was even aggravated by the fact that the Indian Tamil girl was a minor when she was raped and did not receive official interpretation or translation from Tamil to Singhalese during the court proceedings.94 Finally, the adoption of the Second Optional Protocol to the CRC on the Sale of Children, Child prostitution and Child Pornography in 2000 is of paramount importance. Since it is concerned with particular forms of child’s sexual abuse only, the Protocol has not made Article 34 CRC redundant.95 At the regional level, the Council of Europe Convention on the Protection of Chil- 17 dren against Sexual Exploitation and Sexual Abuse of 25 October 2007 (so-called Lanzarote Convention)96 entered into force on 1 July 2010 after ratification by the first five States. As of May 2020, the Convention has 46 States Parties. The Lanzarote Convention has been preceded by several non-binding recommendations of the CoE Parliamentary Assembly,97 which are based on a holistic approach.98 The Lanzarote Convention contains detailed guidelines on which measures must be taken by States Parties to combat sexual exploitation and sexual abuse of children. The list of crimes to be prosecuted ranges from sexual abuse (Article 18), child prostitution (Article 19), child pornography (Article 20) to other types of “pornographic performances” (Article 21). Furthermore, the Council of Europe Convention on Cybercrime of 23 November 2001 99 in its Article 9 counteracts Internet-based child pornography.100 Finally, the Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005101 is directed against the exploitation of children, including sexual exploitation. Also, the European Union is active in the field of combatting sexual exploitation 18 and abuse of children. In that regard, not only the Framework Decision 2004/68/JI,102 but also the Directive 2011/93/EU superseding the Framework Decision 103 have played, and continue to play, a prominent role. The Directive pursues a three-part regulatory concept, which in addition to criminal provisions includes provisions for the protection of the victim and for pre-emption. In the context of the criminal provisions, the prohibitions to deliberately access child pornography (Article 5) and to make contact with children for sexual purposes (so-called “grooming”, Article 6) are particularly important as they impose criminal sanctions on actions taken even in the mere preparation of an specific criminal act.104 Furthermore, according to a relatively recent CJEU’s ruling, EU

94 Human Rights Committee, Views of 27 July 2017, Communication No. 2256/2013, paras 7.4 and 7.5 – X v. Sri Lanka. 95 J Tobin/F Seow, Article 34, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1310, at 1314. 96 CETS No. 201. 97 See, e.g., PACE Recommendation No. R(91) 11, 9 September 1991; PACE Recommendation Rec(2001)16, 31 October 2001. 98 For more detail see FRA, Handbook on European law relating to the rights of the child, 2015, p. 121. 99 ETS No. 185. 100 FRA, Handbook on European law relating to the rights of the child, 2015, p. 131. 101 CETS No. 197. 102 OJ EU 2004, No. L 13, p. 44. 103 OJ EU 2011, No. L 335, p. 1, revised by OJ EU 2012, No. L 18, p. 7. 104 For more detail see S Ziemann/J Ziethen, Die neue EU-Richtlinie zur Bekämpfung von Kindesmissbrauch und Kinderpornografie, Zeitschrift für Rechtspolitik 2012, p. 168-171. – However, the implemen-

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Member States are free to expel foreign citizens who have been convicted of the sexual abuse of a child from their territories.105 19 Moreover, certain forms of economic or sexual exploitation of children may constitute inhuman or degrading treatment within the meaning of Article 3 ECHR. On this basis, the ECtHR considers that States have a positive obligation inherent in Article 3 ECHR to enact criminal-law provisions effectively punishing rape and serious sexual assault and to apply them in practice through effective investigation and prosecution.106 Article 4 ECHR is applicable in this area, too. In particular, the forced holding of children in brothels or other settings for the purpose of sexual exploitation is to be regarded as a modern form of slavery.107 Finally, the ECtHR determined early (1985) that the protection of minors from serious sexual offences such as rape and sexual abuse of children through civil law provisions alone was not sufficient to meet the requirements of Article 8 ECHR. Effective deterrence is indispensable and can only be achieved by means of criminal law. Where fundamental values and essential aspects of private life are at stake, it falls upon the Contracting States to ensure that efficient criminal-law provisions are in place.108 Only for less serious acts between individuals, which are not connected with physical abuse, but only violate psychological integrity, such as the secret filming of a minor stepdaughter in the bathroom, civil-law remedies might be sufficient if they guarantee adequate protection.109

Article 35 [Measures against Child Trafficking] States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of Article 35 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. States Parties’ Positive Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 35 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 6 8

tation of Directive 2011/93/EU can be described as poor. Infringement proceedings have been launched against more than 10 EU Member States, see FRA, Annual Report 2016, p. 124. 105 See CJEU, Judgment of 22 May 2012, Case C‑348/09, ECLI:EU:C:2012:300, para. 28 – PI/Remscheid. 106 See, e.g., ECtHR, Judgment of 10 October 2002, No. 38719/97, paras 66-74 – D.P. u. J.C. v. The United Kingdom; Judgment of 26 November 2002, No. 33218/96, para. 89 – E. and Others v. The United Kingdom; Judgment of 4 December 2003, No. 39272/98, para. 153 – M.C. v. Bulgaria. Most recently see ECtHR Judgment of 20 February 2020, No. 41990/18, para. 80 – Y v. Bulgaria. 107 See V Muntarbhorn, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 34, 2007, Article 34 mn. 7 et seq., 20. Similarly, ECtHR, Judgment of 26 July 2005, No. 73316/01, paras 112 et seq. – Siliadin v. France; Judgment of 7 January 2010, No. 25965/04, paras 273 et seq. – Rantsev v. Cyprus and Russia; Judgment of 19 July 2018, No. 60561/14, paras 62 et seq. – S.M. v. Croatia. 108 ECtHR, Judgment of 26 March 1985, Series A No. 91, para. 27 – X and Y v. The Netherlands; Judgment of 4 December 2003, No. 39272/98, para. 15 – M.C. v. Bulgaria; Judgment of 12 November 2013, No. 5786/08, para. 82 – Söderman v. Sweden, with explicit reference to Articles 19 and 34 CRC. 109 ECtHR, Judgment of 12 November 2013, No. 5786/08, para. 85 – Söderman v. Sweden.

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I. Generalities Article 35 CRC obliges the States Parties to combat child abduction and the sale of 1 or traffic in children for any purpose or in any form. While Article 35 CRC specifically refers to “sale” and “abduction” of children, these actions are not to be understood as forms of exploitation per se, but as common means by which children are brought into trafficking-related exploitation.1 Trafficking in children through sale, abduction and other means is a widespread criminal phenomenon for a broad range of exploitative purposes, including forced labour, sexual exploitation, domestic servitude and forced marriage.2 Therefore, a substantial number of Convention guarantees interact with Article 35 CRC. Reference can be made to Articles 32 and 34 CRC which require children to be protected from economic and sexual exploitation, respectively. Article 19 CRC which compels the States Parties to protect children from all forms of violence is also relevant in the context of Article 35 CRC. The same applies to Article 39 CRC which establishes the need for recovery and reintegration for children, who are victims of any form of exploitation.

II. Scope of Article 35 CRC Article 35 CRC does not offer definitions of the terms “sale”, “abduction” and “traffic 2 in children”. Nor has the CRC Committee offered explicit or manageable definitions. However, Article 2 lit. a of the Second Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography (OPSC) defines “sale of children” as any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration. This provision supports an interpretation of “sale of children” as being primarily, but not exclusively concerned with economic exploitation.3 In contrast, “trafficking” necessarily requires an element of exploitation. Trafficking 3 in human beings has long been associated with “white slave”-trade and the cross-border sexual exploitation of women and children.4 While failing to define “trafficking in children”, it is clear from the drafting history that Article 35 CRC embraces an expanded understanding of “traffic”, beyond prostitution to include trafficking in all its forms.5 The CRC Committee identifies a wide range of exploitative practices as falling within Article 35 CRC, including sexual and labour exploitation of children.6 The CRC Committee condemns all forms of child trafficking on the domestic (internal) and the

1 A Gallagher, Article 35, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1356, at 1356. 2 See OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 717, 726. 3 See A Gallagher, Article 35, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1356, at 1363. For more detail see J Tobin, The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1712, at 1729 et seq. 4 A Schmidt, Human Trafficking – Between Punishable Human Rights Violations and Decriminalization, European Criminal Law Review 10 (2020), p. 272, at 286. 5 A Gallagher, Article 35, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1356, at 1364. 6 CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/2, 2013, para. 61; Albania, CRC/C/ALB/CO/2-4, 2012, para. 82; Afghanistan, CRC/C/AFG/CO/1, 2011, para. 72; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 95.

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international level.7 However, at the same time, it affirms that the sale of children might be different from trafficking.8 For instance, the sale of a child for non-exploitative adoption does not satisfy the requirements of trafficking under Article 35 CRC. 9 The requirement of exploitation for “traffic” is in line with the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,10 which appropriately qualifies child trafficking as a slavery-like practice.11 Child trafficking is also able to be subsumed under the term “servitude” (i.e. serfdom and debt bondage) under Article 8 para. 2 ICCPR, insofar as it does not fulfil the narrow criteria of slavery under Article 8 para. 1 ICCPR.12 The fact that Article 35 CRC avoids the use of the term “slavery” and instead uses the more harmless-sounding term “child trafficking” does not mean that child trafficking cannot be considered as slavery-like exploitation. The use of the euphemistic concept of “child trafficking” in Article 35 CRC is probably due to the hope of combating the phenomenon behind it more effectively.13 4 Child abduction and child trafficking in the sense of Article 35 CRC are both to be distinguished from Article 11 CRC, which relates to the familial kidnapping of children for the purpose of establishing personal, exclusive access to the child for the abducting parent.14 In contrast, Article 35 CRC covers the kidnapping of children solely for economic, lucrative and exploitative purposes, which is usually carried out by a third party. Also included within the scope of Article 35 CRC are, however, situations in which parents trade their own children for receiving profit. Exceptions are only possible if parents give up their children with the best intentions because they cannot care for them.15 While the drafting history is ambiguous on whether Article 35 CRC also includes familial abductions with an international dimension, it is reasonable to assume that Article 35 CRC extends only to those abductions not falling within the specific ambit of familial abductions under Article 11 CRC.16 5 Article 35 CRC is also connected with Article 21 CRC, since child trafficking is, in practice, often undertaken for inter-country adoption.17 In this respect, the rules set forth in both Article 21 CRC and the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Adoption Convention)18 are particularly important. They require States Parties to take measures to ensure that

7 See CRC Committee, Concluding Observations: Liberia, CRC/C/LBR/CO/2-4, 2012, para. 83; Namibia, CRC/C/NAM/CO/2-3, 2012, para. 72; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 78. 8 See CRC Committee, Report of 16 July 2008, A/63/41, para. 18; Concluding Observations: Syria, CRC/C/SYR/CO/3-4, 2012, para. 82. 9 A Gallagher, Article 35, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1356, at 1365. 10 See ECOSOC Resolution 608 (XXI), of 30 April 1956; entered into force on 30 April 1957. 11 See H Tretter, in: D Steurer/H Tretter/M Nowak (eds.), Festschrift für Felix Ermacora, 1988, p. 527, at 537. 12 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2005, Article 8 mns. 12-13; F Humbert, The Challenge of Child Labour in International Law, 2009, p. 56. 13 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 167 et seq. 14 See → Article 11 mn. 4. 15 C Tomuschat, Mehr Schutz für die Schutzlosen: Die beiden Fakultativprotokolle zu dem Übereinkommen über die Rechte des Kindes, Vereinte Nationen 2002, p. 89, at 91. 16 Similarly, A Gallagher, Article 35, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1356, at 1362. Different view by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 35.01 and 35.04. 17 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 281; H-J Albrecht, in: T Marauhn, (ed.), Internationaler Kinderschutz, 2005, p. 97, at 109. 18 32 ILM 1139.

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inter-country adoptive placements do not result in improper financial gain.19 Furthermore, Article 35 CRC is strongly linked with Article 22 CRC, since unaccompanied and separated children are particularly at risk of trafficking, sexual exploitation and other forms of violence.20 Children who are accompanied by their parents are generally regarded as being protected from such risks, and it is assumed that parents will guide the family into the appropriate safe channels.21 A key preventive measure of protecting unaccompanied or separated children is the identification of these children at ports of entry.22

III. States Parties’ Positive Obligations Article 35 CRC requires States Parties to take all appropriate national, bilateral and 6 multilateral measures to prevent the abduction of, the sale of or the traffic in children. Although the norm gives States Parties an appreciable margin of discretion, the appropriate measures taken must be effective and in accordance with the other provisions of the CRC, in particular with the concept of the best interests of the child (Article 3 CRC). The positive obligations of the States Parties referred to in Article 35 CRC include legislative measures (in particular the adoption of criminal laws) and other measures to be taken against the perpetrators of trafficking of children in conformity with international law,23 as well as administrative and other policy measures, such as national action plans, which effectively combat national and international crimes in the area of child trafficking and ensure the effective protection of the child victim. 24 In that regard, the CRC Committee recommends that States Parties ensure that victims of transnational child trafficking are not repatriated, except whether it is in their best interests, and that criminal justice sector officials are trained on how to carry out their duties in a child- and gender-sensitive manner.25 The CRC Committee also routinely calls on States Parties to provide child victims of trafficking, sale and abduction with child-sensitive support and protection measures to assist them with their recovery, including legal aid, medical and psychological assistance, adequate and effective access to remedies, safe and preferably voluntary return to the home country or, the case may be, resettlement in a third country as an alternative to return, and witness protection. 26 The 19 H-J Albrecht, in: T Marauhn, (ed.), Internationaler Kinderschutz, 2005, p. 97, at 118; A Gallagher, Article 35, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1356, at 1360. 20 See Human Rights Council, Resolution 29 on Unaccompanied Migrant Children and Adolescents and Human Rights, A/HRC/29/L.24, 2015, para. 1. 21 See C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 428. 22 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 429. 23 See CRC Committee, Concluding Observations: Namibia, CRC/C/NAM/CO/2-3, 2012, para. 72; Peru, CRC/C/PER/CO/3, 2006, para. 68; Bhutan, CRC/C/BTN/CO/3-5, 2017, para. 47; Slovakia, CRC/C/SVK/CO/3-5, 2016, para. 59; Nepal, CRC/C/NPL/CO/3-5, 2016, para. 72; Federated States of Micronesia, CRC/C/FSM/CO/2, 2020, para. 67. 24 See CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, para. 5; Cameroon, CRC/C/CMR/CO/2, 2010, para. 76; Georgia, CRC/C/GEO/CO/3, 2008, para. 69. 25 CRC Committee, Concluding Observations: Denmark, CRC/C/DNK/CO/4, 2011, para. 63; Seychelles, CRC/C/SYC/CO/2-4, 2012, para. 66. 26 See, e.g., CRC Committee, Concluding Observations: Romania, CRC/C/ROU/CO/5, 2017, para. 43; Algeria, CRC/C/DZA/CO/3-4, 2012, para. 78; Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 64; Albania, CRC/C/ALB/CO/2-4, 2012, para. 83; Israel, CRC/C/ISR/CO/2-4, 2013, para. 69; Bahrain, CRC/C/BHR/CO/2-3, 2011, para. 71; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 78; Philippines, CRC/C/ OPSC/PHL/CO/1, 2013, para. 38; Nepal, CRC/C/OPSC/NPL/CO/1, 2012, paras 41 et seq.; Slovakia, CRC/C/OPSC/SVK/CO/1, 2013, para. 43; Sweden, CRC/C/OPSC/SWE/CO/1, 2012, para. 37.

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[Measures against Child Trafficking]

appointment of a competent guardian serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied child victim.27 Furthermore, the CRC Committee has variously called on States Parties to strengthen their efforts to identify child trafficking including through training, and the development of formal procedures and mechanisms.28 Finally, the CRC Committee, in view of increasing trans-border child trafficking, calls on States Parties to make the relevant criminal offences subject to extradition and to engage in both informal and formal legal cooperation and to exercise jurisdiction to limit impunity for trafficking offences.29 7 Moreover, the term “prevention” in Article 35 CRC generally refers to measures directed towards the causes of trafficking.30 Also, Article 9 OPSC explicitly references preventive and assistance measures in order to protect the child victim. The CRC Committee therefore calls on States Parties to ensure that adequate legal documentation of the child’s birth and citizenship is in place and available,31 as this will make child trafficking more difficult. Since child trafficking feeds into a global market for cheap, unregulated and exploitable labour on the part of the employers and for cheap goods and services on the part of the consumers, the CRC Committee urges the States Parties to address these demands.32 Other monitoring bodies such as the Human Rights Committee and the CEDAW Committee also issue similar recommendations. 33

IV. Embedding of Article 35 CRC into the System of International Human Rights Protection 8

The combat against child trafficking within the meaning of Article 35 CRC is strongly pursued at the universal level. The first instrument on the subject was the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.34 An important step in combatting transnational organised crime in trafficking is the 2000 Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children (so-called Palermo Protocol),35 which supplements the UN Convention against Transnational Organized Crime of 2000.36 Developed under the auspices of the UN Crime Commission, the Palermo Protocol establishes for the first time an internationally valid definition of trafficking in human beings and children. In principle, three cumulative elements for the existence of human trafficking are required: a criminal offence, a means of influencing or breaking the will of a person

27 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, paras 21, 33. Similar assessment by FRA, Guardianship Systems for Children Deprived of Parental Care in the European Union, 2018, p. 4. 28 CRC Committee, Concluding Observations: Malaysia, CRC/C/MYS/CO/1, 2007, para. 96; Suriname, CRC/C/SUR/CO/3-4, 2016, para. 40; Oman, CRC/C/OPSC/OMN/CO/1, 2009, para. 30. 29 See CRC Committee, Concluding Observations: Singapore, CRC/C/SGP/CO/2-3, 2011, para. 67; Sri Lanka, CRC/C/LKA/CO/3-4, 2010, para. 74; Barbados, CRC/C/BRB/CO/2, 2017, para. 59; Andorra, CRC/C/AND/CO/2, 2012, paras 48 et seq. 30 For a fuller account see A Gallagher, The International Law of Human Trafficking, 2010, p. 414-453. 31 CRC Committee, Concluding Observations: Armenia, CRC/C/ARM/CO/3-4, 2013, paras 47 et seq.; Djibouti, CRC/C/DJI/CO/2, 2008, para. 34; Bangladesh, CRC/C/OPSC/BGD/CO/1, 2007, para. 3. 32 CRC Committee, Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, 2010, para. 82; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 77. 33 See Human Rights Committee, Concluding Observations: Paraguay, CCPR/C/PRY/CO/3, 2013, para. 17; CEDAW Committee, Concluding Observations: Pakistan, CEDAW/C/PAK/CO/4, 2013, para. 24; Andorra, CEDAW/C/AND/CO/2-3, 2013, para. 24. 34 96 UNTS 271. 35 2237 UNTS 319. 36 2225 UNTS 209.

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[Measures against Child Trafficking]

Art. 35

and an exploitative purpose for whatever private gain.37 However, for the fulfilment of the offence "child trafficking", the presence of a criminal offence and the exploitation of the child are sufficient.38 The Palermo Protocol also sets out a range of obligations on States Parties with respect to the prevention of trafficking, protection of victims and prosecution of perpetrators.39 There are also UN Special Rapporteurs on sexual violence in armed conflicts (since 2010) and on violence against children (since 2009) who regularly report to the UN Secretary-General. The former Commission on Human Rights and today’s Human Rights Council have also appointed several Special Representatives for the global fight against child trafficking, child prostitution and contemporary forms of slavery. Child trafficking or similar forms of exploitation can also be understood, regardless 9 of their purpose, as practices similar to slavery, which are prohibited under Article 8 ICCPR and Article 4 ECHR. Both norms apply equally to adults and children. In particular, the ECtHR has made it clear that in view of its obligation to interpret the Convention in the light of present-day conditions, it is unnecessary to determine whether trafficking in human beings constitutes slavery, servitude or forced and compulsory labour. Instead, the Court concludes that trafficking in itself falls within the scope of Article 4 ECHR.40 The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery can also be applied to the trafficking in children with the purpose of exploiting them. The 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others41 generally protects against the exploitation of persons for sexual purposes. Finally, exploitation, especially of women and girls, for sexual purposes is proscribed by Article 6 CEDAW. At the European level, the Council of Europe Convention on Action against Traffick- 10 ing in Human Beings of 16 May 200542 has taken over the rules of the Palermo Protocol in its Article 4 lit. a.43 The peculiarity of this human rights instrument is that it places trafficking in human beings in an explicitly human rights context, which is why standards for the protection of victims, especially in dealing with children, are of central importance besides incriminating human trafficking in general.44 Thus, the 2005 Convention provides for the issuance of residence permits to victims of trafficking in various situations and contains specific protections relating to minors in general and unaccompanied minors in particular. However, even under this enhanced regional human rights regime, it remains largely up to the prerogative of States to determine the material and personal scope of residence permits for victims of trafficking.45 Nevertheless, it should be noted that victims of trafficking, depending on the circumstances, may be eligible for

For more detail see V Chetail, International Migration Law, 2019, p. 252-255. For a fuller account see M Nowak/H Sax/B Weichselbaum, Kinderhandel in Österreich – aktuelle öffentlich-rechtliche Fragestellung zu Kooperation und Opferschutz, ACTnow 2014, p. 3, at 4. 39 See A Gallagher, Article 35, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1356, at 1358; V Chetail, International Migration Law, 2019, p. 262 et seq. 40 ECtHR, Judgment of 7 January 2010, No. 25965/04, paras 277-282 – Rantsev v. Cyprus and Russia. 41 96 UNTS 271. 42 CETS No. 197. 43 A Schmidt, Human Trafficking – Between Punishable Human Rights Violations and Decriminalization, European Criminal Law Review 10 (2020), p. 272, at 275. 44 M Nowak/H Sax/B Weichselbaum, Kinderhandel in Österreich – aktuelle öffentlich-rechtliche Fragestellung zu Kooperation und Opferschutz, ACTnow 2014, p. 3, at 4. See also H Satzger/P Siegle, Remuneration and Forced Labour, European Criminal Law Review 10 (2020), p. 241, at 242-243. 45 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 417. 37

38

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Art. 35

[Measures against Child Trafficking]

refugee protection under the 1951 Geneva Refugee Convention.46 This underscores the importance of appropriate channelling into and between immigration procedures and of identifying victims of child trafficking.47 In line with the 2005 Convention, the ECtHR has, in many cases, also dealt with the protection of (potentially abused and exploited) children as witnesses in hearings.48 The chosen conditions of testimony must be compatible with the basic principles of the legal system of the Member State concerned and must not deny the accused or defendant of their right to a fair trial, as enshrined in Article 6 ECHR.49 11 In the European Union, criminal protections against trafficking in children and human beings are a widely Europeanised matter. Accordingly, the Council of the EU adopted already in 2002, the Framework Decision 2002/629/JI on the fight against trafficking in human beings,50 which aimed at reducing the differences in the legal orders of the Member States and developing effective cooperation between the judicial and law enforcement authorities in combatting trafficking in human beings. The EU Trafficking Directive 2011/36/EU,51 which replaced the aforementioned Framework Decision, takes up its provisions and extends them in view of particularly protecting the child victim.52 The Council Framework Decision 2004/68/JI on Combating the Sexual Exploitation of Children and Child Pornography53 had, for the first time in European history, the objective of approximating the laws of the Member States in the field of police and judicial cooperation in criminal offences against the sexual exploitation of children and child pornography. It is now superseded by Directive 2011/92/EU, which includes new criminal provisions with regard to “grooming” and “access to child pornography”.54 Prevention of sexual abuse of children is also the aim of Council Decision 2005/876/JI on the organisation and content of the exchange of information extracted from the criminal record between the Member States.55 In this way, sex offenders are to be prevented from circumventing prohibitions by emigrating to another Member State.56 Finally, Member States must in regard to vulnerable victims, including children, provide a specific treatment appropriate to their situation. The EU Protection of Victims Directive 2012/29/EU

46 See UNHCR, Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked, HCR/GIP/06/07, 2006. 47 C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 417. 48 ECtHR, Judgment of 2 February 2002, No. 34209/96, paras 44 et seq. – S.N. v. Sweden; Judgment of 20 December 2001, No. 33900/96, para. 22 – P.S. v. Germany, Judgment of 24 April 2007, No. 17122/02, para. 42 – B v. Finland; Judgment of 28 May 2015, No. 41107/10, paras 114 et seq.– Y. v. Slovenia. 49 ECtHR, Judgment of 14 December 1999, No. 37019/97, para. 26 – A.M. v. Italy; Judgment of 20 December 2001, No. 33900/96, paras 26 et seq. – P.S. v. Germany; Judgment of 19 June 2007, No. 21508/02, paras 60 et seq. – W.S. v. Poland. See also CJEU, Judgment of 16 June 2005, Case 105/03, ECLI:EU:C: 2005:386, paras 50 et seq. – Pupino; Judgment of 21 December 2011, Case 507/10, ECLI:EU:C:2011:873, para. 25 – X. For a fuller account on the issue see S Schmahl, Report on Child-Friendly Justice: Existing International and European Standards, in: Council of Europe, Directorate General of Human Rights and Legal Affairs (ed.), Compilation of texts related to child-friendly justice, May 2009, p. 20, at 27 et seq. 50 OJ EU 2002, No. L 203, p. 1. 51 OJ EU 2011, No. L 101, p. 1. 52 For more detail see H Satzger/F Zimmermann/G Langheld, The Directive on Preventing and Combatting Trafficking in Human Beings and the Principles Governing European Criminal Policy. A Critical Evaluation, European Criminal Law Review 2013, p. 107-120. 53 OJ EU 2004, No. L 13, p. 44. 54 OJ EU 2012, No. L 26, p. 1 revised by OJ EU 2014, No. L 124, p. 1. 55 OJ EU 2005, No. L 322, p. 33. 56 See H Stalford/E Drywood, Coming of Age? Children’s Rights in the European Union, Common Market Law Review 46 (2009), p. 143, at 153 et seq.

462

Art. 36

[Protection Against All Other Forms of Exploitation]

places the rights of victims, especially children, in criminal proceedings on a broad basis by guaranteeing accompanied assistance in legal proceedings to child victims.57

Article 36 [Protection Against All Other Forms of Exploitation] States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of Article 36 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Embedding of Article 36 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4

I. Generalities In relation to Article 19 and to Articles 32 to 35 CRC, which all deal with the 1 exploitation of children in a specific context, Article 36 CRC proves to be a subsidiary catch-all clause.1 Accordingly, Article 36 CRC requires States Parties to protect children against all other forms of exploitation which could affect the welfare of the child in any way. Thus, Article 36 CRC closes existing gaps in the Convention and is aimed at avoiding any lacunae in protecting children from exploitation.2

II. Scope of Article 36 CRC In view of the drafting history, there is no doubt that Article 36 CRC has a broad 2 scope of application. This fact is confirmed by the ordinary meaning of the phrase “all possible forms of exploitation”.3 However, it is not entirely clear how “exploitation” should be defined in this context. Neither the drafting history nor the CRC Committee’s work gives guidance on the issue. The CRC Committee has only listed a range of sexually exploitative practices that fall under the scope of Article 19 CRC, 4 but has not yet explained the term exploitation. Yet, in contrast, ECPAT International and the UN Special Rapporteur on Violence Against Children have provided a useful approach of defining exploitation of children. According to them, the term exploitation refers to one or more persons taking unfair advantage of a child by encouraging or coercing the child by whatever means to undertake an activity that provides these persons with an illegitimate benefit.5 Despite the wording of Article 36 CRC, it is not necessary that there is a nexus proven between exploitation and prejudice to the child’s welfare. The exploita57 OJ EU 2012, No. L 315, p. 57. For more detail see FRA, Handbook on European Law Concerning the Rights of the Child, 2015, p. 212 et seq. 1 See Commission on Human Rights, Report of the Working Group, E/CN.4/1987/25, 1987, paras 90-81. See also O Jantschek, in: S von Schorlemer (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 127, at 132. 2 J Tobin, Article 36, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1402, at 1403. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 36.01. 3 J Tobin, Article 36, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1402, at 1408. 4 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 25. 5 For more detail see S Greijer/J Doek, Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse, adopted by the Inter-Agency Working Group on Sexual Exploitation of Children, Luxemburg 2016, p. 25 et seq., with reference to the Secretary General’s Bulletin on

463

Art. 36

[Protection Against All Other Forms of Exploitation]

tion of a child invariably involves some form of immediate, transitory, permanent or long-term prejudice to the well-being and the best interests of a child.6 For example, the misuse of children for medical experiments or the trafficking of children’s organs can fall under the ambit of Article 36 CRC.7 The CRC Committee further expresses its concern about the various forms of violence that still persist in different States, especially at schools and in families.8 Governments remain therefore called upon to commission studies to shed light on the extent, purpose and nature of these practices, and to conduct more campaigns to sensitise society to this issue. The CRC Committee also suggests reviewing existing structures for their effectiveness and better training staff working in these areas.9 3 Article 36 CRC obliges States Parties to take all appropriate measures to respect, protect and fulfil the right of all children to be protected against any form of exploitation.10 Although States Parties enjoy a level of discretion with respect to the determination of the kind of measures they adopt, such measures must be effective and consistent with the other Convention guarantees. In that regard, there is no leeway for the States Parties.11 States Parties must not only enact criminal provisions but also take preventive social and educational measures which address factors that leave children vulnerable to exploitation. This includes the need for States Parties to support parents and caregivers in child-rearing.12 Furthermore, States Parties should provide remedial or rehabilitative measures for children who are victims of exploitation. Particular attention shall be given to medical and psycho-social support, recovery and reintegration for children who have experienced violence and exploitation.13 The principle of effectiveness requires that States offer an integrated, cohesive, comprehensive, interdisciplinary and coordinated system on all State levels to encounter all forms of violence against children.14

III. Embedding of Article 36 CRC into the System of International Human Rights Protection 4

Since Article 36 CRC is an umbrella clause that aims to ensure that children receive full protection from exploitation even in cases which are not regulated by the specific provisions of Article 19 and Articles 32 to 35 CRC, it is not astonishing that there is no international human rights norm that corresponds to Article 36 CRC.

Special Measures for Protection from Sexual Exploitation and Abuse. See also J Tobin, Article 36, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1402, at 1409. 6 Rightly so, J Tobin, Article 36, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1402, at 1410-1412. 7 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 229; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 280. 8 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 34 et seq. 9 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 40 et seq. 10 J Tobin, Article 36, in: id. (ed.), The UN Convention on the Rights of the Child, 2019, p. 1402, at 1404-1405. 11 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 37. 12 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, paras 43-44. See also → Article 18 mns. 8 et seq. 13 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 52; Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 46. See also → Article 39 mn. 1. 14 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 39.

464

Art. 37

[Protection from Torture, the Death Penalty and Life Imprisonment]

Article 37 [Protection from Torture, the Death Penalty and Life Imprisonment, Guarantees by Imprisonment] States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Prohibition of Torture, the Death Penalty and Life Imprisonment (Article 37 lit. a CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Prohibition of Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 37 lit. a, sentence 1 CRC) . . . . . . . . . . . . . 2. Prohibition of the Death Penalty (Article 37 lit. a, sentence 2 alt. 1 CRC) 3. Prohibition of Life Imprisonment without Parole (Article 37 lit. a, sentence 2 alt. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Deprivation of Liberty (Article 37 lit. b-lit. d CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Conditions for the Deprivation of Liberty (Article 37 lit. b CRC) . . . . . . . . . 2. Conditions and Treatment During Deprivation of Liberty (Article 37 lit. c CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Legal Protection in Regards to Deprivation of Liberty (Article 37 lit. d CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 37 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Prohibition of Torture and the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Rights of Children Deprived of Liberty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 3 7 8 9 9 19 27 31 31 33

I. Generalities Article 37 CRC contains elementary protections against torture, the death penalty 1 and life imprisonment for children, and establishes several guarantees in cases of deprivation of liberty. In its entirety, Article 37 CRC takes an area which has already attracted attention in numerous general human rights treaties since the emergence of the idea of the protection of human rights. As human beings, children like adults are protected by the relevant provisions in general human rights instruments, such as Article 9 ICCPR

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Art. 37

[Protection from Torture, the Death Penalty and Life Imprisonment]

and Article 5 ECHR.1 However, Article 37 CRC extends these rights to the special needs and experiences of children who are deprived of liberty.2 Although Article 37 CRC is mainly applicable to arrest, detention or imprisonment in the context of criminal justice under the provisions of Article 37 lit. b CRC, the article is not limited to such matters. Article 37 CRC applies, at least in principle, to all the manifestations of deprivation of liberty by State authorities.3 For instance, compulsory placement and treatment of children with psychosocial disabilities in child protection, in child psychiatric or in child welfare institutions are therefore also included in the scope of Article 37 CRC. The scope of the norm extends to all restrictions of children’s bodily movement in any context. 4 2 International children’s rights law aims to protect children deprived of their liberty because of the impact that deprivation of liberty has on children’s rights and their shortand long-term interests.5 Children deprived of liberty are often confronted with denial or violation of their rights, including the lack of adequate service essential for their well-being and development, such as sanitation, nutrition, health care, education and family contact.6 Many children languish in pre-trial detention for months or even years,7 are held in immigration detention for inappropriate reasons,8 or are subjected to various forms of administrative detention, without the necessary safeguards.9 In addition, children deprived of their liberty often belong to the most stigmatised groups in society. 10 Against this background, the international community agreed on the need to specifically protect children deprived of liberty, on a higher level than adults.11 Therefore, Article 37 CRC has to engender a child-centred understanding of the rights enshrined therein.12

1 Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of Person), CCPR/C/GC/35, 2014, para. 3. See also, with regard to Article 5 para. 1 ECHR, ECtHR, Judgment of 28 November 1988, No. 10929/84, para. 58 – Nielsen v. Denmark. 2 J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1422. 3 See CRC Committee, General Comment No. 13, CRC/C/GC/2011, 2011, paras 26, 32; CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 5. See also W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37, p. 1. 4 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 37.02. 5 Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/HRC/28/68, 2015, para. 16. 6 For more detail, see Human Rights Council, Joint Report of the Office of the High Commissioner for Human Rights, the United Nations Office on Drugs and Crime and the Special Representative of the Secretary-General on Violence against Children on Prevention of and Responses to Violence against Child Juvenile Justice System, A/HRC/21/25, 2012. See also N Peleg, The Child’s Right to Development, 2019, p. 105 et seq. 7 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 80; General Comment No. 24, CRC/C/GC/24, 2019, para. 86. See also CRC Committee, Concluding Observations: Guinea, CRC/C/GIN/CO/2, 2013, para. 85; Austria, CRC/C/AUT/CO/3-4, 2012, para. 66; Algeria, CRC/C/DZA/CO/3-4, 2012, para. 82; Cambodia, CRC/C/KHM/CO/2, 2011, para. 76. 8 FRA, European Legal and Policy Framework on Immigration Detention of Children, 2017, p. 45. 9 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 323. 10 T Liefaard, Deprivation of Liberty of Children in Light of International Human Rights Law and Standards, 2008, p. 1 et seq. 11 See Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/HRC/38/36, 2018, para. 53. Further see T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 323. 12 J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1422.

466

[Protection from Torture, the Death Penalty and Life Imprisonment]

Art. 37

II. Prohibition of Torture, the Death Penalty and Life Imprisonment (Article 37 lit. a CRC) 1. Prohibition of Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 37 lit. a, sentence 1 CRC) Under Article 37 lit. a CRC, States Parties are required to ensure that no child be sub- 3 ject to torture or other cruel, inhuman or degrading treatment or punishment. A significant number of treaties prohibit States from using torture and other ill-treatment, including the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),13 the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT),14 Article 7 ICCPR, Article 3 ECHR, Article 5 para. 2 ACHR, Article 5 ACHPR and Article 16 para. 1 ACRWC. Torture and other ill-treatment are also prohibited under the four 1949 Geneva Conventions and the Rome Statute of the ICC.15 Finally, the prohibition of torture falls indisputably within the cannon of international jus cogens.16 Article 37 lit. a CRC continues international law’s commitment to the prohibition against torture without enumerating specific forms of treatment that violate the prohibition.17 There are attempts from international ad-hoc criminal tribunals, in particular from 4 the International Criminal Tribunal for the former Yugoslavia (ICTY), to define torture without having recourse to the element of sovereign infliction by people acting in their official capacity.18 However, in regards to the scope of Article 37 lit. a CRC a definition of torture must be assumed which corresponds to Article 1 para. 1 CAT, that is to say, to coercive measures by persons acting in an official capacity only.19 With Article 19 CRC, the Convention contains a special provision primarily designed to protect against violence by non-State actors.20 Thus, the obligation to protect children against torture under Article 37 lit. a CRC only extends to the actions of State officials, for instance in juvenile detention centres and police cells, but not to non-State actors such as parents, guardians or other childcarers. Within other settings, such as home, private classroom and schoolyard, it is Article 19 CRC which demands States Parties to ensure the child’s protection against violence.21 It is thus dogmatically inconsistent that the CRC Committee condemns corporal punishment under Article 37 lit. a CRC when used in a private setting by persons acting in a private capacity, rather than referring to Article 19 CRC. 22 In regards Article 37 lit. a CRC, the CRC Committee requires that the national crimi- 5 nal law of States Parties contains an absolute and non-derogable prohibition of torture.23

1465 UNTS 85. ETS No. 126. 15 See only Common Article 3 of the Four Geneva Conventions, and Article 7 ICC Statute. 16 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 37.09, with further references. 17 J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1428. 18 See, e.g., ICTY, Judgment of 12 June 2002, No. IT-96-23 & IT-96-23/1-A, paras 146 et seq. – Prosecutor v. Kunarac; Judgment of 28 February 2005, IT-98-30/1-A, para. 284 – Prosecutor v. Kvocka. 19 CRC Committee, Concluding Observations: Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 38; Nigeria, CRC/C/NGA/CO/3-4, 2010, para. 38; Norway, CRC/C/15/Add.23, 1994, para. 15. 20 See → Article 19 mn. 2. 21 See → Article 19 mns. 2 et seq. Dissenting: J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1423, 1441-1442. 22 See, e.g., CRC Committee General Comment No. 8, CRC/C/GC/8, 2007, para. 2. 23 CRC Committee, Concluding Observations: Ukraine, CRC/C/15/Add.191, 2002, para. 35. 13

14

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Art. 37

[Protection from Torture, the Death Penalty and Life Imprisonment]

As such, no utilitarian arguments can be used to justify the use of torture.24 In this context, national law must provide an adequate definition of the concept of torture,25 and States Parties must adopt appropriate and effective criminal laws which prohibit conduct that would violate the prohibition. The CRC Committee rightly indicates that the elimination of mental and physical torture and violent punishment of children, through law reform and other necessary measures, is an immediate and unreserved obligation of States Parties.26 Non-compliance with this provision constitutes a grave violation of the rights of the child.27 The CRC Committee also calls upon States Parties to train and educate appropriate personnel in law enforcement, juvenile justice, the military, and militia and police accordingly.28 Furthermore, States Parties shall ensure that alleged instances of torture are effectively investigated and, where appropriate, prosecuted and sanctioned with commensurate penalties.29 Without an entitlement to demand an effective investigation by authorities of allegations of torture and ill-treatment, the prohibition under Article 37 lit. a CRC would be meaningless and illusory.30 The CRC Committee therefore calls upon States Parties to establish an independent, child-sensitive and accessible monitoring body to receive and consider the complaints of children involved in the administration of juvenile justice.31 However, the obligation of States to investigate and prosecute under Article 37 lit. a CRC are not premised on the fact that a child first makes a complaint. States Parties rather have to ensure that the relevant judicial authorities are exercising due diligence in investigating and prosecuting acts that amount to torture, even in the absence of a formal complaint when circumstances cast a doubt about the way confession was obtained.32 The CRC Committee further requires States Parties to establish laws which render evidence or confessions obtained by torture as inadmissible.33 Finally, the CRC Committee routinely calls upon States Parties to ensure victims of torture and ill-treatment receive adequate reparation or compensation.34 24 J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1429. 25 See CRC Committee, Report on the thirty-sixth session, CRC/C/140, 2004, para. 195. See also CRC Committee, Concluding Observations: Democratic Republic of Congo, CRC/C/COD/CO/2, 2009, para. 38; Uzbekistan, CRC/C/UZB/CO/3-4, 2013, para. 38; Philippines, CRC/C/PHL/CO/3, 2009, para. 40. 26 CRC Committee, General Comment No. 8, CRC/C/GC/8, 2007, para. 22. See also CRC Committee, Concluding Observations: Ghana, CRC/C/15/Add.73, 1997, para. 16; Montenegro, CRC/C/MNE/CO/1, 2010, para. 35; Ukraine, CRC/C/UKR/CO/3-4, 2011, para. 41. 27 See CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 70. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 37.08. 28 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 53; Concluding Observations: Turkmenistan, CRC/C/TKM/CO/2-4, 2015, para. 31; Tajikistan, CRC/C/15/Add.136, 2000, para. 29; Lithuania, CRC/C/LTU/CO/3-4, 2013, para. 50. 29 See CRC Committee, Concluding Observations: Uzbekistan, CRC/C/15/Add.167, 2001, para. 39; Turkey, CRC/C/15/Add.152, 2001, para. 39; Bahrain, CRC/C/BHR/CO/2-3, 2011, paras 42-43; Uruguay, CRC/C/URY/CO/3-5, 2015, para. 38; Russia, CRC/C/RUS/CO/4-5, 2014, para. 31; Cameroon, CRC/C/CMR/CO/2, 2010, para. 35; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 45; Belize, CRC/C/15/ Add.99, 1999, para. 22; Turkmenistan, CRC/C/TKM/CO/2-4, 2015, para. 31; Albania, CRC/C/ALB/CO/ 2-4, 2012, para. 84. 30 J Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, Harvard Human Rights Journal 23 (2010), p. 13, at 44-46. 31 CRC Committee, Concluding Observations: Togo, CRC/C/TGO/CO/3-4, 2012, para. 42; Cambodia, CRC/C/KHM/CO/2, 2011, para. 39; Moldova, CRC/C/MDA/CO/3, 2009, para. 73; Sweden, CRC/C/SWE/CO/5, 2015, para. 26. 32 Clearly so, CRC Committee, Concluding Observations: Israel, CRC/C/ISR/CO/2-4, 2013, para. 36 d. 33 CRC Committee, Concluding Observations: Ukraine, CRC/C/15/Add.191, 2002. See also → Article 40 mn. 20. 34 CRC Committee, Concluding Observations: Israel, CRC/C/ISR/CO/2-4, 2013, paras 36, 74; Guinea, CRC/C/GIN/CO/2, 2013, para. 47; Myanmar, CRC/C/MMR/CO/3-4, 2012, para. 52; China, CRC/C/CHN/CO/3-4, 2013, para. 44; Uruguay, CRC/C/URY/CO/3-4, 2015, para. 38.

468

[Protection from Torture, the Death Penalty and Life Imprisonment]

Art. 37

The prohibition of cruel, inhuman or degrading treatment or punishment is a catch- 6 all provision for cases in which the treatment does not exceed the threshold of torture. 35 The classification of treatment or punishment as one of the forbidden forms of “cruel, inhuman or degrading” depends on the nature, purpose and severity of a treatment.36 While torture under Article 37 lit. a CRC is an intentional infliction of severe pain and suffering on a child by a State authority who has the control or custody of the child,37 any other form of ill-treatment prohibited under Article 37 lit. a CRC need not involve intentional infliction or harm but must still reach a certain threshold of distress and suffering.38 However, the CRC Committee has not sought yet to define or distinguish torture from cruel, inhuman or degrading treatment. The CRC Committee has rather criticised numerous forms of inhuman or degrading treatment of children, avoiding any sharp distinction. These include various violations of the principle of appropriate conditions of imprisonment,39 and especially psychological intimidation,40 the use of solitary confinement and incommunicado detention of children,41 as well as brutality of the police against children and adolescents in general.42 The CRC Committee also rightly considers that cases where children with psychosocial disorders are exposed to electric shocks constitute a violation of the prohibition of inhuman and degrading treatment.43 In addition, the CRC Committee regards sexual assaults on children as manifestations of torture or other cruel, inhuman or degrading treatment.44 These are occasionally classified as torture methods per se, regardless of their severity, so that, at least, a partial equation of sexual abuse and torture can be assumed.45 While the CRC Committee itself has not explicitly made this comparison yet, it regularly points to the close link between sexual abuse and torture.46 In regards to Article 37 lit. a CRC, the CRC Committee has also drawn attention to the phenomenon of the “disappearance” of children,47 although it 35 See UN General Assembly Resolution 39/46, A/RES/39/46, 10 December 1984, Annex, Article 16; UN General Assembly Resolution 3452 (XXX), A/RES/3452 (XXX), 9 December 1975. See also ECtHR, Judgment of 18 January 1978, No. 5310/71, para. 167 – Ireland v. The United Kingdom. 36 See Human Rights Committee, General Comment No. 7: Article 7 (Prohibition of torture or cruel, inhuman or degrading treatment or punishment), HRI/GEN/1/Rev.9(VOL.I), 2008, p. 180, para. 2, replaced by General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), HRI/GEN/1/Rev.9/VOL.I), 2008, p. 202, para. 4. 37 For more detail, see J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1442 et seq. 38 J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1424. 39 See, e.g., CRC Committee, Concluding Observations: Guyana, CRC/C/15/Add.224, 2004, para. 55; Iraq, CRC/C/IRQ/CO/2-4, 2015, para. 86; Azerbaijan, CRC/C/AZE/CO/3-4, 2012, para. 67. 40 See, e.g., CRC Committee, Concluding Observations: Uzbekistan, CRC/C/15/Add.167, 2001, para. 39; Israel, CRC/C/ISR/CO/2-4, 2013, para. 35. 41 See CRC Committee, Concluding Observations: Singapore, CRC/C/15/Add.220, 2003, para. 44; Kyrgyzstan, CRC/C/KGZ/CO/3-4, 2014, para. 28; Portugal, CRC/C/PRT/CO/3-4, 2014, para. 65; Sweden, CRC/C/SWE/CO/5, 2015, para. 25; Denmark, CRC/C/DNK/CO/4, 2011, para. 66; Luxembourg, CRC/C/LUX/CO/3-4, 2013, para. 51; Armenia, CRC/C/ARM/CO/3-4, 2013, para. 52; China, CRC/C/CHN/CO/3-4, 2013, para. 93. See also CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 95 b. 42 CRC Committee, Concluding Observations: Argentina, CRC/C/15/Add.187, 2002, para. 36. 43 See, e.g., CRC Committee, Concluding Observations: Cambodia, CRC/C/KHM/CO2-3, 2011 para. 38; CRC/C/KHM/CO/4, 2011, para. 38. 44 CRC Committee, Concluding Observations: Sudan, CRC/C/15/Add.190, 2002, para. 35. 45 In a similar vein, see ICTY, Judgment of 12 June 2002, No. IT-96-23 & IT-96-23/1-A, para. 149 et seq. – Prosecutor v. Kunarac. 46 See CRC Committee, Concluding Observations: India, CRC/C/15/Add.228, 2004, para. 42; Indonesia, CRC/C/IND/CO/3-4, 2014, paras 48 et seq.; Sudan, CRC/C/15/Add.190, 2002, para. 35. 47 CRC Committee, Conclusion Observations: Cameroon, CRC/C/15/Add.164, 2001, para. 34; Colombia, CRC/C/15/Add.137, 2000, para. 34.

469

Art. 37

[Protection from Torture, the Death Penalty and Life Imprisonment]

does not name any specific manifestations of torture or degrading treatment in that regard. Also, the mutilation of female genitals is considered as cruel abuse of the child, which must be sanctioned by the States Parties.48 Furthermore, the right of non-refoulement according to Article 33 para. 1 of the 1951 Geneva Refugee Convention is implicitly reiterated in Article 37 lit. a CRC.49

2. Prohibition of the Death Penalty (Article 37 lit. a, sentence 2 alt. 1 CRC) 7

International law still permits capital punishment for individuals aged over 18 years,50 but the imposition of this punishment on offences committed by individuals before they turn 18 years is a clear violation of Article 37 lit. a, sentence 2 CRC. The prohibition of the imposition of the death penalty on crimes committed by persons under 18 years of age is formulated unambiguously as an absolute prohibition, leaving no room for interpretation, discretion or derogation.51 Nevertheless, the CRC Committee had already found itself compelled to clarify the content of Article 37 lit. a, sentence 2 CRC on a number of occasions. The CRC Committee repeatedly criticises the fact that the national legal systems of various States Parties do not determine the legal age of majority, thus creating a possibility under national law to impose the death penalty also on crimes committed by persons under the age of 18.52 The prohibition against capital punishment is further concerned with the age at which a person commits the offence and not with the age at which the person is sentenced for the offence.53 The CRC Committee clarifies that States Parties are not allowed to execute persons over the age of 18 years for offences which they have committed under the age of 18.54 If there is no reliable and conclusive proof that the person was below the age of 18 years at the time the crime was committed, he or she should have the benefit of the doubt, and the death penalty may neither be imposed nor executed.55 Any death penalty imposed on a person who was below the age of 18 years at the time of the commission of the offence should be commuted to a sanction that is in full conformity with the Convention.56

3. Prohibition of Life Imprisonment without Parole (Article 37 lit. a, sentence 2 alt. 2 CRC) 8

In view of the prohibition of life imprisonment, similar conclusions regarding the age of the person apply as to the prohibition of the death penalty. However, the phrase “life imprisonment without possibility of release” raises difficulties because the “possibility of For more detail see → Article 24 mns. 26 et seq. C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 424. 50 For more detail see, e.g., W Schabas, The Abolition of the Death Penalty under International Law, 3 rd edn. 2002, p. 211 et seq.; R Hood/C Hoyle, The Death Penalty: A Worldwide Perspective, 2015, p. 223 et seq. 51 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 75. 52 CRC Committee, Concluding Observations: Saudi Arabia, CRC/C/15/Add.148, 2001, para. 27; Qatar, CRC/C/15/Add.163, 2001, para. 37. See also CRC Committee, Concluding Observations: Burkina Faso, CRC/C/15/Add.193, 2002, para. 60. 53 See J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1424, 1460 et seq.; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 37.10. 54 CRC Committee, Concluding Observations: Nigeria, CRC/C/NGA/CO/3-4, 2010, paras 90 et seq.; Bangladesh, CRC/C/BGD/CO/4, 2009, paras 46 et seq.; Niger, CRC/C/NER/CO/2, 2009, paras 80 et seq. See also CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 79. 55 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 79. 56 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 80. 48

49

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[Protection from Torture, the Death Penalty and Life Imprisonment]

Art. 37

release” can be interpreted generously, offering scope for arbitrary decision-making mechanisms. In this respect, the national legislation of some States Parties merely provides for the possibility of a pardon or a parole of persons sentenced to life imprisonment, without stipulating regular judicial review of the conditions of detention. States Parties with such judicial mechanisms in place are strongly criticised by the CRC Committee.57 Furthermore, Article 37 lit. a, sentence 2, alternative 2 CRC is confusing with regard to the use of deprivation of liberty in the context of juvenile justice as stated in Article 37 lit. b CRC, which only allows for a deprivation as a measure of last resort and for the shortest period of time. In contrast, Article 37 lit. a, sentence 2, alternative 2 CRC even allows the use of life imprisonment, provided that there is a possibility of release. The inclusion of this provision is the result of a compromise during the drafting of the Convention,58 which makes a consistent interpretation of the norm rather strenuous.59 The CRC Committee has therefore correctly observed that any life imprisonment of a child will make it difficult, if not impossible, to achieve the aims of juvenile justice (i.e. reintegration into society) despite the possibility to release. Consequently, the CRC Committee recommends abolishing all forms of life imprisonment, including indeterminate sentences, for offences committed by persons under the age of 18 years. 60 The CRC Committee also underlines that sentences resulting in deprivation of liberty for a longer period of time must be subjected to periodic review.61 This requirement has recently been embraced by Article 10 para. 2 of the EU Directive 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings.62

III. Deprivation of Liberty (Article 37 lit. b-lit. d CRC) 1. Conditions for the Deprivation of Liberty (Article 37 lit. b CRC) Even though Article 37 lit. b CRC is not as explicit as Article 9 para. 1 ICCPR in 9 recognising the right to personal liberty, it is meant to protect this right.63 Article 37 lit. b, sentence 1 CRC obliges the States Parties to carry out a two-stage-test of the conditions of the deprivation liberty: the deprivation of liberty shall not be unlawful, and the personal liberty shall not be arbitrarily withdrawn. Although neither of the two terms has been addressed by the CRC Committee, it is clear that both prerequisites are part of the principle of legality, but they are not identical despite existing overlaps.64 Therefore,

57 See CRC Committee, Concluding Observations: Zambia, CRC/C/15/Add.206, 2003, para. 72; Dominican Republic, CRC/C/15/Add.238, 2004, para. 46. 58 See Commission on Human Rights, Report of the Working Group, E/CN.4/1986/39, 1986, para. 104; E/CN.4/1989/48, 1989, paras 541 et seq. See also S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 475. 59 Rightly so, T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 332. 60 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 77. 61 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 77; General Comment No. 24, CRC/C/GC/24, 2019, para. 81. 62 OJ EU 2016, No. L 132, p. 1. 63 See T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 324. See also J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1469-1470. 64 See J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1470-1471, with further references.

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Art. 37

[Protection from Torture, the Death Penalty and Life Imprisonment]

both terms must be understood in a cumulative manner.65 The requirement of lawfulness demands that deprivation of liberty be in harmony with the applicable laws of the Contracting State. The prohibition of arbitrariness requires that the application of these laws is not disproportionate and non-discriminatory and that the laws themselves are based on appropriate, reasonable considerations and respect the principle of proportionality.66 10 While Article 37 lit. b, sentence 1 CRC establishes general requirements known from other human rights instruments, Article 37 lit. b, sentence 2 CRC includes two conditions specifically tailored to the situation of children. According to this provision, arrest, detention or imprisonment of a child in conformity with the law may be applied only as a measure of last resort and for the shortest appropriate period of time. The introduction of the requirements of last resort and the shortest appropriate period of time has been characterised as being among the most notable improvements and innovations which the CRC sets out.67 The requirement of last resort can be found in general human rights provisions preceding the CRC, for instance in Article 9 para. 3 ICCPR and Article 5 para. 1 ECHR. However, Article 37 lit. b, sentence 2 CRC is the only human rights norm that explicitly connects both requirements in a cumulative manner – a measure of last resort and the shortest appropriate period of time – as part of the general conditions of lawfulness and non-arbitrariness.68 The requirements of last resort and the shortest appropriate period of time place States Parties under the obligation to use deprivation of liberty regarding children with the utmost restraint and only after careful consideration on an individual case-by-case basis, while taking into account the best interests of the child according to Article 3 CRC.69 As far as juvenile justice is concerned, Article 40 para. 4 CRC has also to be considered which stipulates that the use of child-friendly alternatives shall be preferable to imprisonment.70 Furthermore, according to Article 40 para. 1 CRC, the appropriateness of the deprivation of liberty should be understood in the light of the objectives of juvenile justice, which means that the duration of deprivation of liberty should be conducive to the child’s reintegration to society. This is not necessarily the shortest period of time but the shortest appropriate period of time with regard to detention until the child may be transferred from a closed institution to a semiopen institution as soon as possible.71 Thus, the CRC is more explicit and substantiated

65 For more detail see T Liefaard, Deprivation of Liberty of Children in Light of International Human Rights Law and Standards, 2008, pp. 174-184; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 37.13; see also M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 9 mn. 27. 66 See CRC Committee, Concluding Observations: Kazakhstan, CRC/C/15/Add.213, 2003, para. 67 d. 67 See N Cantwell, in: S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 19-30, at 28 et seq. 68 W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37, p. 78. 69 See CRC Committee, Concluding Observations: Turkmenistan, CRC/C/TKM/CO/2-4, 2015, para. 57; Indonesia, CRC/C/IND/CO/3-4, 2014, para. 78; Hungary, CRC/C/HUN/CO/3-5, 2014, para. 57. Further see W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37, p. 81; T Liefaard, Deprivation of Liberty of Children in Light of International Human Rights Law and Standards, 2008, p. 84. 70 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 23; General Comment No. 24, CRC/C/GC/24, 2019, para. 88. See also → Article 40 mn. 30. 71 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 332. See also CRC Committee, Concluding Observations: Belarus, CRC/C/BLR/CO/5-6, 2020, para. 43; ECtHR, Judgment of 6 May 2008, No. 20817/04, paras 29 et seq. – Nart v. Turkey; Judgment of 20 January 2009, No. 70337/01, para. 108 – Güvec v. Turkey.

472

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Art. 37

in this context than other human rights treaties and calls for a tailor-made, child-specific approach, different in each individual case.72 On the other hand, the question of whether Article 37 lit. b CRC does indeed reach 11 out to all forms of deprivation of liberty is not answered very clearly. The scope of the norm has been subject to debate during the drafting of the Convention. The final version which expressly refers to “arrest, detention or imprisonment of a child”, was deliberately chosen in Article 37 lit. b, sentence 2 CRC in difference to the other guarantees laid down in Article 37 CRC.73 In contrast to Article 37 lit. b sentence 1, lit. c and lit. d CRC, which generally refer to “deprivation of liberty”, the drafters of the Convention explicitly decided to frame Article 37 lit. b, sentence 2 CRC in such a way as to consider only the criminal sanctions “arrest, detention or imprisonment of a child” which are to be placed under the conditions of “last resort” and “shortest appropriate period of time”.74 At the time of drafting the Convention, some countries were unwilling to limit their discretion regarding the form of deprivation of liberty outside the scope of juvenile justice. Consequently, one could argue, on the basis of the travaux préparatoires, that the last resort and shortest appropriate period of time requirements apply only to juvenile criminal justice cases.75 Thus, not every deprivation of liberty – for example, if it is medically justified or in regards to a deportation – is dependent on the special requirements of Article 37 lit. b, sentence 2 CRC.76 Nevertheless, efforts have been made recently to apply the special requirements of the 12 “last resort measure” and the “shortest appropriate period of time” not only in the area of deprivation of liberty due to criminal acts, but also in a general form.77 Only one year after the adoption of the CRC, the General Assembly issued the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”),78 and this (legally non-binding) instrument represents a broad approach that is not limited to juvenile justice.79 According to Rule 11 lit. b of the Havana Rules, deprivation of liberty is understood extensively as any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authorities.80 Under this definition, placements in a non-criminal context and even in semi-open institutions from which children are not allowed to leave can amount to a deprivation of liberty under Article 37 lit. b CRC.81 According to some scholars, the approach of the Havana 72 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 210, 214; T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 328, 330, 332. 73 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 477. 74 See Commission on Human Rights, Report of the Working Group, E/CN.4/1989/48, 1989, paras 546 et seq. 75 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 209, 214. 76 Inaccurate assessment by T Löhr, Kinderrechtskonvention: Aktuelle Entwicklungen in Gesetzgebung und Rechtsprechung, Recht der Jugend und des Bildungswesens 2012, p. 191, at 194. 77 For a comprehensive approach, see G Van Bueren, The International Law on the Rights of the Child, 1995, p. 211 et seq. 78 UN Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 14 December 1990. 79 See UN Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 14 December 1990, para. 2. Further see J Tobin, Time to Remove the Shackles: The Legality of Restrains on Children Deprived of their Liberty under International Law, International Journal of Children’s Rights 9 (2001), p. 213, at 220 et seq. 80 A similar definition can be found in the European Rules for Juvenile Offenders Subject to Sanctions or Measures (Council of Europe), 2009, Rule 21.5. 81 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 324 et seq.

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Rules is part of the trend towards the emancipation of deprivation of liberty standards from the narrower criminal law context to a broader scope of applicability.82 In fact, any other restrictive approach would result in a major inconsistency with Article 20 para. 3 CRC and related instruments relevant for children deprived of liberty.83 Furthermore, the prohibition of discrimination according to Article 2 para. 1 CRC also stands in the way of a strict understanding of the scope of Article 37 lit. b, sentence 2 CRC. 84 13 However, the CRC Committee’s position on the scope of the applicability of Article 37 lit. b, sentence 2 CRC remains unclear. On the one hand, the CRC Committee regularly refers to the Havana Rules and encourages the States Parties to implement and comply with these rules.85 On the other hand, this reference is usually made in the context of a deprivation of liberty of children on criminal grounds, which is, in any event, indisputably included in the scope of Article 37 lit. b, sentence 2 CRC. Only in isolated cases does the CRC Committee demand that the prerequisites of the “last resort measure” and the “shortest appropriate period of time” be complied with, even if there is no reference to a deprivation of liberty on criminal grounds, but merely a reference to a different form of deprivation of liberty such as administrative detention.86 14 This situation is particularly important in the area of non-criminal based deprivation of liberty in the area of asylum law and the area of alternative care, in particular with regard to immigration detention centres for the purpose of detention and child care institutions. In relation to alternative care, the CRC Committee nowadays underscores that institutionalisation, which may include forms of deprivation of liberty, must be a last resort.87 Especially with regard to Articles 20, 22 and 37 lit. b CRC, the CRC Committee also explicitly expresses its concern about those legal systems of States Parties that permit the immigration detention of children for the mere purpose of deportation 88 and requires that child-specific prerequisites under Article 37 lit. b, sentence 2 CRC are observed.89 The reason for this is that administrative detention with the aim to enable the execution of deportation is not a criminal detention; its sole purpose is to enable the de-

82 See W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37, p. 55, 84. 83 W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37, p. 85. See also → Article 20 mns. 10 et seq. 84 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 328. 85 See, e.g., CRC Committee, Day of General Discussion on the Administration of Juvenile Justice, CRC/C/43, 1995, para. 214; Concluding Observations: Portugal, CRC/C/PRT/CO/3-4, 2014, para. 66; Yemen, CRC/C/YEM/CO/4, 2014, para. 86; Canada, CRC/C/CAN/CO/3-4, 2012, para. 56 a; Hungary, CRC/C/HUN/CO/3-5, 2014, paras 37, 39; Chile, CRC/C/CHL/CO/4-5, 2015, para. 55 a; Latvia, CRC/C/LVA/CO/3-5, 2016, paras 60, 61; United Kingdom, CRC/C/GBR/CO/5, 2016, para. 53 d. 86 See, e.g., CRC Committee, Concluding Observations: Nepal, CRC/C/15/Add.57, 1996, para. 24. 87 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, para. 35; General Comment No. 21, CRC/C/GC/21, 2017, para. 45. See also CRC Committee, Concluding Observations: Sweden, CRC/C/SWE/CO/5, 2015, para. 49, and most recently: CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3CRC/C/GC/22, 2017, para. 10. 88 See CRC Committee, Conclusion Observations: Austria, CRC/C/15/Add.98, 1999, para. 27. See also CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, paras 54 et seq.; Germany, CRC/C/DEU/CO/3-4, 2014, paras 68 d, 69 d. See also CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4CRC/C/GC/23, 2017, para. 7. 89 See CRC Committee, Concluding Observations: United Kingdom, CRC/C/15/Add.188, 2002, para. 50 a; Canada, CRC/C/CAN/CO/3-4, 2012, para. 73; Bosnia and Herzegovina, CRC/C/BIH/CO/5-6, 2019, para. 43. See also CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 61.

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portation.90 The CRC Committee underlines that offences concerning irregular entry or stay cannot, under any circumstances, have consequences similar to those derived from the commission of a crime.91 In particular, children should not be criminalised or subject to punitive measures, such as detention, because of their parent’s migration status. 92 In view of Article 37 lit. b, read in conjunction with Articles 20 and 22 CRC, a national legal provision permitting a (maximum) period of 18 months in detention and which can also be applied to unaccompanied minors and families with minors is problematic under Convention law.93 For a young person, 18 months is a considerable period of life.94 In addition, detention for the purpose of deportation is not a criminal detention but is carried out solely for the purpose of executing the deportation order, which shows that it does not pursue any educational aim. In addition, the CRC Committee states that unaccompanied and separated children should not be deprived of their liberty and that detention cannot be justified solely by the fact that the child is unaccompanied or separated, or by their migratory or residence status or lack thereof.95 In recent times, the CRC Committee has gone even a step further: The possibility 15 of detaining children shall not be applicable in immigration proceedings as it would conflict with the principle of the best interests of the child (Article 3 CRC) and the child’s right to development (Article 6 CRC).96 Both the CMW Committee and the CRC Committee take the firm position that child and family immigration detention should be prohibited by law and its abolishment should be ensured in policy and practice and that resources dedicated to detention should be diverted to non-custodial solutions carried out by competent child protection actors.97 Similarly, the UN High Commissioner for Human Rights has clarified its position that children should not be detained for immigration-related purposes, irrespective of their legal migratory status or that of their parents, since detention is not in the child’s best interests.98 One could indeed question whether deprivation of liberty is ever in the best interests of the child. However, neither the text of the CRC nor any other human rights standard prohibits immigration detention.99 They only call for the strict application of the principle of proportionality, in

90 H Cremer, Abschiebungshaft und Menschenrechte: Zur Dauer der Haft und zur Inhaftierung von unbegleiteten Minderjährigen in Deutschland, 2011, p. 6. 91 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 10. 92 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 7. 93 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 68 d, 69 d. 94 H Cremer, Abschiebungshaft und Menschenrechte: Zur Dauer der Haft und zur Inhaftierung von unbegleiteten Minderjährigen in Deutschland, 2011, p. 6. 95 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 61. 96 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 12; Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 10. See also CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005, para. 61, and IACtHR, Advisory Opinion of 19 August 2014, OC-21/14, para. 150 – Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection. 97 CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 12. See also CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 86. 98 UNHCR, UNHCR’s Position Regarding the Detention of Refugee and Migrant Children in the Migration Context, 2017, p. 2. 99 FRA, European Legal and Policy Framework on Immigration Detention of Children, 2017, p. 30-31; T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 331.

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particular the requirement of last resort.100 Furthermore, the CRC Committee explicitly demands that the conditions at detention centres should meet children’s mental and physical health needs and should accommodate their overall development.101 16 Accordingly, Article 17 of the Directive 2008/115/EC102 as well as Article 11 of Directive 2013/33/EU 103 regulate that children may only in extreme cases and for the shortest appropriate period of time be detained in order to execute deportation, as appropriate in the light of the child’s well-being.104 As a rule, the best interests of the child must be given priority, which means that placement in a youth welfare institution is clearly preferable to a detention centre.105 The ECtHR also considers that the detention of an unaccompanied minor in an adult detention centre for the purpose of deportation constitutes a violation of Article 5 para. 1 lit. f ECHR.106 Similarly, the Court rules, in view of Article 5 para. 1 lit. d ECHR, which allows imprisonment for educational supervision of minors, that the deprivation of liberty should result in placement in an institution that is designed and provided with sufficient resources for the purpose.107 Generally, the case-law of the ECtHR makes clear that deprivation of liberty is not limited to criminal sanctions or to classic detention in prison or strict arrest, but encompasses all forced placements in closed institutions.108 It is not determinative whether the wall is locked or lockable.109 Even placements in an open department of a psychiatric hospital can constitute a deprivation of liberty.110 Relevant factors are the type, the duration, the manner of the implementation of the measure, the degree of supervision and control over the individual’s movement, the extent of isolation and the availability of social contacts.111 17 According to the Human Rights Committee, deprivation of liberty does not only involve deprivations on criminal grounds such as remand detention, imprisonment after conviction but extent to administrative detention, involuntary hospitalisation, institutional custody of children, and confinement to a restricted area of an airport as well

100 See, e.g., CMW Committee/CRC Committee, Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, paras 7-8. Different assessment by C Smyth, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 421, at 439. 101 CRC Committee, Concluding Observations: Australia, CRC/C/15/Add.668, 2005, para. 62; Venezuela, CRC/C/VEN/CO/2, 2007, para. 77; Argentina, CRC/C/ARG/CO/3-4, 2010, para. 79. 102 OJ EU 2008, No. L 348, p. 98. 103 OJ EU 2013, No. L 180, p. 96. 104 T Löhr, Kinderrechtskonvention: Aktuelle Entwicklungen in Gesetzgebung und Rechtsprechung, Recht der Jugend und des Bildungswesens 2012, p. 191, at 192 et seq. 105 See B Huber, Das 2. Richtlinienumsetzungsgesetz und weitere Änderungen im Ausländerrecht, Neue Zeitschrift für Verwaltungsrecht 2012, p. 385, at 388; idem, Unbegleitete minderjährige Flüchtlinge im Migrationsrecht, Neue Zeitschrift für Verwaltungsrecht-Extra 2016, p. 1, at 12. 106 See ECtHR, Judgment of 19 January 2010, No. 41442/07, paras 74 et seq. – Muskhadzhiyeva v. Belgium; Judgment of 24 October 2013, No. 71825/11, paras 76 et seq. – Houssein v. Greece. See also → Article 22 mn. 30. 107 ECtHR, Judgment of 29 February 1988, No. 9106/80, para. 50 – Bouamar v. Belgium; Judgment of 16 May 2002, No. 39474/98, para. 78 – D.G v. Ireland; Judgment of 23 March 2016, No. 47152/06, para. 167 – Blokhin v. Russia. 108 ECtHR, Judgment of 6 November 1980, No. 7367/76, para. 95 – Guzzardi v. Italy. 109 ECtHR, Judgment of 5 October 2004, No. 45508/99, para. 92 – H.L. v. The United Kingdom. 110 ECtHR, Judgment of 29 February 1988, No. 9106/80, paras 50 et seq. – Bouamar v. Belgium; Judgment of 28 May 1985, No. 8225/78, para. 42 – Ashingdane v. The United Kingdom. 111 See, ECtHR, Judgment of 8 June 1976, No. 5100/71 et al., paras 58 et seq. – Engel v. The Netherlands; Judgment of 6 November 1980, No. 7367/76, paras 92 et seq. – Guzzardi v. Italy; Judgment of 5 October 2004, No. 45508/99, para. 91 – H.L. v. The United Kingdom; Judgment of 16 June 2005, No. 61603/00, para. 73 – Storck v. Germany; Judgment of 29 March 2010, No. 3394/03, para. 73 – Medvedyev and Others v. France; Judgment of 23 February 2012, No. 29226/03, para. 91 – Creanga v. Romania.

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as being involuntarily transported.112 The Human Rights Committee underscores that deprivation of liberty in all these cases takes place without free consent. However, the normal supervision of children by parents or legal guardians a well as the ordinary requirements of daily school attendance may involve a degree of control over movements that would be inappropriate for adults, but they nevertheless do not constitute a deprivation of liberty for children.113 This is in contrast to the placement of a child in institutional care which generally amounts to deprivation of liberty for children,114 since the interference with the personal liberty results from a forceful confinement of a person at a certain narrowly bounded location.115 As regards consent, the case-law of the Human Rights Committee is not very child-specific. However, the ECtHR limits the subjective element of deprivation of liberty in cases where it is not disputed that the person is legally incapable of consenting to, or disagreeing with, the proposed action or confinement.116 Therefore, in its recent judgments, the ECtHR seems to assume that children cannot be considered to have the capacity to consent or object to the placement and should thus be granted protection under Article 5 ECHR.117 This position by the Court sets aside the Court’s earlier – and often criticised118 – ruling that a child’s placement by his or her parents or a legal representative does not amount to a deprivation of liberty. 119 Against these normative and juridical backgrounds, the broad definition of the Ha- 18 vana Rules which refers to all forced placements in institutions from which a child is not permitted to leave at his or her own will, represents the current international standard.120 The fact that deprivation of children’s liberty should only be used if strictly necessary and as short as possible, regardless of its context, is now a common standard in the case-law of the ECtHR, too.121 Therefore, Article 37 lit. b CRC has to be understood in an extensive way, as to include all forms of deprivation of liberty.

2. Conditions and Treatment During Deprivation of Liberty (Article 37 lit. c CRC) Article 37 lit. c CRC tackles with situations of children during deprivation of liberty 19 which means that a child is deprived of his or her liberty. In contrast to Article 37 lit. b CRC, the wording of Article 37 lit. c CRC is not confined to the criminal imprisonments such as pre-trial detention or arrest or post-trial imprisonment only, but refers explicitly

112 Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of Person), CCPR/C/GC/35, 2014, para. 5. 113 Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of Person), CCPR/C/GC/35, 2014, para. 62. 114 Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of Person), CCPR/C/GC/35, 2014, para. 62. 115 Similarly, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 9 mn. 4. 116 ECtHR, Judgment of 5 October 2004, No. 45508/99, para. 90 – H.L. v. The United Kingdom; Judgment of 16 June 2005, No. 61603/00, para. 75 – Storck v. Germany. 117 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 327. 118 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 212 et seq. 119 ECtHR, Judgment of 28 November 1988, No. 10929/84, paras 58 et seq. – Nielsen v. Denmark. 120 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 327. 121 See, e.g., ECtHR, Judgment of 16 December 1999, No. 24888/94, paras 98 et seq. – V v. The United Kingdom. For more detail see T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 329.

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to all forms of deprivation of liberty, including in a children's institution, in a psychiatric clinic or in a detention centre.122 20 First of all, the norm demands that every child who is deprived of liberty be treated with humanity, with respect for the inherent dignity of the human person, and with regard to his or her age and maturity. Article 37 lit. c CRC is widely modelled on Article 10 para. 1 ICCPR. Therefore, the CRC Committee regularly urges States to comply with international standards concerning the conditions for children deprived of their liberty, thereby including the legally non-binding standards of the Beijing Rules123 and the Havana Rules.124 However, Article 37 lit. c CRC differs from Article 10 para. 1 ICCPR with the addition of the phrase “in a manner which takes into account the need of persons of his or her age”. Thus, children shall not be treated as a homogeneous group, but differentiation has to be applied within the group in view of age-related needs and in an individual manner.125 This approach leads to a number of positive obligations on the part of the States Parties. These include, for example, the establishment of child-friendly infrastructure, in particular special institutions for children,126 a registration mechanism for the transport and imprisonment of minors, and certain minimum guarantees such as accommodation in an appropriate environment, the provision of theoretical and vocational education, the possibility of work and leisure, the provision of medical care, and the provision of a complaints and monitoring mechanism regarding detention conditions.127 Furthermore, treatment in accordance with Article 37 lit. c CRC means that States Parties take into account the needs and interests of the individual child. This implies that differences among children, relating to age, maturity, gender, disability, etc., ought to be considered when accommodating children, providing basic services during imprisonment or when reintegrating children.128 Despite the differences among children deprived of liberty, all children are entitled to be treated equally and to be protected against discrimination (see Article 2 CRC).129 These obligations are to be complied with by the States Parties regardless of the legality of the deprivation of liberty.130 The Human Rights Committee also stresses that the conditions of the deprivation of liberty are such funda-

122 Similarly, J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1482. See also → Article 37 mns. 11 et seq. 123 Standard Minimum Rules on the Administration of Youth Justice (“Beijing Principles”), UN General Assembly Resolution 40/33, A/RES/40/33, 19 November 1985. 124 As to the Havana Rules see → Article 37 mn. 12. Further see CRC Committee, Concluding Observations: Colombia, CRC/C/COL/CO/4-5, 2015, para. 67; Indonesia, CRC/C/IDN/CO/3-4, 2014, para. 78; Monaco, CRC/C/MCO/CO/2-3, 2013, para. 48; Venezuela, CRC/C/VEN/CO/3-5, 2014, para. 75; Belarus, CRC/C/BLR/CO/3-4, 2011, para. 72. 125 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 219; W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37 mn. 139. 126 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, paras 85, 89. See also Rule 29 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 127 See CRC Committee, Conclusion Observations: Turkey, CRC/C/15/Add.152, 2001, paras 65 et seq., General Comment No. 24, CRC/C/GC/24, 2019, para. 95. See also UN Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990, Rules 19 et seq. – Further see Article 17 of Directive 2008/115/EC, OJ EU 2008, No. L 348, p. 98, which states that minors in detention shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age. 128 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 334. See also CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/5-6, 2019, para. 48. 129 W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37, p. 89. 130 Similarly, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 10 mn. 8.

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mental rules that they shall not depend on the domestic conditions of States Parties. 131 Article 10 para. 1 ICCPR is not subject to a possibility of derogation, with the result that this provision has to be applied even in times of emergency.132 These considerations can be applied mutatis mutandis to Article 37 lit. c CRC, although the Convention does not contain an explicit derogation clause similar to Article 4 ICCPR.133 Based on the approach of Article 37 lit. c, sentence 1 CRC, also Article 37 lit. c, sen- 21 tence 2 CRC stipulates that children deprived of liberty shall, in particular, be separated from adults, unless it is considered in the child’s best interest not to do so. The CRC Committee notes the abundant evidence that the placement of children in adult prisons or institutions compromises their basic safety, well-being and their future ability to reintegrate to society.134 The (financial or geographical) situation of accommodation facilities within a State Party is not a legitimate reason to deviate from the requirement to separate children from adults.135 Children in pre-trial detention should be separated from adults and housed in a separate institution or in a separate part of an institution that also accommodates adults.136 However, Article 37 lit. c CRC does not prohibit children from being detained with adults in all circumstances. An exception to this general rule of separation may be based on the child’s best interests, for instance, when detained with parents, guardians or adult family members in immigration detention centres or refugees’ camps.137 Furthermore, it is decisive that the facilities for children deprived of liberty should 22 include distinct, child-centred staff, personnel, policies and practices.138 The CRC Committee further argues that a child placed in a facility for children must not be moved to a facility for adults immediately after he or she turns 18 years. Rather the stay in the facility for children should be continued if this is in his or her best interest.139 The CRC Committee considers the joint incarceration or placement of children under the age of 18 years and young persons of up to a maximum of 25 years which is applied in Germany as a breach of Article 37 lit. c CRC, since in such a case the different ages and their agespecific needs of these two groups of detainees are not sufficiently observed. 140 Article 37 lit. c, sentence 2 CRC grants every child the right to remain in contact with 23 his or her family through correspondence and visits, unless exceptional circumstances are present. This guarantee is unique to the Convention. A similar entitlement does only appear in Rule 59 of the (legally non-binding) Havana Rules and in Rule 10 of the (also 131 Human Rights Committee, General Comment No. 21: Humane treatment of persons deprived of their liberty (Article 10), HRI/GEN/1/Rev.9, (VOL.I), 2008, p. 204, para. 4. 132 Human Rights Committee, General Comment No. 29: Derogations during a state of emergency (Article 4), ICCPR/C/2/Rev.1/Add.11, 2001, para. 13 a. 133 See → Article 38 mn. 3. 134 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 85; General Comment No. 24, CRC/C/GC/24, 2019, para. 92. See also CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/5-6, 2019, paras 47 et seq. 135 CRC Committee, Conclusion Observations: Kyrgyzstan, CRC/C/15/Add.244, 2004, para. 66. 136 See Rule 13.4 and Rule 26.3 of the Standard Minimum Rules on the Administration of Youth Justice (“Beijing Principles”), UN General Assembly Resolution 40/33, A/RES/40/33, 19 November 1985, and Rule 29 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 137 J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1488. 138 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 85; General Comment No. 24, CRC/C/GC/24, 2019, para. 92. 139 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 86; General Comment No. 24, CRC/C/GC/24, 2019, para. 93. 140 CRC Committee, Conclusion Observations: Germany, CRC/C/15/Add.226, 2004, para. 60; CRC/C/DEU/CO/3-4, 2014, para. 74.

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non-binding) Beijing Rules.141 The inclusion of the right to maintain contact with the family in Article 37 lit. c CRC confirms the application of Articles 5, 9, 16 and 18 CRC to all children.142 The CRC Committee urges the States Parties to secure this right. 143 The possibility of restricting family contact must be an exception and shall only be applied in accordance with the child’s best interests (Article 3 CRC). In particular, such restrictions may not be used as leverage, pressure or a disciplinary measure against the child.144 24 Furthermore, the CRC Committee lists principles and rules with reference to the Havana Rules, that need to be observed in all cases of deprivation of liberty. These include rules relating to the physical environment and accommodation, education, health, contact with the outside world, the use of restraint or force, disciplinary measures, inspection and monitoring, and the right to make requests and complaints.145 In concrete terms, the legal status of children deprived of their liberty can be divided into three components.146 Firstly, these concern basic rights such as the right to an adequate standard of living (Article 27 CRC), to health care (Article 24 CRC), to education (Article 28 CRC) and to leisure and play (Article 31 CRC). Read in conjunction with Article 37 lit. a and lit. c CRC, accommodation rooms must be furnished appropriately and provide good access to natural light and adequate ventilation.147 The right to health care includes medical checks upon admission, general health and dental care.148 The rights to education and to leisure time call for the availability of education and opportunities to participate in play, sports, leisure and recreational activities in order to prevent the child’s isolation.149 The enjoyment of the rights to privacy and to family life (Article 16 CRC) and freedom of religion (Article 14 CRC) should also be fully respected.150 International standards assume that children should be allowed to use their own clothing.151 The right to family life has many implications, among others related to the information of parents on the detention of their child, the accommodation of the child in an institution which allows family contact and the rights of family visits.152 The freedom of religion has im-

For more detail see W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 37.17. Similarly, J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1489. 143 See CRC Committee, Concluding Observations: Philippines, CRC/C/PHL/CO/3-4, 2009, para. 81; United Kingdom, CRC/C/GBR/CO/4, 2008, para. 78; Kazakhstan, CRC/C/KAZ/CO/3, 2007, para. 70; General Comment No. 24, CRC/C/GC/24, 2019, para. 94. 144 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 220. 145 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 89; General Comment No. 24, CRC/C/GC/24, 2019, para. 95. 146 On the following, with greater detail, see T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 336. 147 For more detail see UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), A/RES/70/175, 17 December 2015; further see T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 336. 148 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 89. See also Rules 30 and 31 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 149 See Rule 32 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. Further see ECtHR, Judgment of 23 March 2016, No. 47152/06, para. 170 – Blokhin v. Russia. 150 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 337. 151 Rule 36 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 152 See Rules 30 and 67 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 141

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plications on the availability of representatives of different religions and for the food served in the institution.153 The second component of a child’s legal status concerns special protection rights 25 which include the prohibition of torture (Article 37 lit. a CRC) and the protection against all forms of violence (Article 19 CRC). These rights correspond with both negative and positive obligations for States Parties such as to set up a regulatory framework for the proportional use of disciplinary and screening measures154 and to safeguard independent oversight, unannounced inspections, and monitoring of places of detention.155 Furthermore, children have to be informed about the rules of the institution and their rights and obligations immediately after their arrival at the detention facility in a language they can understand.156 In addition to the child, also the child’s parents, guardians or other family members should be kept informed about the well-being and whereabouts of the child.157 Another relevant safeguard concerns the child’s file, which should be personal and regularly updated and reviewed, since the file serves as an important source of information for the institution and for the child.158 A controversial topic in this context is solitary confinement of children. Rule 67 of the Havana Rules and Rule 45 of the UN Standard Minimum Rules for the Treatment of Prisoners (“Nelson Mandela Rules”) are clear in ruling out the use of solitary confinement, so does the UN Special Rapporteur on Torture.159 The CRC Committee endorses this view and states that solitary confinement as a disciplinary measure must be strictly forbidden.160 In contrast, the ECtHR holds that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment. 161 Also, the European Rules for Juvenile Offenders162 allow in exceptional cases isolation in a calming down cell for a few hours, separation from others for security and safety reasons, and segregation for disciplinary purposes if other sanctions were not effective (Rules 91-95). In sum, a total ban of solitary confinement would not only tie the hands of the authorities responsible for the order of the prison and safety of the children, but

153 See Rules 37 and 48 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 154 See Rules 63-66 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. Further see T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 338, 340. 155 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 95. See also Rules 72-74 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990, and U Kilkelly/S Casale, Children’s Rights and the European Committee for the Prevention of Torture, 2012, p. 24. 156 Rules 24 and 25 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 157 Rule 56 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. 158 Rule 19 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. See also T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 339. 159 UN General Assembly, Interim Report of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/66/268, 2011, para. 77; Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/HRC/28/68, 2015, paras 44, 86 d. 160 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 89; General Comment No. 24, CRC/C/GC/24, 2019, para. 95. 161 ECtHR, Judgment of 18 March 2014, Nos. 24069/03 et al., para. 107 – Öcalan v. Turkey. 162 Recommendation CM/Rec(2008)11 of the Committee of Ministers on the European Rules for juvenile offenders subject to sanctions or measures.

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would even be counterintuitive to the protection of children.163 What is necessary, however, is that the solitary confinement should be a measure of last resort, based on a transparent decision-making process, during which the child is consulted, and the treatment is independently supervised.164 26 The third component of the legal status of children deprived of liberty concerns their reintegration.165 According to Article 40 CRC, children have the right to play a constructive role in society. As a consequence, reintegration has to be at the core of the approach toward children deprived of their liberty, which means that the provision of basic services including adequate and child-friendly accommodation, education and vocational training as well as individualised treatment programmes are of outmost importance.166 The right to maintain contact with the family is a useful tool, too, because the child can benefit therefrom also with regard to later reintegration. Therefore, a child should in principle be placed in a decentralised institution, e.g., in the vicinity of the child’s family.167

3. Legal Protection in Regards to Deprivation of Liberty (Article 37 lit. d CRC) 27

Finally, Article 37 lit. d CRC guarantees every child deprived of his or her liberty the right to prompt access to legal or other appropriate assistance in relation to his or her deprivation of liberty. In this regard, both Article 37 lit. d CRC and Article 37 lit. c CRC refer to all forms of deprivation of liberty and are not confined to the deprivation of liberty based on criminal acts.168 This right to habeas corpus is an immediate and direct entitlement of the child and not subject to a State’s available resources. 169 It also relates to the legality of continued deprivation of liberty.170 Under Article 5 ECHR, the right to habeas corpus has played a key role in the assessment of prolonged or continued pre-trial detention. Both can only be continued if there are relevant and sufficient reasons to do so, and the threshold for these requirements increases over time.171 Similarly, the CRC Committee recommends States Parties to set a fixed time limit for the duration of pretrial detention and for its judicial review that is preferably two weeks.172 If deprivation of liberty takes place in the area of alternative care, the legal basis for periodic review is to be found in Article 25 CRC.173 163 Rightly so, T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 343 et seq. 164 T Liefaard, Deprivation of Liberty of Children in Light of International Human Rights Law and Standards, 2008, 595 et seq. 165 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 346 et seq. 166 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 89; see also Rule 79 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. Further see ECtHR, Judgment of 23 March 2016, No. 47152/06, para. 170 – Blokhin v. Russia. 167 See Rule 30 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. See also T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 347. 168 W Schabas/H Sax, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 37, 2006, Article 37 mn. 150. 169 J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1492. 170 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 333. 171 See ECtHR, Judgment of 3 October 2006, No. 543/03, para. 46 – McKay v. The United Kingdom. 172 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 83. 173 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 333. See also → Article 25 mn. 6.

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Furthermore, according to Article 37 lit. d CRC, every child has the right to challenge 28 the legality of the deprivation of his or her liberty before a court or another competent, independent and impartial authority, and to a prompt decision on any such action. In regards to the competent authority explicitly mentioned in Article 37 lit. d CRC, this must not necessarily be a regular court. However, what is required is an authority which satisfies the conditions set out in the provision. This means that the authority must have the legal competence to independently and impartially rule on the legality of the deprivation of liberty and to order immediate release in the event of the illegality of the deprivation.174 Every child arrested and deprived of his or her liberty should be brought before a competent authority within 24 hours to examine the legality of the deprivation of liberty or its continuation. The CRC Committee also recommends that pre-trial detention is reviewed regularly with a view to ending it.175 In cases where conditional release of the child at or before the first appearance within 24 hours is not possible, the child should be formally charged with the alleged offences and be brought before a competent and impartial authority, primarily a court, for the case to be dealt with not later than 30 days after pre-trial detention takes effect.176 Complaint procedures should be child-sensitive, speedy, confidential and safe.177 The 29 right to a prompt decision has particular importance in the deprivation of liberty of a child. In regards to Article 9 para. 4 ICCPR, the content of which is equivalent to that of Article 37 lit. d CRC, a period of a few weeks not exceeding three months is considered appropriate.178 On the one hand, the CRC Committee affirmed this view in its General Comment No. 10 (2007),179 and on the other hand, it has also criticised a 45-day duration as excessively long in several Concluding Observations.180 In its most recent General Comment No. 24 (2019), the CRC Committee urges the States Parties to ensure that the case be dealt with as soon as possible but not later than 30 days after pre-trial detention takes effect.181 With regard to Article 12 and Article 40 CRC, the CRC Committee also assumes that children should be enabled to proceed through trials without the formal participation of their parents or persons responsible for their care.182 In addition, legal assistance should be made available to them free of charge immediately after arrest.183 The right to legal and other appropriate assistance for children deprived of their liberty is considered a valuable prerequisite for effective access to remedies. Legal assistance is directly relevant for the legal empowerment of children, not only in relation to the legality of the deprivation of liberty but also in relation to the right to an effective 174 See J Tobin/H Hobbs, Article 37, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1420, at 1496. 175 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 90. 176 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 90. 177 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 353. 178 See Human Rights Committee, A v. New Zealand, Views adopted on 3 August 1999, CCPR/C/66/D/754/1997; Torres v. Finland, Views adopted on 5 April 1990, CCPR/C/38/D/291/1988, para. 7.3. See also M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 9 mn. 57. 179 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 84. 180 See CRC Committee, Concluding Observations: Bolivia, CRC/C/15/Add.1, 1993, para. 11. See also CRC Committee, Concluding Observations: Sri Lanka, CRC/C/LKA/CO/3-4, 2010, para. 77; Burundi, CRC/C/BDI/CO/2, 2010, para. 76; Guatemala, CRC/C/GTM/CO/3-4, 2010, para. 99. 181 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 90. 182 CRC Committee, Concluding Observations: Burkina Faso, CRC/C/15/Add. 193, 2002, para. 62 e. But see also → Article 40 mn. 19. 183 See CRC Committee, Concluding Observations: St. Vincent and the Grenadines, CRC/C/15/ Add.184, 2002, para. 53; China, CRC/C/CHN/CO/3-4, 2013, para. 93; Sweden, CRC/C/SWE/CO/5, 2015, para. 58 a; Israel, CRC/C/ISR/CO/2-4, 2013, para. 74 b.

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remedy during the deprivation of liberty.184 The CRC Committee stresses the importance of children being aware of and having easy access to mechanisms for complaints and applications.185 Furthermore, the CRC Committee affirms that the child has also a right to assistance from a social worker or a translator, if necessary and appropriate. 186 30 The Federal Republic of Germany understands the right of immediate access to legal or other appropriate assistance enshrined in Article 37 lit. d CRC in such a way that the juvenile should not be assigned a public defender in every criminal proceeding. Rather, it is up to the Contracting States to decide whether to associate the juvenile delinquent with a public defender or any other adequate assistance.187 This interpretation is consistent with the wording and objective of Article 37 lit. d CRC. However, this also implies that every unaccompanied refugee child, especially if he or she is in detention pending deportation, must have a qualified legal counsel or another appropriate assistance.188

IV. Embedding of Article 37 CRC into the System of International Human Rights Protection 1. Prohibition of Torture and the Death Penalty 31

The prohibition of cruel, inhuman or degrading treatment or punishment appeared for the first time in a similar form in Article XXVI of the American Declaration of the Rights and Duties of Man. However, that Declaration still lacked a prohibition of torture. The normative precursors and parallel norms to Article 37 lit. a, sentence 1 CRC are found in Article 5 UDHR, Article 7 ICCPR and Article 5 para. 2 ACHR, Article 5 ACHPR and, finally, in Article 17 para. 2 lit. a ACRWC. In contrast, Article 3 ECHR does not mention cruel treatment but is otherwise consistent with the text of Article 5 UDHR. From a legal perspective, this omission is without consequence, which is illustrated by the extensive case-law of the ECtHR in the matter.189 Especially children are entitled to State protection in the form of effective deterrence to violations of their personal integrity.190 For example, the ECtHR regards the States’ positive obligation to protect under Article 3 ECHR as being infringed if children and their parents are exposed to threats and degrading treatment by a mass of people on the way to school over the course of weeks 191 or if juvenile authorities do not take charge of children, although they are neglected by their carer in terms of mental and physical hardship.192 The Court’s ruling in the case of Gäfgen v. Germany shows that even the (serious) threat of torture by

184 See Rule 77 of the Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113, 1990. See also T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 351. 185 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 89. 186 CRC Committee, Concluding Observations: Kuwait, CRC/C/KWT/CO/2, 2013, para. 77. See also CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 49. 187 See the First State Report of the Federal Republic of Germany to the UN according to Article 44 para. 1 lit. a CRC, 1994, p. 43. 188 Clearly in that regard: CRC Committee, General Comment No. 6, CRC/GC/2005/6, para. 69. See also CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 81. 189 See C Grabenwarter/K Pabel, Europäische Menschenrechtskonvention, 6 th edn. 2016, § 20 mns. 42 et seq. 190 T Schilling, Internationaler Menschenrechtsschutz, 3 rd edn. 2016, mn. 196. 191 ECtHR, Judgment of 23 November 2010, No. 28326/09, paras 15, 38 – P.F. and E.F. v. The United Kingdom. 192 ECtHR, Judgment of 10 May 2001, No. 29392/95, para. 74 – Z. and Others v. The United Kingdom, see also ECtHR, Judgment of 28 May 2013, No. 3564/11, para. 56 – Eremia v. Moldova.

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State officials falls under the prohibition of torture.193 The Council of Europe's European Committee for the Prevention of Torture (CPT) endorses the ECtHR's ruling on Article 3 ECHR and calls on States Parties to comply with the prohibition of torture against children in pre-trial, criminal or preventive detention without exception and to enact effective criminal laws to enforce the prohibition of torture in (privately owned) orphanages or psychiatric clinics.194 The ECtHR has also found that the failure of the authorities to organise care for a child, who was aged 12 when his parents were arrested and held at a police station for several hours and not to explain the situation to him, reached the threshold required by Article 3 ECHR and constituted degrading treatment. 195 The prohibition of the imposition of capital punishment for crimes committed by 32 persons before the age of 18 years has its origin in Article 68 para. 4 of Geneva Convention IV, the scope of which is limited to occupied territories during or after armed conflicts. An extension of the prohibition ratione materiae et loci was effected through Article 77 para. 5 of the First Additional Protocol to the Geneva Conventions and Article 6 para. 4 of the Second Additional Protocol to the Geneva Conventions. For periods of peace, the prohibition of the death penalty for minors was first introduced by Article 6 para. 5 ICCPR and later in Article 4 para. 5 ACHR and Article 5 para. 3 ACRWC. Principle 3.9 of the 2007 Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups also prohibits both the death penalty and life imprisonment without the possibility of discharge for people under the age of 18 years.196 On the other hand, Article 7 of the (non-binding) Arab Human Rights Charter merely contains a prohibition on the use of the death penalty against persons under 18 years of age and does not refer to the age of the person when the offence was committed. Such a ban is virtually worthless in practice, since it regularly means that the child is held in custody until he or she reaches the age of majority, upon which the death penalty is applicable. In Europe, conversely, there is now an absolute ban on the death penalty. Both Additional Protocols No. 6 and No. 13 to the ECHR as well as Article 2 para. 2 of the EU Charter of Fundamental Rights prohibit the imposition and use of the death penalty, regardless of the situation and age of the person concerned.197

2. Rights of Children Deprived of Liberty There is no human rights convention, according to which detention as such consti- 33 tutes a violation of human rights.198 Rather, their aim is to take the deprivation of liberty under a human rights perspective, especially when it comes to the detention of minors.199 The rights of persons deprived of liberty are guaranteed at the universal level primarily under Article 9, Article 10 and Article 14 ICCPR, which in fact go beyond the guarantees of Article 37 CRC, but which do not address the specific needs of children. However, the Human Rights Committee has recently called for the adoption of a higher

See ECtHR, Judgement of 1 June 2010, No. 22978/05, para. 108 – Gäfgen v. Germany. See U Kilkelly/S Casale, Children’s Rights and the European Committee for the Prevention of Torture, 2012. 195 ECtHR, Judgment of 6 December 2016, No. 52924/09, para. 65 – Ioan Pop and Others v. Romania. See also ECtHR, Judgment of 1 February 2018, No.45285/12, para. 58 – Hadzhieva v. Bulgaria. 196 See L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), 881, at 888. 197 See S Schmahl, Die Abschaffung der Todesstrafe in Europa, DTIEV-Online Nr. 2/2011, p. 1 et seq. 198 See, e.g., ECtHR, Judgment of 30 April 2013, No. 49872/11, para. 198 – Tymoshenko v. Ukraine. 199 See ECtHR, Judgment of 6 June 2013, No. 2283/12 – Mohammed v. Austria; Judgment of 3 July 2014, No. 71932/12 – Mohammadi v. Austria. 193

194

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degree of protection for children in the context of Article 9 ICCPR.200 This position has been made with explicit regard to Article 37 CRC.201 34 At the regional level, various rights of persons deprived of liberty are guaranteed through Article 5 ECHR, Article 5 and Article 7 ACHR, Article 5 and Article 6 ACHPR, Article 17 para. 2 lit. a ACRWC, and Article 6 of the EU Charter of Fundamental Rights. Furthermore, a number of recommendations of the CoE Committee of Ministers explicitly deal with the deprivation of liberty of children and state that it may only be considered as a last resort.202 The case-law of the ECtHR also emphasises that young persons accused of having committed an offence have the right to an experienced defender and may remain in pre-trial detention only for a short period of time.203 Restrictions on the personal liberty of juveniles shall be imposed only after careful consideration and shall be limited to the possible minimum.204 If juveniles are to be imprisoned, they must be housed in separate facilities, i.e. institutions, which are specialising in children and are separate from those housing adults.205 Appeals must be guaranteed and processed with special expedience.206 35 With regard to Article 37 lit. b CRC, the Return Directive 2008/115/EC is particularly important.207 The Directive contains not only provisions relating to the return of thirdcountry nationals illegally resident in the Member States, but also provides norms regulating detention pending deportation.208 For instance, pursuant to Article 4 of the Directive, detention pending deportation may be ordered for a period of up to 18 months. The possibility of the imprisonment of unaccompanied minors is not excluded, but it is imperative that the child’s well-being is duly taken into account.209 In addition, detention is only permitted when less intensive compulsory measures do not fulfil the same or analogous purpose. Examples of less restrictive measures include, for instance, reporting obligations, deposits or other guarantees pursuant to Article 15 para. 1 of the Directive. Regardless of the fact that imprisonment as such in principle does not violate Article 3

200 Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of Person), CCPR/C/GC/35, 2014, para. 62. 201 T Liefaard, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 321, at 326. 202 See, e.g., Committee of Ministers Recommendations Rec.1 R87/20 (1987), and Rec. 2003/20 (2003), para. 16. 203 ECtHR, Judgment of 17 October 2006, No. 52067/99, paras 69 et seq. – Okkali v. Turkey; Judgment of 10 January 2006, No. 21768/02, paras 32 et seq. – Selcuk v. Turkey; Judgment of 6 May 2008, No. 20817/04, paras 29 et seq. – Nart v. Turkey; Judgment of 20 January 2009, No. 70337/01, para. 108 – Güvec v. Turkey. 204 ECtHR, Judgment of 16 December 1999, No. 24888/94, paras 98 et seq. – V v. The United Kingdom. For more detail see J Arnold/M Rehmet, Der Schutz junger Menschen durch den Europäischen Gerichtshof für Menschenrechte, Recht der Jugend und des Bildungswesens 2018, p. 401, at 407 et seq. 205 ECtHR, Judgment of 29 February 1988, No. 9106/80, paras 50 et seq. – Bouamar v. Belgium; Judgment of 16 May 2002, No. 39474/98, paras 82 et seq. – D.G. v. Ireland, Judgment of 20 January 2009, No. 70337/01, paras 94 et seq. – Güvec v. Turkey; Judgment of 9 October 2012, No. 1413/07, para. 61 – Coselav v. Turkey. 206 ECtHR, Judgment of 16 December 1999, No. 24888/94, paras 118 et seq. – V v. The United Kingdom; Judgment of 16 May 2002, Nr. 39474/98, para. 63 – D.G. v. Ireland. 207 OJ EU 2008, No. L 348, p. 98. 208 See H Cremer, Abschiebungshaft und Menschenrechte: Zur Dauer der Haft und zur Inhaftierung von unbegleiteten Minderjährigen in Deutschland, 2011, p. 3 et seq.; B Huber, Das 2. Richtlinienumsetzungsgesetz und weitere Änderungen im Ausländerrecht, Neue Zeitschrift für Verwaltungsrecht 2012, p. 385, at 388 et seq. 209 See Article 17 of the Directive 2008/115/EC. Further see → Article 37 mns. 9 et seq.

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ECHR,210 the ECtHR emphasises that the detention of minors with the purpose of deportation should be avoided completely.211

Article 38 [International Humanitarian Law] 1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child. 2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. 3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest. 4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Observation of the Rules of International Humanitarian Law (Article 38 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Rules of International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Application in Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Obligations of States Parties to Respect and Ensure the Rules of International Humanitarian Law Applicable to Them . . . . . . . . . . . . . . . . . . . . 4. Rules of International Humanitarian Law Relevant to Children . . . . . . . . . . 5. Undertaking to Respect and to Ensure Respect for the Rules of International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Minimum Age for the Direct Participation in Hostilities (Article 38 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Feasible Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Minimum Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Direct Participation in Hostilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Minimum Age and the Process for the Recruiting to Armed Forces (Article 38 para. 3 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Article 38 para. 3, sentence 1 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Article 38 para. 3, sentence 2 CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Protection of Children as Part of the Civilian Population (Article 38 para. 4 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Embedding of Article 38 CRC into the System of International Human Rights Protection and of International Humanitarian Law . . . . . . . . . . . . . . . . . . .

1 7 7 9 12 14 17 22 22 26 28 32 33 38 43 49

I. Generalities According to the United Nations Children’s Fund (UNICEF), globally approximately 1 250 million children lived in situations of armed conflict in 2016, and more than 30 mil-

See ECtHR, Judgment of 30 April 2013, No. 49872/11, paras 197 et seq. – Tymoshenko v. Ukraine. See ECtHR, Judgment of 24 October 2013, No. 71825/11, paras 76 et seq. – Houssein v. Greece. See also → Article 22 mn. 30. 210

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lion have been driven from their homes by armed conflict in 2019.1 Between 1998 and 2008, approximately 2 million children have been killed by the direct effects of armed conflicts, and a further 6 million children have sustained long-term damage as a result of bodily harm.2 A vast amount of children had been forced to leave their homes and flee, in many cases without their parents.3 In addition, in numerous countries, children are not only affected by the effects of armed conflict as civilians. They are also often used as combatants or child soldiers; this is particularly true for boys, but increasingly also for girls.4 The number of active child soldiers today is estimated to be around 250,000 to 300,000 worldwide.5 According to the UN, around 12,000 child soldiers were deployed in South Sudan alone between 2013 and 2015.6 In total, children are not only recruited into the regular armed forces, but often also into non-State paramilitary, rebel or terrorist groups. In some cases, they are directly involved in combat activities, in part they are employed as spies, cooks, porters, mine searchers, messengers, or for sexual purposes.7 With regard to Syria, the CRC Committee is gravely concerned about credible and corroborated information on the innumerable grave violations against children committed by all parties to the conflict since 2011. In particular, the CRC Committee deplores the recruitment and use of children in hostilities, including children under the age of 15, some as young as four years old, and children of foreign origin, by armed groups and, on some occasions, by the armed forces of the State and affiliated militias. 8 Children are mainly recruited as soldiers because they are easy to manipulate, do not question orders, and if their will and personality are broken down through violence, threats or drugs,9 they can be turned into fearless soldiers, who are easily made to “shoot at everything that moves”.10 All these statistics reveal the impact that war and armed conflicts generally have on children. They profoundly disrupt their lives, if not putting them directly at risk as civilians or combatants.11 Yet, as armed conflicts are becoming increasingly diversified, the same is true for the kinds of child soldiers. A new addition is the type of a modern child terrorist, i.e. an underage foreign terrorist fighter who typically stems from the Western States and is recruited by terrorist organisations such as the Islamic State of Iraq and Syria (ISIS) for the purpose of the perpetration, planning or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.12 These child terrorists 1 UNICEF, Uprooted: The Growing Crisis for Refugees and Migrant Children, 2016, p. 6, 18; Humanitarian Action for Children, 2020, p. 2. 2 See Council of the EU, Update of the EU Guidelines on Children and Armed Conflict of 5 June 2008, Doc. 10019, p. 1. 3 C Kreuzer, in: J Hasse/E Müller/P Schneider (eds.), Humanitäres Völkerrecht, 2001, p. 304-324. 4 R Harvey, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 1, at 2; see also UNICEF, Humanitarian Action Report 2010, p. 3. 5 See UN General Assembly, Report of the Special Representative of the Secretary-General for Children and Armed Conflict, A/60/335, of 7 September 2005 , para. 5. 6 See E Neilson, Children, Not Soldiers, BOFAXE No. 471E, of 17 April 2015. 7 See Principle 2.1 of the 2007 Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups. Further see A Wendel, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 67; R Harvey, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 1, at 2. 8 CRC Committee, Concluding Observations: Syrian Arab Republic, CRC/C/SYR/CO/5, 2019, para. 49. 9 See G Schumacher, Kindersoldaten in der Dritten Welt, 2005, p. 11-14. 10 M Cottier, in: O Triffterer/K Ambos (ed.), The Rome Statute of the International Criminal Court. A Commentary, 3rd edn. 2016, Article 8 mn. 797 et seq. 11 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 516. 12 See the definition of the UN Security Council, S/RES/2178, 24 September 2014, p. 2. Further see S Bradley, What if Goliath Killed David? The Coalition to Counter ISIS and the Status and Responsibility

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differ from classic child soldiers in contextual motivation and also in their responsibility for the acts they have committed.13 They should not only be seen as victims, which they undoubtedly are, but also as perpetrators.14 Article 38 CRC seeks to react to this particular situation of children by establishing 2 rules for dealing with children in armed conflict. This endeavour is a peculiarity in human rights law. Article 38 CRC establishes rules which escape the traditional system of international human rights protection, to which the CRC belongs, in favour of establishing close links to international humanitarian law. Through Article 38 CRC, the Convention combines peacetime international law and international humanitarian law, two areas which are normally treated as independent, however complementary legal orders. The CRC is the only human rights treaty which offers a comprehensive and holistic protection instrument in favour of children.15 In doing so, Article 38 CRC applies not only to children who have the status of civilians but also to children associated with armed forces or armed groups. This is remarkable when one considers that even the four Geneva Conventions of 1949, which are the main sources of international humanitarian law, do not dedicate a single provision to the problem of the direct participation of children in armed conflict.16 This inadequacy has only been resolved when the First Additional Protocol to the Geneva Conventions was adopted in 1977.17 Article 77 para. 2 of the First Additional Protocol asserts that States Parties shall take all feasible measures so that children under the age of 15 years do not take a direct part in hostilities. It also provides that States Parties shall refrain from recruiting children under the age of 15 years into their armed forces, thus providing a minimal protection to children in international armed conflicts. However, there is criticism also against the version of Article 77 para. 2 of the First Additional Protocol to the Geneva Conventions, since it prohibits only direct participation in hostilities while the similarly dangerous indirect participation of children continues to be permitted.18 Only the Second Additional Protocol to the Geneva Conventions has solved this dilemma for non-international armed conflicts. According to Article 4 para. 3 lit. c of this Protocol, States Parties shall not recruit children under the age of 15 years or allow them to take part in hostilities. Both States and non-State armed forces and groups are absolutely prohibited from recruiting or using children in hostilities in non-international armed conflicts.19 Despite the close connection between peacetime international law and humanitarian 3 law in Article 38 CRC, the Convention does not encompass a derogation clause similar of ISIS’ Child Soldiers, American University International Law Review 33 (2018), p. 571 et seq.; J Salomé, Children Accountability and Justice: Advancing Restorative Justice for Child Solders and Child Pirates, Allons-y 1 (2016), p. 33, at 46 et seq.; L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881, at 890 et seq. 13 MA Drumbl, Reimagining Child Soldiers in International Law and Policy, 2012, p. 62 et seq.; N Quénivet, Does and Should International Law Prohibit the Prosecution of Children for War Crimes? European Journal of International Law 28 (2017), p. 433, at 452, 454 et seq. 14 For more detail see → Article 39 mns. 3 et seq; → Article 40 mn. 5. 15 See UN General Assembly, Report on the Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children (G Machel), A/51/306, of 26 August 1996, para. 228. Further see F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 3. 16 R Harvey, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 1, at 5. 17 S Liebig, in: S von Schorlemer (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 159-186. 18 S von Schorlemer, Kindersoldaten und bewaffneter Konflikt, 2009, p. 49 et seq.; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 815. 19 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 524.

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to those contained in other human rights conventions such as Article 4 ICCPR, Article 15 ECHR and Article 27 ACHR.20 This is rather astonishing in view of the holistic human rights protection that the CRC strives to grant to children. However, it is certainly to be assumed that there is a vast range of children’s rights, which must not be derogated from even during armed conflict or in any other situation of emergency. These non-derogable rights comprise fundamental rights such as the right to life and survival under Article 6 paras 1 and 2 CRC and the protection from sexual exploitation according to Article 34 CRC.21 Furthermore, one has to bear in mind that pre-existing risks for children are regularly exacerbated during armed conflicts. Because of children’s physical and psychological vulnerability, they are comparatively more affected by armed conflicts than adults.22 For instance, when civilian populations suffer from hunger or lack of access to adequate health care, children often experience serious malnutrition, infectious diseases and even early death.23 In that regard, it is to underscore that during armed conflict, children continue to benefit from general human rights law that applies to all persons and from the particular rights afforded to them as children, notably by the CRC.24 The International Court of Justice (ICJ) has repeatedly stressed that the protections offered by human rights conventions do not cease in times of war, except by operation of the derogation clauses, or in cases where international humanitarian law is the applicable lex specialis, displacing international human rights law.25 Since the CRC recognises a comprehensive list of rights that apply to children and does not offer a general derogation clause, it is to be assumed that the rights granted to children in the CRC should, in principle, apply at all times, including in armed conflicts and emergency situations.26 This also means that the measures concerned should fully comply with the obligations of the CRC even in times of emergency.27 4 The rights contained in the CRC that may be of relevance for children in armed conflict can be grouped into four main categories.28 The first category encompasses the survival rights such as the children’s right to life (Article 6 CRC) and to an adequate nutrition and health care (Article 24 CRC). Secondly, the CRC spells out rights to particular protection, which are intended to safeguard children against all forms of violence, abuse, neglect and exploitation (Article 19, Articles 32-36 CRC). These two groups encompass cardinal human rights and are, without doubt, of utmost importance for children and may not be derogated from or softened up in armed conflicts. In contrast, the third group, which covers developments rights of the child, including, for 20 For more detail in regards to Article 4 ICCPR, see Human Rights Committee, General Comment No. 29: States of Emergency, ICCPR/C/21/Rev. 1/Add.11, 2001, p. 7. 21 See S von Schorlemer, Kindersoldaten und bewaffneter Konflikt, 2009, p. 140 et seq. 22 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 516. 23 UNICEF, Machel Study 10-year Strategic Review: Children and Conflict in a Changing World, 2009, p. 20. 24 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 517. 25 See ICJ, Advisory Opinion of 8 July 1996, Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 226-267, at paras 2-25; Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136-203, at para. 106; Judgment of 19 December 2005, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005, p. 168-283, at paras 205-221. 26 UN General Assembly, Report on the Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children (G Machel), A/51/306, of 26 August 1996, para. 227. See also J Kuper, International Law Concerning Child Civilians in Armed Conflict, 1997, p. 46. 27 O De Schutter, International Human Rights Law, 3rd edn. 2019, p. 646. 28 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 516.

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instance, the right to education (Article 28 CRC), the right to play and leisure time (Article 31 CRC) and access to information (Article 17 CRC) are particularly difficult to secure during armed conflict. The same applies to the fourth category, which covers the specific participation rights recognised for children in the Convention, such as the right to freedom of expression (Article 13 CRC) or the right to express their views freely in all matters affecting them (Article 12 CRC). Nevertheless, the CRC Committee constantly recalls that all guarantees enshrined in the Convention should be fundamentally respected even in armed conflicts. This includes the provision of essential care and assistance, access to food, health care and education, humanitarian assistance, relief, the prohibition of torture, abuse or neglect, the prohibition of the death penalty, protection in situations of deprivation of liberty, and the preservation of the child’s cultural environment.29 The CRC Committee also highlights the responsibilities of States Parties in situations of armed conflict to protect children against gender-based violence and harmful practices 30 as well as against the harmful impact of business activities.31 States Parties are called upon to ensure special protection for indigenous children32 and children affected by HIV/AIDS,33 provide opportunities for play and recreation,34 provide access to social services and human rights education, 35 and ensure children’s active role in peacebuilding and post-conflict resolution processes.36 In addition, there is heightened proximity between Article 38 CRC and Article 22 5 CRC which regulates the rights of children as refugees. An armed conflict often leads to enormous refugee flows. The disproportionate impact of armed conflict to children is especially marked for the 25 million children who were uprooted from their homes in 2016.37 They often experience distress in overcrowded camps and they become easily vulnerable to preventable infectious diseases.38 Against this backdrop, it is a logical consequence that the guarantees of Article 38 and Article 22 CRC have to be considered as being strongly interrelated and complementary to each other.39 Moreover, Article 38 CRC is inseparable from Article 39 CRC, which on account of its rehabilitation and recovery guarantees can be regarded as a continuation of the protective measures required by Article 38 CRC.40 Article 39 CRC concerns in particular the physical and psychological recovery as well as the social reintegration of child victims of armed

29 CRC Committee, Report on the second session, General Discussion on children in armed conflicts, CRC/C/10, 1992, p. 20, at para. 73. See also CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011, para. 26. 30 CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, paras 8, 18, 23; CRC Committee, General Comment No. 5, CRC/GC/2005/6, 2005, para. 48. 31 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, paras 2, 49 et seq. 32 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009, paras 1, 64 et seq. 33 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003, paras 30, 38. 34 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013, para. 53. 35 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001, paras 15 et seq.; General Comment No. 6, CRC/GC/2005/6, 2005, para. 60; General Comment No. 9, CRC/C/GC/9, 2007, paras 55, 78. 36 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 125 et seq.; General Comment No. 20, CRC/C/GC/20, 2016, paras 79 et seq. 37 UNICEF, Uprooted: The Growing Crisis for Refugees and Migrant Children, 2016, p. 1. 38 UNICEF, Machel Study 10-year Strategic Review: Children and Conflict in a Changing World, 2009, p. 20. 39 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 646. 40 See R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 13.

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conflicts.41 The CRC Committee has emphasised the need to consider a coherent plan for recovery and reintegration of children affected by armed conflict to be planned and implemented in a combined effort by UN bodies and NGOs.42 Read together, Articles 38, 39 and 22 CRC constitute an integrated system of the protection of children in armed conflict, which in some respects goes beyond the protections of international humanitarian law, but in other respects lies far behind them.43 6 Article 38 CRC’s twin axes, which on the one hand establish parameters regarding the ability of States to recruit or directly use children in hostilities, and on the other hand aim at protecting children who are otherwise affected by armed conflict by linking international human rights law with international humanitarian law, has been hailed as an innovation but has also elicited considerable disappointment.44 The failure to adopt the “straight-18 approach” has been the object of concerted efforts to augment its protective content.45 Several deficits of Article 38 CRC were to be remedied through the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflicts (OPAC), which the CRC Committee started drafting in 1992. Beginning with a theme day dedicated specifically to a discussion on children in armed conflict,46 the first draft was completed in 1993.47 The reason for the elaboration of the Protocol was the dissatisfaction of the CRC Committee, several NGOs and many States with the comparatively low standards laid down in Article 38 CRC, in particular with regard to the minimum age of 15 years for direct participation in hostilities as stipulated in Article 38 para. 2 CRC.48 Time and again, it was emphasised that the low minimum age in Article 38 para. 2 CRC conflicts with the age limit in Article 1 CRC and with the spirit of the Convention and that a substantive supplement by a protocol was necessary.49 However, due to lengthy debates,50 the adoption of OPAC took until 25 May 2000. It entered into force on 12 February 2002.51 The most important substantive change made by OPAC is the raising of the minimum age in the area of direct participation in hostilities to 18 years (Article 1 OPAC) as well as the increase of the minimum age for compulsory 41 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 518. 42 CRC Committee, Report on the second session, General Discussion on children in armed conflicts, CRC/C/10, 1992, p. 20, at para. 74. 43 See → Article 38 mns. 22 et seq. 44 See, e.g., R Brett, Child Soldiers: Law, Politics, and Practice, International Journal of Children’s Rights 4 (1996), p. 115, at 116 et seq.; G van Bueren, The International Law on the Rights of the Child 1995, p. 335 et seq. 45 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1504. 46 CRC Committee, Report on the second session, General Discussion on children in armed conflicts, CRC/C/10, 1992, p. 20, at paras 61 et seq. 47 CRC Committee, Report on the third session, Draft Optional Protocol, CRC/C/16, 1993, Annex VII, p. 59 et seq. See also → Introduction mn. 5. 48 See CRC Committee, Report on the second session, General Discussion on children in armed conflicts, CRC/C/10, 1992, p. 20, at para. 75. See also H-P Gasser/N Melzer, Humanitäres Völkerrecht – Eine Einführung, 2nd edn. 2012, p. 129 et seq.; D Helle, Optional Protocol on the Involvement of Children in Armed Conflicts to the Convention on the Rights of the Child, International Review of the Red Cross 2000, p. 797-809. 49 Cf. JA Gathia/SV Gathia, Children’s Rights and Wellbeing in India: Law, Policy and Practice, 2015, p. 796; K Hanson, International Children’s Rights and Armed Conflict, Human Rights and International Legal Discourse 5 (2011), p. 40, at 43, both with further references. 50 See ECOSOC Working Group, Note by the Secretariat, E/CN.4/1994/91, 1993, Annex, p. 2 et seq.; Report of the Working Group, E/CN.4/1995/96, 1995, para. 22; Report of the Working Group, E/CN.4/1998/102, 1998, Annex, p. 22 et seq.; Report of the Working Group, E/CN.4/1999/73, 1999, paras 5 et seq.; Report of the Working Group, E/CN.4/2000/74, 2000, paras 20 et seq., 90 et seq. 51 See UN General Assembly, Resolution 54/263, A/RES/54/263, 25 May 2000; 2173 UNTS 222.

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recruitment in the armed forces from 15 to 18 years (Article 2 OPAC). 52 However, outside of these areas, the age limit of 18 years is subject to numerous exceptions. These relate primarily to voluntary enlistment in the armed forces and to indirect participation in hostilities. In these areas, a detailed and gradual system of regulation is applied, which, if the requirements are met, also allows adolescents between the age of 16 and 18 years to participate voluntarily in armed conflict (Article 3 OPAC).53 The compulsory “straight-18 approach”, which the CRC Committee recurrently purports,54 could not be implemented in OPAC.55

II. Observation of the Rules of International Humanitarian Law (Article 38 para. 1 CRC) 1. Rules of International Humanitarian Law Article 38 para. 1 CRC integrates international humanitarian law into the Convention 7 but makes no statement as to how the concept of the rules of international humanitarian law is to be understood within the framework of the CRC.56 The jus in bello (law of war) includes various conventions on the regulation of armed conflict.57 The two most important instruments are the Hague and the Geneva Conventions. While the provisions of the Hague Conventions are primarily concerned with the regulation and prohibition of certain methods and means of warfare, the Geneva Conventions, consisting of the four Geneva Conventions of 1949, mainly provide for the protection of the individual groups (the wounded and sick, the shipwrecked, the prisoners of war, and civilians) in armed conflicts.58 Only the two Additional Protocols to the Geneva Conventions of 1977 brought both legal areas together.59 The International Committee of the Red Cross (ICRC) and various voices in the literature are now generally in favour of a broad understanding whereby both the Geneva and the Hague guarantees fall within the concept of international humanitarian law.60 However, it is questionable whether this extensive definition of international humani- 8 tarian law also applies to the concept of international humanitarian law as mentioned in Article 38 para. 1 CRC. The CRC Committee often speaks only generally and vaguely of “breaches of guarantees of international humanitarian law”.61 It occasionally makes For more detail see → Article 38 mns. 22 et seq. For more detail see MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1666, at 1683 et seq. K Hanson, International Children’s Rights and Armed Conflict, Human Rights and International Legal Discourse 5 (2011), p. 40, at 52 et seq. 54 See, e.g., CRC Committee, Concluding Observations: Bhutan, CRC/C/15/Add.157, 2001, paras 54, 55, Cameroon, CRC/C/15/Add. 164, 2001, paras 23-24 c; Italy, CRC/C/ITA/CO/3-4, 2011, para. 72; Mozambique, CRC/C7MOZ/CO/2, 2009, para. 77; Guatemala, CRC/C/GTM/CO/3-4, 2010, para. 85; United States of America, CRC/C/OPAC/USA/CO/3-4, 2017, para. 9. 55 See A Köpcke-Duttler, Kindersoldaten, Dialogische Erziehung 2002, p. 9, at 18 et seq. 56 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1509. 57 See in detail → Article 38 mn. 49. 58 S Schmahl, in: J Hasse/E Müller/P Schneider (eds.), Humanitäres Völkerrecht, 2001, p. 41, at 56. 59 For more detail see G Abi-Saab, in: C Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet, 1984, p. 265-280. 60 See, e.g., A Eide, in: C. Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet, 1984, p. 675-698; S Schmahl, in: J Hasse/E Müller/P Schneider (eds.), Humanitäres Völkerrecht, 2001, p. 41, at 57 et seq., A von Arnauld, Völkerrecht, 4th edn. 2019, mn. 1165, all with further references. 61 CRC Committee, Concluding Observations: Democratic Republic of Congo, CRC/C/15/Add.153, 2001, para. 6; Russian Federation, CRC/C/15/Add.110, 1999, para. 56. 52

53

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reference to the Geneva Convention IV to underscore the importance of distinguishing between civilians and combatants, without going into detail.62 In some cases, a certain inconsistency between peacetime international law and international humanitarian law takes place when the CRC Committee classifies an infringement of humanitarian law exclusively as a violation of a human rights guarantee.63 It is understandable that the CRC Committee, as the monitoring organ of a human rights treaty dedicated to children’s rights, might be hesitant to interpret international humanitarian law through the lenses of Article 38 CRC.64 However, it must be assured that the main content of the Geneva Conventions, including its Additional Protocols, is covered by Article 38 CRC.65 Further international instruments on the laws of armed conflict must also be duly taken into account.66 The same is true for customary international law, general principles of international law and the peremptory norms of international law (jus cogens).67

2. Application in Armed Conflict Article 38 para. 1 CRC speaks of the “rules of international humanitarian law applicable [...] in armed conflicts” and thus takes account of the fact that the applicability of international humanitarian law is regarded as an exception. Originally, the jus in bello was applicable when there was an official state of war, which could only be achieved by a formal declaration of war by at least one of the parties to the conflict.68 However, the concept of “armed conflict” as used in the four Geneva Conventions instead of the term “war” has been expanded considerably. Irrespective of a formal declaration of war (which would today violate the international prohibition of the threat or use of force), international humanitarian law is now applicable to every conflict that factually and objectively crosses the threshold into armed conflict, independent of the subjective views of the parties to the armed conflict.69 Article 38 para. 1 CRC uses the concept of “armed conflict” and is thus in harmony with today’s broad understanding of the applicability of international humanitarian law.70 10 The four Geneva Conventions, just as Article 38 para. 1 CRC, do not contain a definition of the term “armed conflict”. Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ) however assume that an armed conflict exists when States use armed violence or when a state of protracted armed violence is present between State forces and organised armed groups 9

62 See, e.g., CRC Committee, Concluding Observations: Israel, CRC/C/15/Add.195, 2002, para. 51; CRC/C/ISR/CO/2-4, 2013, para. 26; Ethiopia, CRC/C/ETH/CO/3, 2006, para. 80; Burundi, CRC/C/15/ Add.133, 2000, para. 72. 63 See, e.g., CRC Committee, Concluding Observations: Democratic Republic of Congo, CRC/C/15/ Add.153, 2001, para. 64. 64 In a similar vein, see ECtHR, Judgment of 24 February 2005, No. 57950/00, paras 180 et seq. – Isayeva v. Russia. See also D Kaye, International Decisions: The Chechnya Cases Before the European Court of Human Rights, American Journal of International Law 99 (2005), p. 873 et seq. 65 E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 14. 66 See → Article 38 mn. 49. 67 For a fuller account see, e.g., J-M Henckaerts/L Doswald-Beck, Study on Customary International Humanitarian Law, Vol. I, Rules of the ICRC, 4th edn. 2009. 68 JK Kleffner, in: D Fleck (ed.), The Handbook of International Humanitarian Law, 3 rd edn. 2013, p. 43, at 46-47. 69 JK Kleffner, in: D Fleck (ed.), The Handbook of International Humanitarian Law, 3 rd edn. 2013, p. 43, at 44-45. 70 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 25.

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or between armed groups within a State territory.71 Low-intensity conflicts do not fall within the scope of international humanitarian law.72 This can lead to gaps in legal protection for affected individuals if a low-intensity conflict justifies the application of emergency clauses (e.g., Article 4 ICCPR) which restrict the applicability of human rights law, although international humanitarian law is not (yet) applicable, because the violence does not exceed the threshold for an armed conflict.73 It is presumably for this reason that the CRC Committee reduces the threshold to the applicability of international humanitarian law by requiring the States Parties to protect children in armed conflicts as well as in other conflict situations.74 International humanitarian law also distinguishes between international and non-in- 11 ternational armed conflicts. This differentiation leads to different obligations and legal consequences. Nevertheless, Article 38 para. 1 CRC is applicable to any kind of armed conflict;75 even the existence of de facto hostilities within a State territory is sufficient. 76 This broad understanding is necessary to counter increasingly complex problems in the categorisation of armed conflicts, especially in regards to asymmetric threats, and to provide a complete protection for children, independent of nuances and interpretations concentrated too strongly on the principle of sovereignty.

3. Obligations of States Parties to Respect and Ensure the Rules of International Humanitarian Law Applicable to Them The rules of international humanitarian law binding under Article 38 CRC are prin- 12 cipally those to which the States Parties have subjected themselves under international treaties or which find application on the basis of customary law.77 Accordingly, different obligations of the States Parties can arise on the basis of Article 38 para. 1 CRC. In that regard, the wording of the norm is clear by using the phrase “applicable to them”. The original Polish draft did not contain this phrase.78 The addition was made to assuage concern about ambiguity of the obligations and clarify that States are not bound by the provisions of international humanitarian law to which they were not a party, unless those provisions that constitute customary law.79 Thus, the CRC Committee’s recommendation to generally protect children from the effects of armed conflict or other strife,80 is too expansive and in contradiction to the clear wording of Article 38 para. 1 CRC.81 71 See ICJ, Judgment of 27 June 1985, ICJ Reports 1986, p. 14, para. 195 – Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits; ICTY Appeals Chamber, Decision of 2 October 1995, No. IT-94-1-AR72, para. 70 – Prosecutor v. Tadic. 72 International Law Association, Committee on the Use of Force, Final Report on the Meaning of Armed Conflict in International Law, 2010, p. 2, 16-17. Different assessment by JK Kleffner, in: D Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edn. 2013, p. 35, at 47. 73 T Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, American Journal of International Law 77 (1983), p. 589, at 603 et seq. 74 CRC Committee, Concluding Observations: Central African Republic, CRC/C/15/Add.138, 2000, para. 83. 75 I Weiß, Der völkerrechtliche Schutz von Kindern in bewaffneten Konflikten, 1991, p. 55. 76 S Schmahl, in: J Hasse/E Müller/P Schneider (eds.), Humanitäres Völkerrecht, 2001, p. 41, at 58. 77 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 35. 78 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 780. 79 OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 781-782. 80 CRC Committee, Concluding Observations: Central African Republic, CRC/C/15/Add.138, 2000, paras 82-83. 81 Similar assessment by MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1519.

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To be observed, however, is the favourability clause of Article 41 CRC. The CRC Committee recalls that the Convention, under its Article 41 CRC, invites States Parties to always apply the norms which are more conducive to the realisation of the rights of the child, contained either in applicable international law or in national legislation.82 Despite the different individual obligations of the States, the large number of existing treaties regarding international humanitarian law makes it possible to achieve a relatively homogenous protection under Article 38 para. 1 CRC.83 Article 38 para. 1 CRC also requires the States Parties to inform and train soldiers in international humanitarian law with specific reference to the needs of children in war.84

4. Rules of International Humanitarian Law Relevant to Children The restrictive wording of the clause “which are relevant to the child” set out in Article 38 para. 1 CRC does not refer semantically to “armed conflicts”, but undoubtedly to the rules of international humanitarian law. A different understanding would not make sense, since an (international or non-international) armed conflict which is not relevant to children does simply not exist.85 15 It is unclear how the concept of the child in Article 38 para. 1 CRC should be understood. One possible interpretation leads to international humanitarian law, i.e. its core rules laid down in the four Geneva Conventions. These conventions contain numerous provisions relating specifically to children.86 However, the authors of the Geneva Conventions have avoided defining a uniform age-range or at least a precise maximum age for childhood so that the Geneva Conventions contain different definitions of what constitutes a child. For example, the term “child” can refer to newborns, toddlers, children under seven years, children under 12, children under 15, and children between 15 and 18 years of age.87 In contrast, Article 1 CRC contains a separate definition of the term “child”, which has a concrete upper age limit (“upon reaching 18 years of age”) and is not subject to the grading system of international humanitarian law. Furthermore, different to international humanitarian law, which at least indirectly protects unborn life in Article 14 of Geneva Convention IV, Article 1 CRC does not make any binding demands on the minimum age and does not protect the foetus.88 The international doctrine “pacta tertiis nec nocent nec prosunt” demands that the applicability of Article 38 CRC has to be determined by Article 1 CRC, provided that this norm is not superimposed by the special exceptions of the Convention laid down in Article 38 para. 2 and para. 3 CRC.89 16 Despite these explicit exceptions, Article 38 para. 1 CRC is applicable to all children affected by armed conflict, regardless of whether they fall into the civilian population or under a combatant status. The CRC Committee underlines this extensive approach in the way it refuses, in general, to differentiate between categories of children in 14

82 CRC Committee, Report on the second session, General Discussion on children in armed conflicts, CRC/C/10, 1992, p. 20, at para. 68. 83 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 33 et seq. 84 CRC Committee, Concluding Observations: Germany, CRC/C/OPAC/DEU/CO/1, 2008, para. 7. 85 See CRC Committee, Concluding Observations: El Salvador, CRC/C/15/Add.9, 1993, paras 11 and 14; Lebanon, CRC/C/15/Add.169, 2002, para. 50; United Kingdom, CRC/C/15/Add.288, 2002, para. 53. 86 I Weiß, Der völkerrechtliche Schutz von Kindern in bewaffneten Konflikten, 1991, p. 74; J Kuper, International Law Concerning Child Civilians in Armed Conflict, 1997, p. 80 et seq. 87 See, e.g., Articles 14, 23, 24 para. 3, Article 38 para. 5, Article 51 para. 2, Article 68 para. 4 of Geneva Convention IV. See also G Van Bueren, The International Law on the Rights of the Child, 1995, p. 333. 88 See → Article 1 mn. 17; as well as S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 26. 89 See → Article 38 mn. 3.

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armed conflicts.90 Its preference is obviously to generally urge States Parties to ratify or comply with the 1949 Geneva Conventions and their 1977 Additional Protocols.91 The CRC Committee also emphasises that child combatants deserve special protection as victims.92 This extensive understanding is on the one hand not particularly helpful to discern which rules of international humanitarian law are relevant to children.93 On the other hand, it is appropriate when considering the object and purpose of the Convention. Children are primarily treated as civilians in international humanitarian law, and as such they are particularly sensitive and vulnerable to armed conflicts.94 All in all, the rules of international humanitarian law which are relevant to children can be categorised into two main groups. In particular, Geneva Convention IV, Articles 77 and 78 of the First Additional Protocol and Article 4 para. 3 of the Second Additional Protocol to the Geneva Conventions offer specific protections to children beyond the general protection for all civilians.95 If children participate actively and directly in more specific conflict measures, in principle, they can become legitimate military targets. However, also in this case, they must benefit from the special protection under Article 38 CRC, read in conjunction with the relevant rules enshrined in the Geneva Conventions (e.g., Article 49 para. 1 of Geneva Convention III; Articles 51 para. 3, Article 77 of the First Additional Protocol). Finally, the CRC Committee expresses deep concern that children, both combatants and civilians, are killed and maimed by anti-personnel landmines and urges States Parties to take all necessary measures to end the use of landmines and carrying out mine clearance programmes and physical rehabilitation of child victims.96

5. Undertaking to Respect and to Ensure Respect for the Rules of International Humanitarian Law The wording of Article 38 para. 1 CRC according to which the States Parties “under- 17 take to respect and to ensure respect for rules of international humanitarian law” is similar to common Article 1 of the Four Geneva Conventions and of Article 1 para. 1 of the First Additional Protocol to the Geneva Conventions. They establish both (defensive) rights against unlawful State interference and positive obligations for the States Parties.97 Thus, the obligation to respect and ensure respect under Article 38 para. 1 CRC obliges States to refrain from unreasonable interference with a child’s rights, to ensure that non-State actors do not unlawfully interfere with a child’s right, and to adopt

90 See, e.g., CRC Committee, Concluding Observations: Sudan, CRC/C/15/Add.190, 2002, para. 35. See also A Sheppard, Child Soldiers: Is the Optional Protocol Evidence of an Emerging „Straight-18“ Consensus?, International Journal of Children’s Rights 8 (2000), p. 37, at 42. 91 CRC Committee, Concluding Observations: Turkey, CRC/C7TUR/CO/2-3, 2012, para. 69; Israel, CRC/C/ISR/CO/2-4, 2013, para. 26; Pakistan, CRC/C/PAK/CO/3-4, 2009, para. 87; Sudan, CRC/C/SDN/CO/3-4, 2010, para. 73. 92 See CRC Committee, Concluding Observations: Sierra Leone, CRC/C/15/Add.166, 2000, para. 87; United Kingdom, CRC/C/15/Add.188, 2002, para. 53; Myanmar, CRC/C/15/Add.237, 2004, para. 67. 93 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1519. 94 S von Schorlemer, Kindersoldaten und bewaffneter Konflikt, 2009, p. 41. 95 For a detailed analysis of the relevant norms see MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1522-1529. 96 CRC Committee, Concluding Observations: Myanmar, CRC/C/MMR/CO/3-4, 2012, paras 83 et seq.; Chad, CRC/C/TCD/CO/2, 2009, paras 71 et seq.; Colombia, CRC/C/COL/CO/3, 2006, paras 80 et seq.; Lebanon, CRC/C/LBN/CO/3, 2006, para. 69. 97 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 68.

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measures to secure the full enjoyment of a child’s right.98 Importantly, these obligations extend beyond a State’s territory where the State exercises effective control. 99 18 The requirement that the States Parties must observe the rules of international humanitarian law to which they have bound themselves represents a self-evident fact which is already accounted for in the general law of treaties (“pacta sunt servanda”, Article 26 VCLT). The wording of Article 38 para. 1 CRC, however, can be explained historically. Originally – i.e. up until the four Geneva Conventions of 1949 – the jus in bello was based on the principle of reciprocity.100 Today, the understanding is fundamentally different, as can be seen in Article 60 para. 5 VCLT. The duty to respect international humanitarian law arises even if a State’s enemy fails to respect this same law. Reciprocity is not required.101 Therefore, the obligation set out in Article 38 para. 1 CRC to observe all applicable conventions and international customary law serves merely for the sake of clarification. 19 On the other hand, the wording “to ensure respect for” requires that States Parties also ensure the observance of the rules of international humanitarian law by third parties. This includes both the obligation to monitor the application of humanitarian law and not to leave this control to the armed forces alone, as well as the obligation to ensure the universal enforcement of the fundamental principles of international humanitarian law.102 This includes, in particular, the obligation to make regulations with regard to non-State actors which are not themselves bound by the CRC.103 These non-State actors include armed groups,104 rebel armies,105 paramilitary groups106 and terrorist organisations.107 Even in the case of de facto sovereignty of non-State actors, the State Party remains responsible for implementing its obligation under Article 38 para. 1 CRC.108 The CRC Committee proposes that non-State actors directly comply with Article 38 para. 1 CRC.109 However, this demand is not supported by the Convention text and is deemed to be ultra vires, because the CRC is a human rights treaty which does not directly bind non-State actors.110 20 It is also one of the positive obligations under Article 38 para. 1 CRC that States Parties have to adopt appropriate legal and factual measures for the application of humanitarian law in the time preceding an armed conflict, i.e. in peacetime. This includes 98 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1515. 99 ICJ, Advisory Opinion of 9 July 2004, ICJ Reports 2004, p. 136-203, para. 112 – Legal Consequences of the Construction of a Wall in the Occupied Palestinian territory. 100 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 48. 101 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1515. 102 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 330. 103 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 651. 104 CRC Committee, Concluding Observations: Myanmar, CRC/C/15/Add.237, 2004, para. 66; Rwanda, CRC/C/15/Add.234, 2004, para. 62. 105 CRC Committee, Concluding Observations: Comoros, CRC/C/15/Add.141, 2000, para. 45; Lebanon, CRC/C/15/Add.169, 2002, para. 50. See also M-J Fox, Child Soldiers and International Law: Patchwork Gains and Conceptual Debates, Human Rights Review 7 (2005), p. 27 (38 et seq.). 106 CRC Committee, Concluding Observations: Colombia, CRC/C/15/Add.137, 2000, paras 34, 54; Indonesia, CRC/C/15/Add.223, 2004, para. 71 d. 107 L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881 et seq. 108 CRC Committee, Concluding Observations: Sudan, CRC/C/15/Add.190, 2002, para. 6; Syrian Arab Republic, CRC/C/SYR/CO/5, 2019, paras 49 et seq. 109 CRC Committee, Concluding Observations: Israel, CRC/C/15/Add.195, 2002, para. 32. 110 See → Article 4 mn. 11.

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in particular the adoption of a legally binding rule on the minimum recruitment age.111 Furthermore, the States Parties are encouraged to take measures to disseminate knowledge of international humanitarian law. The CRC Committee suggests specific training on children’s rights as well as dissemination of information pertaining to international humanitarian law in general.112 Another aspect of the State’s positive duty to protect is the national enforcement of 21 criminal offences under international humanitarian law. According to the four Geneva Conventions, the States Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the rules of humanitarian law (see Articles 49, 50 of the Geneva Convention I; Articles 50, 51 of Geneva Convention II; Articles 129, 130 of Geneva Convention III; and Articles 146, 147 of Geneva Convention IV). In addition, States Parties have the obligation to ensure that other States observe the provisions of international humanitarian law. However, this duty may be in conflict with the prohibition of intervention.113 Therefore, the CRC Committee limits its application strictly to financial aspects and underlines that it is not an obligation of result, but rather an obligation of conduct.114

III. Minimum Age for the Direct Participation in Hostilities (Article 38 para. 2 CRC) 1. Feasible Measures Article 38 para. 2 CRC deals with the direct participation of children in hostilities. 22 States Parties shall take all feasible measures to ensure that persons who have not yet reached 15 years of age are not directly involved in hostilities. With the formulation “feasible measures” the provision uses a rather undefined wording which is hardly justiciable. Originally, the provision was to be designed in such a way that the States Parties would have to take all “necessary measures” to fulfil the obligation.115 However, this formulation was abandoned during the drafting process of the Convention because of the energetic resistance of the United States of America to avoid an unconditional obligation and to prevent the automatic exception of voluntary participation in the hostilities of persons who have not yet reached the age of 15 years.116 The decision to exchange the criterion “necessary” with the criterion “feasible” rela- 23 tivises the protective standard of Article 38 para. 2 CRC in substance. It is much easier for State Parties to declare a measure unfeasible than unnecessary. 117 Under Article 57 para. 2 lit. b (i) and (ii) of the First Additional Protocol to the Geneva Conventions, the 111 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 54. 112 See, e.g., CRC Committee, Concluding Observations: Iraq, CRC/C/15/Add.94, 1998, para. 14. 113 See Article 2, paras 1 and 7 of the UN Charter. 114 CRC Committee, Concluding Observations: Comoros, CRC/C/15/Add.141, 2000, para. 46; GuineaBissau, CRC/C/15/Add.177, 2002, para. 49 d. 115 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 512. 116 See C Pilloud/J Pictet, in: Y Sandoz/C Swinarski/B Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, p. 900, mn. 3184; F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 61. 117 M Happold, The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Yearbook of International Humanitarian Law 3 (2000), p. 226, at 228.

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term “feasibility” means the only measures that have to be taken which are “practically possible”. States Parties are afforded a large discretion.118 Thus, the restriction to “feasible measures” entails that the protection offered by Article 38 para. 2 CRC is significantly weaker than the standard under international humanitarian law.119 Article 4 para. 3 lit. c of the Second Additional Protocol to the Geneva Conventions contains a general prohibition on the participation of persons under the age of 15 years in the armed forces or in hostilities, and does not make this rule dependent on feasible measures.120 24 Also, Article 1 OPAC uses the restrictive wording “feasible measures” and thus falls behind international humanitarian law, in particular behind Article 4 para. 3 lit. c of the Second Additional Protocol to the Geneva Conventions.121 Some delegates during the drafting process of the Protocol preferred a categorical prohibition of children’s participation in hostilities. However, others preferred specifying the age of 18 years as a benchmark only and favoured flexibility by retaining the requirement that States Parties take all feasible measures.122 At least, Article 1 OPAC raises the minimum age for direct participation in hostilities to 18 years, which leads to a certain improvement in the legal situation, since according to both Article 77 para. 2 of the First Additional Protocol to the Geneva Conventions and Article 38 para. 2 CRC, the minimum age is still set at 15 years.123 The CRC Committee does its best to ensure States Parties’ compliance with Article 1 OPAC, despite the soft wording of “feasible measures” only. It requires States Parties to comply with the object and purpose of OPAC which includes criminalisation of the recruitment of children under 18 years by the armed forces.124 The CRC Committee also stresses the importance of compulsory, consistent and systematic verification of the age of individual recruits by armed forces to prevent the recruitment of children. 125 25 The rather weak obligation established in Article 38 para. 2 CRC extends to both the participation in the national armed forces of States Parties as well as to any other participation in guerrilla groups or paramilitary associations,126 regardless of how extensive their de facto control may be.127 States Parties remain responsible and accountable for

118 See M Happold, The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Yearbook of International Humanitarian Law 3 (2000), p. 226, at 236; S Liebig, in: S von Schorlemer (ed.), Die Vereinten Nationen und die Entwicklung der Rechte des Kindes, 2004, p. 159, at 166; I Weiß, Der völkerrechtliche Schutz von Kindern in bewaffneten Konflikten, 1991, p. 190. 119 G Palomo Suarez, Kindersoldaten und Völkerstrafrecht, 2009, p. 97. 120 See C Pilloud/J Pictet, in: Y Sandoz/C Swinarski/B Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, p. 901, mn. 3185; R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mns. 12, 25. See also → Article 38 mn. 24. 121 T Vandewiele, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, 2006, Optional Protocol I, p. 19. 122 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 519. 123 For more detail see R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mns. 5, 26. 124 CRC Committee, Concluding Observations: United States of America, CRC/C/OPAC/USA/CO/3-4, 2017, para. 27; Malawi, CRC/C/OPAC/MWI/CO/1, 2017, para. 19; Guinea, CRC/C/OPAC/GIN/CO/1, 2017, para. 22. 125 CRC Committee, Concluding Observations, Malawi, CRC/C/OPAC/MWI/CO/1, 2017, para. 15; Guinea, CRC/C/OPAC/GIN/CO/1, 2017, para. 18. 126 See CRC Committee, Concluding Observations: Colombia, CRC CRC/C/15/Add.137, 2000, para. 54; Democratic Republic of Congo, CRC/C/15/Add.153, 2001, para. 64. 127 See CRC Committee, Concluding Observations: Sudan, CRC/C/15/Add.190, 2002, para. 6; Syrian Arab Republic, CRC/C/SYR/CO/5, 2019, paras 49 et seq.

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the actions of non-State actors.128 Article 4 para. 1 OPAC is more rigid in stating that armed groups should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. In addition, Article 4 para. 2 OPAC requires States Parties to take all feasible measures to criminalise such practices.129 It was recognised during the drafting of OPAC that since non-State armed groups could not be a party to the Protocol, a need arose to ensure that States were obliged to regulate their practices. 130 Therefore, the CRC Committee insists on the obligation of States Parties to prosecute and punish members of non-State armed groups on the use and recruitment of children. 131 The CRC Committee also requires that the States Parties provide information on the measures which they have taken pursuant to Article 38 para. 2 CRC. This applies in particular to legislative, administrative and educational measures,132 but also to strategies that tackle the problem of increased recruitment of children of particularly vulnerable groups into armed groups.133

2. Minimum Age Notwithstanding the far-reaching viewpoints of the CRC Committee, according to 26 which persons under 18 years of age are generally to be protected from participation in the armed forces,134 the Convention text only requires a minimum age of 15 years. Article 38 para. 2 and para. 3 CRC are the only provisions in the CRC that deviate from the definition contained in Article 1 CRC to the detriment of the child.135 This is particularly worrying because this unfavourable deviation is made precisely in regard to the life-threatening situation of war. The background to this weakening of the protective standard is that there are a number of countries where children under the age of 18 years constitute a large part of the population. These States apparently were concerned that, by setting a minimum age of 18 years, the largest “pool” of potential soldiers would be excluded.136 In the course of the drafting, several States also argued that young people under the age of 18 years are often more resistant physically than older persons. 137 This argument, which is completely disadvantageous to the child’s well-being, is exac- 27 erbated in practice by the fact that the determination of age not infrequently causes problems since several States Parties fail to meet their obligations under Article 7 CRC to maintain an effective and efficient birth register for all newborns.138 It is therefore logical that the CRC Committee does not permit any age-determination which, to an exter-

128 CRC Committee, Concluding Observations: Burundi, CRC/C/15/Add.133, 2000, para. 71 et seq.; Democratic Republic of the Congo, CRC/C/15/Add.153, 2001, para. 64; Syrian Arab Republic, CRC/C/SYR/CO/5, 2019, para. 51. 129 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1536. 130 MA Drumbl/J Tobin, The Optional Protocol on Children and Armed Conflict, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1666, at 1691. 131 See CRC Committee, Concluding Observations: Colombia, CRC/C/OPAC/COL/CO/1, 2010, para. 27; Sudan, CRC/C/OPAC/SDN/CO/1, 2010, para. 24; Guinea, CRC/C/OPAC/GIN/CO/1, 2017, para. 22. 132 CRC Committee, General Guidelines for Periodic Reports, CRC/C/58, 1996, para. 124. 133 CRC Committee, Concluding Observations: Tajikistan, CRC/C/OPAC/TJK/CO/1, 2017, paras 13-15. 134 CRC Committee, Concluding Observations: Zambia, CRC/C/15/Add.206, 2003, para. 61. 135 I Weiß, Der völkerrechtliche Schutz von Kindern in bewaffneten Konflikten, 1991, p. 194; R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 12. 136 See R Harvey, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 1, at 6 et seq. 137 See G Van Bueren, The International Law on the Rights of the Child, 1995, p. 336. 138 See → Article 7 mns. 2 et seq.

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nal observer, is obviously too arbitrary and too undetermined.139 In addition, the CRC Committee calls upon the States Parties, where necessary, to promote the ratification and the implementation of OPAC, which stipulates in its Article 1 a minimum age of 18 years for direct participation in hostilities.140 Also, the African Committee of Experts on the Rights and Welfare of the Child shares this opinion. In the matter of Michelo Hunsungule et al. v. Uganda, the Committee recommended that the Government of Uganda should enact a provision making it a crime to recruit persons under the age of 18 years into the Ugandan People’s Defence Forces.141 Furthermore, it insisted that a national action plan should be developed and implemented regarding birth registration in order to ensure that conclusive proof of age is possible before a person may enter into the armed forces.

3. Direct Participation in Hostilities The term “hostilities” in the sense of Article 38 para. 2 CRC is to be understood as warfare, which has the object and purpose of causing interaction between military systems of opposing forces, including preliminary and post-war preparations.142 However, there is a certain margin of appreciation left to the States in regard to the classification of preliminary and post-war preparations, so that not every action automatically exceeds the required threshold of hostilities.143 29 A clear definition of the term “direct participation” is more difficult. The first Polish draft version of Article 38 para. 2 CRC did not include the word “direct”,144 and it is not clear from the drafting history why this alteration was finally accepted.145 The CRC Committee underlines that in a situation of emergency it is very difficult to draw the line between direct and indirect participation, without giving further criteria for drawing this line.146 Thus, recourse must be made to international standards. This means that it must be objectively determined whether participation is direct or indirect; subjective views are irrelevant.147 Article 38 CRC aims at protecting all children in armed conflicts and cannot be made dependent on subjective elements that may open the door to abuse.148 As a rule, the directness of the participation requires a direct causal link between the action to which the child is deployed and the damage sustained to the opponent at the place and time of the child’s deployment.149 In other words, the child 28

CRC Committee, Concluding Observations: Zambia, CRC/C/15/Add.206, 2003, para. 61. See, e.g., CRC Committee, Concluding Observations: United States of America, CRC/C/ OPAC/USA/CO/2, 2013, paras 9 et seq. 141 ACERWC, Decision of 15-19 April 2013, No. Com/001/2005, para. 81 – Michelo Hunsungule and Others v. Uganda. 142 J De Preux, in: Y Sandoz/C Swinarski/B Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, p. 516, mn. 1679. 143 See → Article 38 mn. 9. 144 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 780. 145 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 789-795. See also MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1538. 146 CRC Committee, Report on the Eleventh Session, CRC/C/50, 1996, para. 251. 147 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 59. 148 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 506. 149 J De Preux, in: Y Sandoz/C Swinarski/B Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, p. 516, mn. 1679. 139 140

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must him- or herself be used, engaged or employed immediately in combat situations.150 Against this background, for instance, the transport of arms and ammunition along the front line,151 the transmission of military information,152 as well as acts of sabotage do not constitute direct participation.153 However, it is clear that the latter-mentioned acts can be as burdensome and danger- 30 ous to the child as a direct participation in combat actions.154 The use of children for acts of sabotage increases the distrust of the opposition towards children generally, which, with regard to their safety, is not acceptable.155 Moreover, it should be borne in mind that Article 38 CRC is aimed at a comprehensive protection of children and the boundaries between direct and indirect participation in hostilities are usually fluid.156 Even though the final removal of the requirement of directness from Article 38 para. 2 CRC was not achieved during the drafting of the Convention,157 the rationale of the norm speaks for a generous interpretation, which also includes certain indirect actions. Thus, actions by which the opponent is put at a disadvantage are qualified as directly participatory if there is a certain temporal and geographical causality between the participation and the disadvantage for the opponent.158 This extensive interpretation of the phrase “do not take a direct part in hostilities” in Article 38 para. 2 CRC is supported by the fact that Article 4 para. 3 lit. c of the Second Additional Protocol to the Geneva Conventions, in regards to non-international armed conflict, prohibits the participation of children under the age of 15 years in all hostilities and does not distinguish between direct and indirect participation.159 Article 4 para. 3 lit. c of the Second Additional Protocol establishes an absolute prohibition, which is of great practical importance because most child soldiers today fight in non-international armed conflicts as part of non-regular armed forces or are employed in or engaged for terrorist organisations.160 According to the study of the ICRC on the current state of international humanitarian law, Article 4 para. 3 lit. c of the Second Additional Protocol to the Geneva Conventions reflects inter-

150 M Happold, The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Yearbook of International Humanitarian Law 3 (2000), p. 226, at 228. 151 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 334. Rather undecided: F Hampson, Legal Protection Afforded to Children under International Humanitarian Law: Report for the Study on the Impact of Armed Conflict on Children, 1996, Chapter 4.5.1. 152 C Pilloud/J Pictet, in: Y Sandoz/C Swinarski/B Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, p. 901, mn. 3187. 153 S-S Junod, in: Y Sandoz/C Swinarski/B Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, p. 1380, mn. 4557. 154 R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 14. 155 A Sheppard, Child Soldiers: Is the Optional Protocol Evidence of an Emerging „Straight-18“ Consensus?, International Journal of Children’s Rights 8 (2000), p. 37, at 51. 156 Commission on Human Rights, Report of the Working Group, E/CN.4/1995/96, 1995, para. 23. 157 See S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 509. 158 I Weiß, Der völkerrechtliche Schutz von Kindern in bewaffneten Konflikten, 1991, p. 187; G Palomo Suarez, Kindersoldaten und Völkerstrafrecht, 2009, p. 76 et seq. 159 S von Schorlemer, Kindersoldaten und bewaffneter Konflikt, 2009, p. 57; G Palomo Suarez, Kindersoldaten und Völkerstrafrecht, 2009, p. 85; R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 12. 160 See UN General Assembly, Report on the Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children (G Machel), A/51/306, of 26 August 1996, paras 34 et seq. As regards underage terrorist fighters see L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881, 901 et seq.

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national customary law.161 Against this background, it is plausible that the CRC Committee rates arms deliveries to States that are generally known to recruit and engage children in combat as extremely critical.162 31 There is no reason why the standard stipulated in Article 38 para. 2 CRC should remain below the achievements of the rules of international humanitarian law. The States Parties to the CRC are obligated under Article 38 para. 1 CRC to observe the binding rules of international humanitarian law applicable to them in armed conflicts. Thus, those States which have ratified both the CRC and the Second Additional Protocol to the Geneva Conventions remain in any case obligated to the more far-reaching protections of Article 4 para. 3 lit. c of the Protocol. This is all the more so, since the favourability clause in Article 41 CRC also provides for an extensive interpretation of Article 38 para. 2 CRC.163 In view of Article 41 CRC, the rules contained in Article 4 para. 3 lit. c of the Second Additional Protocol to the Geneva Conventions which are more favourable to children take precedence as leges speciales over Article 38 para. 2 CRC, in so far as they are ratified by the States concerned.164 The approach of the CRC Committee, which was expressed in a General Recommendation on Children in Armed Conflict,165 is therefore to be welcomed. Here, a minimum age of 18 years is required for all (direct and indirect) ways of participation in armed conflicts. Also, during other occasions, the CRC Committee has rightly stressed the necessity to protect children who are only indirectly involved in hostilities.166

IV. Minimum Age and the Process for the Recruiting to Armed Forces (Article 38 para. 3 CRC) 32

Article 38 para. 3 CRC contains various obligations to be observed by States Parties within the recruiting process which once again demonstrate the difficult compromise at the heart of the norm. Above all, it evidences the compromise between States wishing to maintain the prohibition on recruitment of children under 15 years and those wishing to extend that prohibition to all persons under 18.167

1. Article 38 para. 3, sentence 1 CRC 33

According to Article 38 para. 3, sentence 1 CRC, States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces. The norm imposes the obligation on States only for the conduct of their own militaries.168 Unlike Article 38 para. 2 CRC, Article 38 para. 3, sentence 1 CRC contains an absolute formulation which results in a directly applicable obligation on the part of the States. 161 See J-M Henckaerts/L Doswald-Beck, Study on Customary International Humanitarian Law, Vol. I, Rules of the ICRC, 4th edn. 2009, Rules 135, 136 and 137, p. 481 et seq. See also see G Wascherfort, International Law and Child Soldiers, 2015, p. 98-102. 162 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 76 d, 77 c. 163 S von Schorlemer, Kindersoldaten und bewaffneter Konflikt, 2009, p. 139. 164 R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 12. 165 CRC Committee, Report on the nineteenth session, CRC/C/80, 1998. 166 CRC Committee, Concluding Observations: Burundi, CRC/C/15/Add.133, 2000, para. 71; Sierra Leone, CRC/C/15/Add.116, 2000, para. 26; Israel, CRC/C/15/Add.1950, 2002, para. 32 b. 167 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1540. 168 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1541.

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This is due to the fact that this obligation directly affects and can be directly influenced by the State, whereas Article 38 para. 1 and para. 2 CRC require States Parties to provide protection of children against activities by non-State actors.169 The prohibition of recruiting minors under the age of 15 years into the States’ armed forces applies irrespective of whether an armed conflict or hostilities exist. It is therefore applicable also during peacetime.170 Just as Article 38 para. 2 CRC, also Article 38 para. 3, sentence 1 CRC stipulates a 34 minimum age of 15 years, which again implies a deviation from the standards set out in Article 1 CRC. This regulation corresponds to the minimum standard laid down in Article 77 para. 2 of the First Additional Protocol to the Geneva Conventions and to Article 4 para. 3 lit. c of the Second Additional Protocol to the Geneva Conventions. However, other relevant international treaties such as the African Charter on the Rights and Welfare for the Child (Article 22, read in conjunction with Article 2 ACRWC) and ILO Convention No. 182 stipulate a higher level of protection, namely 18 years of age. 171 In accordance with these approaches, the CRC Committee requires the States Parties to raise the minimum age for any type of recruitment to 18 years.172 Although the desire of the CRC Committee is understandable on a moral basis, it is an example of its progressive functioning which actually disapproves of a standard literally provided for in Article 38 para. 2 CRC.173 Consensus between drafters on the age of 15 years in this regard emerged as a simple lowest common denominator.174 Even Article 2 OPAC stipulates an age limit of 18 years only as far as a compulsory recruitment is concerned, but not for voluntary recruitment.175 It is not entirely clear what is meant by “recruiting … into their armed forces”, since 35 in practice, there are different ways of recruitment, conscriptions and enlistments. People can volunteer for, or be compelled to join the armed forces. Additionally, there is forced conscription which differs from compulsory conscription in that it is obtained by forcible, illegal means such as abductions.176 The different international conventions do not show a uniform tendency in regards to which forms of conscription or recruitment are covered (see, e.g., Article 51 of Geneva Convention IV: “voluntary enlistment”, Article 2 OPAC: “compulsorily recruited”, Article 3 OPAC: “voluntary recruitment”, Article 3 lit. a ILO Convention No. 182: “forced or compulsory recruitment”, Article 8 para. 2 lit. b xxvi and lit. e vii ICC Statute: “conscripting or enlisting”). Due to this inconsistent use of the concept of “recruitment to the armed forces”, there are some scholars who do not consider voluntary conscription as constituting a form of recruitment into the armed forces and therefore as being outside the scope of Article 38 para. 3, sentence 1 CRC. 177 See → Article 38 mn. 25. CRC Committee, Concluding Observations: Sweden, CRC/C/15/Add.2, 1993, paras 8, 11. 171 R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mns. 2 et seq. 172 CRC Committee, Concluding Observations: Bhutan, CRC/C/15/Add.157, 2001, paras 54 et seq.; see also CRC Committee, Concluding Observations: Cameroon, CRC/C/15/Add.164, 2001, p. 23-24 c. 173 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 14. 174 MA Drumbl/J Tobin, Article 38, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1503, at 1543. 175 For a fuller account, see R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mns. 14 et seq. 176 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38, mn. 80 et seq. See also SCSL Trial Chamber, Judgment of 20 June 2007, SCSL-04-16-T, para. 734 – Prosecutor v. Brima, Kamara and Kanu. 177 See G Van Bueren, The International Legal Protection of Children in Armed Conflicts, International and Comparative Law Quarterly 43 (1994), p. 809, at 814. 169 170

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Others, in contrast, assume that the motive and the way in which the participation in the armed forces is initiated is not decisive for the concept of recruitment under Article 38 para. 3 CRC, since merely the outcome, i.e. the participation in the armed forces as such is relevant.178 The CRC Committee tends to this broad teleological approach under Article 38 para. 3, sentence 1 CRC and includes all forms of conscription into the armed forces, including voluntary enlistment. 179 In fact, reality shows that emergency situations often pave the way for the instrumentalisation of children and lead to great risks for them.180 36 This broad interpretation is supported by the travaux préparatoires to the CRC. Originally, there were efforts to formulate the provision either in a way that only the compulsory conscription to the armed forces would fall within the scope of Article 38 para. 3, sentence 1 CRC,181 or in a way to draw differences between voluntary recruitment through military academies and compulsory recruitment.182 This distinction is eventually reflected in Article 3 OPAC, which differentiates between the voluntary recruitment of persons into the national armed forces, and the enrolment of persons under the age of 18 years to military schools operated by or under the control of the armed forces.183 However, the desire for a differentiation did not find expression in Article 38 CRC, which shows that the drafters were in fact conscious of various interpretative possibilities and they decided nevertheless for an unrestrictive wording. Moreover, a majority of the States representatives during drafting considered that the minimum age for recruiting into the armed forces should, in all circumstances, be set at 18 years, and no distinction should be made between voluntary enlistment and compulsory conscription. This should also be the case even if parental consent exists for an earlier recruitment of their child to the armed forces.184 Therefore, it must be assumed that Article 38 para. 3, sentence 1 CRC covers all forms of recruitment in the armed forces of States Parties, be they compulsory or voluntary. Finally, this interpretation stands in line with the 1997 Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces, the 2007 Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups and the 2007 Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups.185 Also, the ICRC Study on customary law has clarified that the prohibition of all forms of child recruitment into armed forces is a norm of customary international humanitarian law. 186

See I Cohn/G Goodwin-Gill, Child Soldiers: The Role of Children in Armed Conflict, 1994, p. 62. See CRC Committee, Concluding Observations: Sierra Leone, CRC/C/15/Add.116, 2000, paras 26, 27; see also F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 80. 180 CRC Committee, Report on the Eleventh Session, CRC/C/50, 1996, para. 251. 181 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 782-783. See also S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 505. 182 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 510. 183 See C Kreuzer, in: J Hasse/E Müller/P Schneider (eds.), Humanitäres Völkerrecht, 2001, p. 304, at 311, R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mns. 27 et seq. 184 See Commission on Human Rights, Report of the Working Group, E/CN.4/1998/102, 1998, para. 28. See also CRC Committee, Concluding Observations: Cameroon, CRC/C/15/Add.164, 2001, para. 24. 185 See C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 525. 186 See J-M Henckaerts/L Doswald-Beck, Study on Customary International Humanitarian Law, Vol. I, Rules of the ICRC, 4th edn. 2009, Rules 136, 137. See also G Wascherfort, International Law and Child Soldiers, 2015, p. 98-102. 178

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Moreover, Article 2 OPAC is of particular importance in this context. According to 37 this provision, States Parties shall ensure that persons under the age of 18 years are not compulsorily recruited into their armed forces. This also encompasses the legally forced inclusion in military schools and the compulsory inspection for serving in the armed forces,187 since Article 3 para. 5 OPAC only allows for a genuinely voluntary recruitment in military schools of persons under the age of 18 years. The compulsory inspection of minors represents a first step towards the recruitment to the armed forces. Therefore, the former application of the German laws of conscription, according to which a male person could be mustered half a year before turning 18 without or against his will and without the consent of his legal representatives, violated Article 2 and Article 3 OPAC.188 In addition, the CRC Committee calls on the States Parties to refrain from any advertising campaigns for the recruitment of young people under the age of 18 years into the armed forces,189 and insists that children are free to leave the armed forces and military schools at any point in time.190

2. Article 38 para. 3, sentence 2 CRC If persons are recruited or conscripted to the armed forces, who are over 15, but 38 under 18 years of age, the States Parties shall, pursuant to Article 38 para. 3, sentence 2 CRC, endeavour to give priority to those who are oldest. An agreement between States Parties to a rule which would absolutely restrict the access of minors under the age of 18 years to the armed forces could be achieved neither in the CRC nor in the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict. The formulation in Article 38 para. 3, sentence 2 CRC constitutes a compromise and creates a special rule for those juveniles who are not protected by Article 38 para. 2 and para. 3, sentence 1 CRC, but who require special protection because of the fact that they are still children within the meaning of Article 1 CRC.191 The States Parties’ obligation to “endeavour” set out in Article 38 para. 3, sentence 39 2 CRC is the weakest form of an obligation in international law. Especially in view of the already low level of protection which results from the fact that minors are not completely excluded from the armed forces, a higher standard or a more concrete obligation would have been desirable.192 However, during drafting, there was always consensus among the States Parties regarding this formulation of the provision.193 This

187 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 525. 188 CRC Committee, Concluding Observations: Germany, CRC/C/OPAC/DEU/CO/1, 2008, para. 11; CRC/C/DEU/CO/3-4, 2014, para. 76. Further see H Cremer, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 20 Jahre UN-Kinderrechtskonvention, 2010, p. 41, at 46. See also CRC Committee, Concluding Observations: Greece, CRC/C/OPAC/GRC/CO/1, 2012, paras 12 et seq.; Azerbaijan, CRC/C/ OPAC/AZE/CO/1, 2012, paras 19-20. 189 CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 77 c. See also CRC Committee, Concluding Observations: Austria, CRC/C/AUT/CO/3-4, 2012, para. 56. 190 CRC Committee, Concluding Observations: Brazil, CRC/C/OPAC/BRA/CO/1, 2008, para. 21; Egypt, CRC/C/OPAC/EGY/CO/1, 2011, para. 20. 191 C Pilloud/J Pictet, in: Y Sandoz/C Swinarski/B Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, p. 901, mns. 3185 et seq. 192 Similar assessment by H-P Gasser/N Melzer, Humanitäres Völkerrecht – Eine Einführung, 2 nd edn. 2012, p. 81; see also R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 42. 193 See S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 502-517.

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consensus may presumably be attributed to the fact that the strict observance of such a type of obligation would be difficult to control.194 40 The Convention text does not provide any indication as to the scope of the obligation to “endeavour”. However, the term also exists in Article 77 para. 2, sentence 2 of the First Additional Protocol to the Geneva Conventions. Here, it is understood as an “urgent request” upon the Contracting States which do not enjoy full discretion.195 Following this interpretation, it is suggested that also Article 38 para. 3, sentence 2 CRC should be read in a similar way. Therefore, States Parties are obliged, at the least, to establish a selection system for the recruitment of the armed forces which guarantees the application of the priority clause. This can be done, for example, by training those responsible for recruitment about the examination of age during the recruitment process. 196 41 The priority clause represents the core content of the compromise as referred to in Article 38 para. 3, sentence 2 CRC. If persons who have not yet reached the age of 18 years may be recruited to the armed forces, it should be assured that the oldest persons be recruited first. This implies, however, that 15-year-olds can in fact be recruited if a large number of recruits are needed. In regards to its scope, Article 38 para. 3, sentence 2 CRC reflects the standard set out in Article 77 para. 2 of the First Additional Protocol to the Geneva Conventions.197 However, Article 38 para. 3, sentence 2 CRC has the advantage that it is not only applicable in cases of international armed conflict, but also in any kind of conflict and even in times of peace.198 On the other hand, it remains disadvantageous that a breach of the priority clause cannot be punished as a war crime under the Rome Statute of the ICC199 and that it is not considered a violation of Articles 85 and 86 of the First Additional Protocol to the Geneva Conventions, since it is not listed as a serious breach of the Protocol.200 42 The First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict has improved the protection of children by establishing the minimum age for compulsory recruitment into the armed forces in Article 2 OPAC at the age of 18 years. Article 3 OPAC raises the minimum age for a voluntary recruitment to at least 16 years of age through national legislation of States Parties. If State Parties have set a minimum age for voluntary recruitment into the armed forces pursuant to Article 3 para. 1 OPAC, they may only withdraw this limitation in favour of a provision which provides a higher age limit.201 Afterwards, a return to the minimum age of 16 years is no longer permissible.202

194 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 97. 195 See J Pictet, Commentary on the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1958, p. 42. 196 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 99. 197 R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 12. 198 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 31. 199 See Article 8 para. 2 lit. b (xxvi) of the ICC Statute. 200 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 92. 201 See Article 3 para. 4 OPAC. 202 M Happold, The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Yearbook of International Humanitarian Law 3 (2000), p. 226, at 238.

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V. Protection of Children as Part of the Civilian Population (Article 38 para. 4 CRC) Children in their capacity as civilians can be affected in various ways by an armed 43 conflict, with all forms of negative experiences, ranging from “extremely negative” 203 to “traumatic”.204 Children can become abandoned or displaced,205 they can become orphans,206 or lack access to health care facilities or educational institutions.207 In particular girls are additionally threatened continually by rape, sexual exploitation and abuse.208 The CRC Committee repeatedly emphasises the deleterious effect of armed conflict upon all children, invoking themes of trauma and long-term harm.209 Against this background, Article 38 para. 4 CRC obligates States Parties to take steps 44 to comply with their obligations under international humanitarian law relating to the protection of the civilian population. The personal scope of Article 38 para. 4 CRC is applicable to children in the civilian population only, and not to child soldiers or children who directly participate in hostilities. Just like Article 38 para. 1 CRC, also Article 38 para. 4 CRC refers to the obligations of the States Parties to international humanitarian law.210 However, Article 38 para. 4 CRC focuses on obligations towards children in the civilian population in particular. In this area, children specifically enjoy the protection of Geneva Convention IV, as long as they fall within the protected group of persons in Article 4 of Geneva Convention IV. Key rules under international humanitarian law designed for the protection of child civilians are Articles 27 to 34 of the Geneva Convention IV, and Article 75 of the First Additional Protocol to the Geneva Conventions.211 In addition, the provisions of Article 48 and Article 51 of the First Additional Protocol to the Geneva Conventions are of great significance.212 Moreover, in the case of all (international as well as non-international) armed conflicts, common Article 3 to the Four Geneva Conventions is of utmost importance. The elementary considerations and the minimum yardstick of humanity laid down in Article 3 include the absolute prohibition to commit war crimes against children and women.213 Finally, Article 4 and Article 13 of the Second Additional Protocol to the Geneva Conventions may be of relevance. However, the circumstances which must be fulfilled for the application of the Second Additional Protocol214 are so demanding that they are rarely met.215 CRC Committee, Concluding Observations: Colombia, CRC/C/15/Add.137, 2000, para. 55. CRC Committee, Concluding Observations: Sri Lanka, CRC/C/15/Add.40, 1995, para. 44. 205 CRC Committee, Concluding Observations: El Salvador, CRC/C/15/Add.9, 1993, para. 11; Democratic Republic of the Congo, CRC/C/15/Add.153, 2001, paras 62 et seq.; Ethiopia, CRC/C/15/Add.144, 2001, paras 42 et seq. 206 CRC Committee, Concluding Observations: Algeria, CRC/C/15/Add.76, 1996, para. 27. 207 CRC Committee, Concluding Observations: Yugoslavia, CRC/C/15/Add.49, 1996, para. 5. 208 G Machel, The Impact of War on Children, A Review of Progress Since the 1996 United Nations Report on the Impact of Armed Conflict on Children, 2001, p. 54. 209 See F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 108. 210 See → Article 38 mns. 7 et seq. 211 H-P Gasser/N Melzer, Humanitäres Völkerrecht – Eine Einführung, 2 nd edn. 2012, p. 129. For a fuller account see R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mns. 17 et seq., 23 et seq. 212 See L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881, at 886. 213 (German) Federal Court of Justice, Decision of 25 October 2010, 1 StR 57/10, para. 40, with further references. 214 See H-P Gasser/N Melzer, Humanitäres Völkerrecht – Eine Einführung, 2 nd edn. 2012, p. 69 et seq. 215 C Daase, in: J Hasse/E Müller/P Schneider (eds.), Humanitäres Völkerrecht: politische, rechtliche und strafgerichtliche Dimensionen, 2001, p. 132, at 152. 203 204

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Geneva Convention IV guarantees a number of individual rights to children in the civilian population, whereas the general principle of the protection of children in the civilian population in the event of an armed conflict is stipulated in Article 77 of the First Additional Protocol to the Geneva Conventions for international armed conflict and in Article 4 para. 3 of the Second Additional Protocol to the Geneva Conventions for non-international armed conflict. In particular, the following subjective rights of children in the civilian population are to be guaranteed during armed conflict: The right to evacuate from besieged and encircled areas, by establishing specific safety zones and secure localities for children;216 the right to care, welfare and health care, in particular for children who are orphaned or separated from their families;217 the right to relief, schooling, education, playgrounds, protection from assault, and the provision of a safe cultural environment,218 the right to a humane and child-appropriated treatment of arrested, detained, imprisoned or interned children;219 and the exemption of the death penalty.220 In particular, detaining children remains a measure of last resort. If arrested, detained or interned for reasons related to the armed conflict, children who are not accompanied by their families should be held in quarters separate from the quarters of adults.221 Otherwise, children should be held in the same place and accommodated as family units.222 In addition to these numerous individual provisions,223 common Article 3 of the Four Geneva Convention guarantees a minimum humanitarian standard applicable to all persons, including children.224 The ICRC states in this respect that children affected by armed conflict are entitled to special respect and protection in both international and non-international armed conflicts. This customary rule includes the protection against sexual violence and slavery, access to education, food and health care, evacuation from areas of combat for safety reasons, and reunification of unaccompanied children with their families.225 46 By making reference to the rights enshrined in the Geneva Conventions and their Additional Protocols, Article 38 para. 4 CRC leads to a certain overlap between human rights grounded in peacetime international law, which continues to be fundamentally applicable in times of armed conflict, and international humanitarian law.226 In line with 45

216 See Article 14, Article 17, Article 24 para. 2, Article 49 para. 3, Article 132 para. 2 of Geneva Convention IV; Article 78 of the First Additional Protocol; Article 4 para. 3 lit. e of the Second Additional Protocol. 217 Article 23, Article 24 para. 1, Article 38 para. 5, Article 50, Article 89 para. 5 of Geneva Convention IV; Article 70 para. 1, Article 77 para. 1 of the First Additional Protocol; Article 4 para. 3 of the Second Additional Protocol. 218 Article 24 para. 1, Article 50, Article 94 of Geneva Convention IV; Article 78 para. 2 of the First Additional Protocol; Article 4 para. 3 lit. a of the Second Additional Protocol. 219 Article 51 para. 2, Article 76 para. 5, Article 82, Article 85 para. 2, Article 89, Article 94, Article 119 para. 2, Article 132 of Geneva Convention IV; Article 77 para. 3, 4 of the First Additional Protocol; Article 4 para. 3 lit. d of the Second Additional Protocol. 220 Article 68 para. 4 of Geneva Convention IV; Article 77 para. 5 of the First Additional Protocol; Article 6 para. 4 of the Second Additional Protocol. 221 Article 77 para. 4 of the First Additional Protocol. 222 Article 82 of Geneva Convention IV; Article 75 para. 5 of the First Additional Protocol. 223 For more detail see J Kuper, International Law Concerning Child Civilians in Armed Conflict, 1997, p. 79 et seq., I Weiß, Der völkerrechtliche Schutz von Kindern in bewaffneten Konflikten, 1991, p. 82 et seq.; C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 520 et seq. 224 See → Article 38 mn. 44. 225 For more detail, see J-M Henckaerts/L Doswald-Beck, Study on Customary International Humanitarian Law, Volume I, Rules of the ICRC, 4th edn. 2009, Rule 135. 226 See ICJ, Advisory Opinion of 9 July 2004, ICJ Reports 2004, p. 136-203, paras 104 et seq. – Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. See also B Schäfer, Zum

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the ambivalent character of Article 38 CRC,227 the CRC Committee does not always make a clear distinction between the violation of human rights and international humanitarian law. For instance, the CRC Committee is more likely to treat torture of children in an armed conflict as a violation of Article 37 lit. a CRC, rather than as an infringement of Article 38 para. 4 CRC, read in conjunction with the relevant norms of international humanitarian law.228 On the one hand, this approach shows that the CRC Committee assumes that the Convention rights continue to apply during armed conflict. On the other hand, the CRC Committee misses the opportunity to establish the maximum possible standard of child protection by not including the relevant norms of international humanitarian law. Moreover, the CRC Committee's undifferentiated understanding between Articles 37 and 38 CRC is contrary to the principle of legal certainty. A different matter is the right to education during armed conflict. Here, the legal 47 provisions pertaining to child education in armed conflict provide in fact an example of how international humanitarian law and international human rights law interact and complement one another to ensure special protection for children.229 Read together, both legal regimes protect schools, students and teachers from direct and deliberate attacks and limit the occupation or use of educational facilities by warring parties.230 Both regimes further ensure the right to education during conflicts and provide protection for educational facilities.231 Therefore, the CRC Committee is right in referring to both Articles 28 and 29 CRC and international humanitarian law, when discovering any lack of education resulting from armed conflict.232 The term “feasible measures” in Article 38 para. 4 CRC corresponds in substance to 48 the identical term in Article 38 para. 2 CRC233 and leads again to a reduced level of protection offered by the CRC in comparison with the relevant provisions of international humanitarian law.234 Even more: Contrary to Article 38 para. 2 CRC, there is not only a reduction of protection in certain areas, but in all areas.235 The ICRC already made it clear during the drafting of the Convention that all rights enshrined in the Geneva Conventions and their Additional Protocols dealing with the protection of children in the civilian population are more strictly formulated than Article 38 para. 4 CRC on account of the choice of the formulation “feasible measures”.236 In order to follow the Convention’s overall aim of achieving the highest possible standard of protection for children, the CRC Committee routinely invokes more vigorous language than “feasible measures” and urges States Parties to take every effort to protect children from the Verhältnis Menschenrechte und humanitäres Völkerrecht. Zugleich ein Beitrag zur exterritorialen Geltung von Menschenrechtsverträgen, 2006, p. 35 et seq. 227 See → Article 38 mn. 2. 228 See for example: CRC Committee, Concluding Observations: Sierra Leone, CRC/C/15/Add.116, 2000, paras 44 et seq. 229 C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 522. 230 See Articles 51, 52 of the First Additional Protocol. 231 See Article 28 CRC, read in conjunction with Article 94 of Geneva Convention IV, Article 78 of the First Additional Protocol and Article 4 para. 3 of the Second Additional Protocol. 232 See, e.g., CRC Committee, Concluding Observations: Nepal, CRC/C/15/Add.261, 2005, para. 10; Azerbaijan, CRC/C/15/Add.77, 1997, para. 25. 233 See → Article 38 mn. 22. 234 F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 61; S von Schorlemer, Kindersoldaten und bewaffneter Konflikt, 2009, p. 137. 235 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 514 et seq.; G Van Bueren, The International Law on the Rights of the Child, 1995, p. 342. 236 See J Kuper, International Law Concerning Child Civilians in Armed Conflict, 1997, p. 104.

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effects of armed conflict,237 and to take “effective”,238 or at least “suitable”239 measures in accordance with international humanitarian law.

VI. Embedding of Article 38 CRC into the System of International Human Rights Protection and of International Humanitarian Law As demonstrated, the guarantee of Article 38 CRC is a particular one. When leaving aside the existence of derogation clauses in some human rights treaties, such as Article 4 ICCPR and Article 15 ECHR, there exists no other norm of a human rights treaty that explicitly refers to the application of international humanitarian law. Beyond the 1949 Geneva Conventions and their two 1977 Additional Protocols, to which the CRC Committee routinely refers when monitoring the implementation of Article 38 CRC, there are further treaties that are relevant to the protection of children in armed conflict. These are, e.g., the Hague Conventions of 1907 and the Hague Land Warfare Convention as annexed to the Fourth Hague Convention, the St Petersburg Declaration of 1868, the Hague Declarations of 1899, the Geneva Poison Protocol of 1925, the London Procès Verbal of 1936, the Hague Convention for the Protection of Cultural Property in Armed Conflicts of 1954 and its Additional Protocol of 1999, the Biological Weapons Convention of 1972, the ENMOD Convention of 1976, the Convention on Certain Conventional Weapons of 1980, including its five Additional Protocols, and the Ottawa Convention of 1997.240 50 In addition, also the Statutes of the international criminal tribunals are to be regarded as an important part of the relevant international humanitarian law within the context of Article 38 CRC.241 Article 8 para. 2 lit. b (ix) and lit. b (iv) of the Rome Statute of the ICC characterises as war crime, in both international and non-international armed conflicts, any attack intentionally directed against buildings dedicated to education, provided that they are not military objectives. Likewise, conscripting or enlisting children under the age of 15 years into armed forces or armed groups or using them to participate actively in hostilities constitutes, under Article 8 para. 2 lit. b (xxvi) and Article 8 para. 2 lit. e (vii) ICC Statute, a war crime in both international and non-international armed conflicts. Similar provisions are included in Article 4 lit. c of the Statute of the Special Court for Sierra Leone. This Court was the first international hybrid court to charge, try and ultimately convict individuals for the crime of recruiting and using child soldiers242 and to consider the forced marriage of girls in armed conflicts under certain circum49

237 CRC Committee, Concluding Observations: Ethiopia, CRC/C/15/Add.144, 2001, para. 69; Uzbekistan, CRC/C/15/Add.167, 2001, para. 62 a. 238 CRC Committee, Concluding Observations: Peru, CRC/C/15/Add.120, 2000, para. 18. 239 CRC Committee, concluding observations: Georgia, CRC/C/15/Add.214, 2000, para. 59. 240 205 CTS 233; 205 CTS 250; 205 CTS 263; 205 CTS 277; 205 CTS 299; 205 CTS 305; 205 CTS 319; 205 CTS 331; 205 CTS 345; 205 CTS 359; 205 CTS 367; 205 CTS 381; 205 CTS 395; 138 CTS 297; 187 CTS 453; 187 CTS 456; 187 CTS 459; 94 LNTS 65; 173 LNTS 353; 249 UNTS 215; 2253 UNTS 172; 1015 UNTS 163; 1108 UNTS 151; 1342 UNTS 137; 1380 UNTS 370; 2399 UNTS 100; 2056 UNTS 211. 241 A Roberts/R Guelff, Documents on the Laws of War, 2000, p. 35, F Ang, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 38, 2005, Article 38 mn. 20. 242 See Special Court of Justice for Sierra Leone, Decision of 31 May 2004, SCSL-04-14-AR72E, p. 7383, at 7395 et seq. – Prosecutor v. Sam Hinga Norman. For more detail see C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 526.

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stances to be a crime against humanity.243 Following the footsteps of the Special Court for Sierra Leone, more recently, the International Criminal Court has also qualified the conscription of children under 15 years as war crimes pursuant to Article 8 para. 2 lit. e (vii) ICC Statute.244 This possibility does, however, not apply to 15 to 18-year-old soldiers or conflict participants.245 Last but not least, international customary law also forms an important part of 51 international humanitarian law, since its rules are binding on all States, irrespective of whether they are parties to a particular convention. This applies especially to the provisions of Article 38 para. 2, para. 3 CRC, both of which are established as minimum standards in customary law.246 Finally, the UN institutions are increasingly committed to the protection of children in armed conflicts.247 For instance, the Security Council has encouraged all Member States to take concrete measures to protect schools from attacks or from being used as military bases or barracks.248 Furthermore, the Security Council remains actively seized of the issue of children and armed conflict, also with regard to child soldiers.249

Article 39 [Rehabilitation Measures] States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Recovery and Reintegration Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Embedding of Article 39 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 13

243 See Special Court for Sierra Leone, Appeals Chamber, Decision of 22 February 2008, SCSL-2004-16-A, paras 202 et seq. – Prosecutor v. Tamba Brima et al. Further see E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 16; R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mns. 3, 20. 244 ICC Trial Chamber, Judgment of 14 March 2012, IC-01/04-01/06, paras 600 et seq. – Prosecutor v. Thomas Lubanga Dyilo. For more detail see R Arnold, Children and Armed Conflict, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 30. 245 For more detail see L Steinl, Kindersoldat*innen und Verantwortlichkeit für Völkerrechtsverbrechen: Narrative, Ambivalenzen und Grenzen des Völkerstrafrechts, Kritische Justiz 51 (2018), p. 45, at 52; L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881, at 883, 896. 246 R Harvey, in: T Marauhn (ed.), Internationaler Kinderschutz, 2005, p. 1, at 11. 247 See, e.g., Security Council Resolutions 1539 (2004), S/RES/1539 (2004) of 22 April 2004; 1612 (2005), S/RES/1612 (2005) of 26 July 2005; 1998 (2011), S/RES/1998 (2011) of 12 July 2011; and General Assembly Resolution 65/197, A/RES/65/197, 21 December 2010, paras 21 et seq. 248 See, e.g., Security Council Resolution 2143 (2014), S/RES/2143 (2014) of 7 March 2014, para. 18; Security Council Resolution 2225 (2015), S/RES/2225 (2015) of 18 June 2015, para. 7. 249 For a fuller account on the most relevant Security Council resolutions on the matters, see G Wascherfort, International Law and Child Soldiers, 2015, p. 159-163.

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[Rehabilitation Measures]

I. Generalities Article 39 CRC is closely linked to Article 19 CRC that strictly forbids all forms of violence against children, and to Articles 32-36 CRC, which prohibit various forms of exploitation of children (Article 32 to Article 35 CRC) or stipulate a general prohibition of exploitation of all kinds (Article 36 CRC).1 A strong connection between Article 39 CRC exists also to Article 37 lit. a CRC and to Article 38 CRC.2 Furthermore, Article 6 para. 3 and Article 7 para. 1 of the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (OPAC) require States Parties to take all feasible measures to demobilise and rehabilitate former child soldiers and to provide them adequate assistance and thus build upon Article 39 CRC.3 Article 9 para. 3 of the Second Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography (OPSC) includes similar requirements with regard to child victims of sale, prostitution and pornography. 2 Article 39 CRC is designed as a comprehensive rehabilitation guarantee. It is a remedial provision, engaged primarily in circumstances where a child’s right has been violated.4 Thus, Article 39 CRC is mainly applicable in the case of infringement of one of the rights of the CRC in order to ensure justice at a secondary level. The obligation to promote recovery and social reintegration of a child victim under Article 39 CRC arises irrespective of whether a State is responsible for, involved in or has contributed to the harmful treatment of a child.5 The norm obliges States Parties to address both children’s physical and mental needs, as well as the environment in which they live.6 In that regard, Article 39 CRC pronounces a hard obligation on States Parties to take all appropriate measures for the recovery and reintegration of child victims.7 1

II. Recovery and Reintegration Guarantees 3

The exact meaning and scope of Article 39 CRC are difficult to determine, since the CRC Committee has not yet done so in general terms. However, of paramount importance is the fact that the child concerned must be removed from the environment in which he or she has become a victim of neglect, exploitation, ill-treatment, torture or armed conflict before recovery, rehabilitation and reintegration can take place at all. 8 States Parties are called upon to recognise that children, even if they were active in prostitution, had taken direct part in hostilities as child soldiers, or were systematically 1 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013, para. 56. See also J Todres, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 215, at 222. 2 See CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016, paras 81 et seq. 3 See C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 528. See also BF Klappe, in: D Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edn. 2013, p. 611, at 643. 4 See, e.g., CRC Committee, General Guidelines Regarding the Form and Content of Initial Reports, CRC/C/5, 1991, para. 23; Treaty-specific Guidelines Regarding the Form and Content of Periodic Reports, CRC/C/58/Rev.2, 2010, para. 39. 5 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1562. 6 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1562. 7 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 39.02. 8 See L Robinson, The Globalization of Female Child Prostitution: A Call for Reintegration and Recovery Measures Via Article 39 of the United Nations Convention on the Rights of the Child, Indiana Journal of Global Legal Studies 5 (1997), p. 239, at 257.

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recruited, trained and indoctrinate as child terrorists, are not only perpetrators but rather victims and therefore need reintegration or education instead of punishment. 9 As regards child soldiers, the UN General Assembly, through its “Children, Not Sol- 4 diers” campaign, has sought to create formal, written agreements to end the recruitment and use of children in hostilities and to promote social reintegration of a child who has been the victim of armed conflict.10 Also, the 2007 Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups and the 2007 Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups require that States ensure that children under 18 years of age who are or who have been recruited unlawfully or used by armed forces or groups and are accused of crimes against international law are considered primarily as victims of violations against international law and not only as alleged perpetrators.11 In the case of Bosco Ntaganda, the International Criminal Court has emphasised that child soldiers, because of their illegal recruitment and illegal use in armed hostilities, do not lose the protection of international humanitarian law.12 However, a different accentuation might be appropriate if a commander, presumably forcibly conscripted in childhood, commits crimes against humanity or war crimes during adulthood. In the case Prosecutor v. Dominic Ongwen,13 the ICC will not have to rely solely on the own experience of violence by Ongwen during childhood but will also have to enter into a comprehensive and complex balance between individual guilt and collective injustice.14 At least, Ongwen’s personal background could emerge as a mitigating factor in sentencing in the event he is convicted.15 Nevertheless, the overall tendency to view child soldiers and child terrorist fighters primarily as victims of conflict is evident in the case-law of the international criminal courts.16 The UN Security Council and the CRC Committee also stress that these children should be treated first and foremost as victims of violations of international law and urge States Parties to consider non-judicial measures as alternatives to prosecution.17 In other words, the victim narrative of classic child soldiers shapes the legal processing of crimes under international law.18 While adults who recruit children are regularly prosecuted, rehabilitative approaches are advocated for the recruited

CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 100-101. See Human Rights Council, Annual Report of the Special Rapporteur of the Secretary-General for Children and Armed Conflict, A/HRC/34/44, 2016, paras 29 et seq. 11 For more detail see C Aptel, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 515, at 529. 12 See ICC, Decision of 4 January 2017, ICC-01//04-02/06, para. 53 – Prosecutor v. Bosco Ntaganda; confirmed by ICC, Judgment of 15 June 2017, ICC-01/04-02/06-1962, paras 50-51 – Prosecutor v. Bosco Ntaganda. 13 Commander of the Ugandan "Lord's Resistance Army", see ICC, Prosecutor v. Dominic Ongwen, ICC-02/04-01/15. 14 See also M Hiéramente, Internationaler Strafgerichtshof: Tätigkeiten 2015, Vereinte Nationen 2016, p. 84, at 84 et seq.; L Steinl, Kindersoldat*innen und Verantwortlichkeit für Völkerrechtsverbrechen: Narrative, Ambivalenzen und Grenzen des Völkerstrafrechts, Kritische Justiz 51 (2018), p. 45, at 48. 15 MA Drumbl, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 657, at 669. 16 See N Quénivet, Does and Should International Law Prohibit the Prosecution of Children for War Crimes? European Journal of International Law 28 (2017), p. 433, at 435 et seq.; J Salomé, Children Accountability and Justice: Advancing Restorative Justice for Child Solders and Child Pirates, Allons-y 1 (2016), p. 33, at 35-36. See also → Article 38 mn. 1. 17 See UN Security Council Resolution 2427 (2018), S/RES/2427 of 9 July 2018, para. 21; CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 100-101. 18 See L Steinl, Kindersoldat*innen und Verantwortlichkeit für Völkerrechtsverbrechen: Narrative, Ambivalenzen und Grenzen des Völkerstrafrechts, Kritische Justiz 51 (2018), p. 45, at 48. 9

10

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children.19 However, legal scholars are increasingly critical of this reduction of child soldiers and child terrorists to the exclusive role of victims. They argue that the role of victim does not do justice to the self-perception of many child soldiers and underage foreign terrorist fighters, but rather incapacitates them to the extent that it completely denies them the ability to make self-determined decisions.20 To a certain extent, children should therefore be considered as perpetrators of serious human rights crimes which they have committed. Of course, this requires that they receive criminal proceedings that respect the requirements of Article 40 CRC and, above all, correspond to their age and level of maturity and recognise their dignity as human beings.21 5 Article 39 CRC describes the beneficiaries of the right to reintegration and recovery. The norm does not extend to all children who are victims of any harm or injury, irrespective of the circumstances. Article 39 CRC is rather confined to those children who are victims of the specific harms listed under Article 39 CRC or of armed conflict. 22 As such, any harm caused to children by natural disasters or accidental injuries does not fall under the scope of Article 39 CRC.23 Article 39 CRC is restricted to situations where a child is the victim of neglect, exploitation, abuse, torture, cruel, inhuman or degrading treatment, or armed conflict. The understanding of the CRC Committee, according to which Article 39 CRC has a broad sphere of application,24 is therefore inconsistent with the restrictive wording of the norm. 6 As mentioned above, a child perpetrator may well be regarded as a victim for the purposes of Article 39 CRC. Child soldiers are the most obvious examples, but many children who commit crimes or acts of violence are often themselves (former) victims of abuse or violence. Therefore, the CRC Committee rightly requests States Parties to provide information related to measures for the recovery and reintegration of children involved with the administration of juvenile justice.25 Although the beneficiaries of the right to recovery and reintegration are “child victims”, nothing stands in the way to argue for a temporal persistence of this right beyond childhood. The entitlement to remedial and restorative measures has no temporal limitation. Article 39 CRC is applicable whenever a child as defined under Article 1 CRC is a victim of the listed harms or armed conflict, irrespective of the age on which a person seeks assistance. An

19 See J Salomé, Children Accountability and Justice: Advancing Restorative Justice for Child Solders and Child Pirates, Allons-y 1 (2016), p. 33, at 36. For more detail see L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881, at 896 et seq. 20 See., e.g., MA Drumbl, Reimaging Child Solders in International Law and Policy, 2012, p. 8 et seq., 51 et seq.; L Steinl, Kindersoldat*innen und Verantwortlichkeit für Völkerrechtsverbrechen: Narrative, Ambivalenzen und Grenzen des Völkerstrafrechts, Kritische Justiz 51 (2018), p. 45, at 49 et seq.; L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881, at 900 et seq. 21 See → Article 40 mns. 1 et seq. See also UN General Assembly Resolution 70/291, A/RES/70/291, 1 July 2016, para. 18. 22 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1565. 23 Rightly so, J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1567. 24 See, e.g., CRC Committee, Concluding Observations: Yemen, CRC/C/YEM/CO/4, 2014, para. 82; Russia, CRC/C/RUS/CO/4-5, 2014, para. 66; Cameroon, CRC/C/CMR/CO/2, 2010, para. 68; Holy See, CRC/C/VAT/CO/2, 2014, para. 44; Liberia, CRC/C/LBR/CO/2-4, 2012, para. 50. 25 CRC Committee, Treaty-specific Guidelines Regarding the Form and Content of Periodic Reports, CRC/C/58/Rev.2, 2010, para. 39.

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adult who experienced harm as a child is thus not compellingly excluded to assistance under Article 39 CRC.26 Under Article 39 CRC, States Parties shall take all appropriate measures to promote 7 physical and psychological recovery and social reintegration of a child victim. The obligation under Article 39 CRC is not an obligation of result. States Parties are simply not able to guarantee child victims full recovery and reintegration.27 A complete state of recovery may even never be achieved for some child victims. Therefore, States Parties have merely the obligation to do everything in their power to alleviate continued suffering and promote the child’s return to a healthier position.28 Although States Parties enjoy discretion in developing and implementing a variety 8 of legislative or administrative measures to promote the recovery and reintegration of the child,29 the measures taken must be effective, context-specific and individualised. The CRC Committee expresses concern where it perceives that human and financial resources have not been sufficiently allocated for children’s recovery and reintegration. 30 It also emphasises the principle of individualisation, since every child victim and his or her experience are unique. States Parties are thus called upon to tailor their restorative and reintegrative measures to address the specific needs of the individual child victim. 31 These measures must also include the child as an active participant in his or her recovery and reintegration process, in accordance with Article 12 CRC.32 The provision of physical and psychological recovery requires the establishment and 9 maintenance of appropriate medical and medical-psychological facilities with trained staff.33 For physical recovery, a corresponding supply of medicines must be available.34 In the area of psychological recovery, in addition to psychological support to cope with the trauma, other forms of support (especially financial assistance) are also necessary in order to reintegrate the victim back into society and give him or her the opportunity to make or resume social contacts.35 One possibility of rehabilitation can also be compensation payments to the victims. In the case Prosecutor v. Thomas Lubanga Dyilo, 36 the ICC has for the first time compensated the victim for damages according to Article 75 para. 1 of the ICC Statute.37 The ICC has further emphasised that any award of reparations made should be conflict-sensitive and assist reconciliation and recovery. 38 26 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1566, 1569-1570. 27 OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 803-804. 28 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1571. 29 See OHCHR, Legislative History of the Convention on the Rights of the Child, 2007, p. 801. 30 See CRC Committee, Concluding Observations: Liberia, CRC/C/LBR/CO/2-4, 2012, para. 79; Cambodia, CRC/C/KHM/CO/2, 2011, paras 45 et seq.; Tuvalu, CRC/C/TUV/CO/2-5, 2020, para. 31. 31 See CRC Committee, General Comment No. 9, CRC/C/GC/9, 2007, para. 55; General Comment No. 13, CRC/C/GC/13, 2011, para. 52. 32 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1566-1567, 1575. 33 L Robinson, The Globalization of Female Child Prostitution: A Call for Reintegration and Recovery Measures Via Article 39 of the United Nations Convention on the Rights of the Child, Indiana Journal of Global Legal Studies 5 (1997), p. 239, at 258. 34 See also → Article 24 mn. 10. 35 Similarly, see A Köpcke-Duttler, Kindersoldaten, Dialogische Erziehung 2002, p. 9, at 15 et seq. 36 ICC, Trial Chamber, Judgment of 7 August 2012, ICC-01/04-01/06 – Prosecutor v. Thomas Lubanga Dyilo. See also → Article 38 para. 50. 37 See D Shelton, Introductory Note to the International Criminal Court: Situation in the Democratic Republic of Congo, Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to Be Applied to Reparations, ILM 51 (2012), p. 971 et seq. 38 ICC, Trial Chamber, Judgment of 7 August 2012, ICC-01/04-01/06, para. 57 – Prosecutor v. Thomas Lubanga Dyilo.

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Art. 39

[Rehabilitation Measures]

Importantly, the promotion of education and training (Article 28, 29 CRC) plays a central role regarding the protections offered by Article 39 CRC. Lack of education is a common reason why children can be exploited and abused. Promoting education can thus prevent the development of situations which lead to child exploitation, and also end those situations already existing. In addition to the appropriate measures to be taken by all States Parties in regards to their own domestic legal systems, Article 39 CRC may also require that financial assistance be provided to economically weaker countries in order to ensure appropriate education of children. 11 A regulation specifically aimed at the reintegration of child soldiers is contained in Article 6 para. 3 OPAC. According to this provision, States Parties shall guarantee that all former child soldiers receive necessary and appropriate support for their physical and mental recovery and social reintegration. This obligation applies in particular to former child soldiers of another State who seek refuge in a new State.39 For instance, despite various financial and humanitarian contributions to the reintegration and rehabilitation of child soldiers, which the CRC Committee expressly welcomes,40 the CRC Committee is concerned about the shortcomings in Germany with former child soldiers from other States.41 A fundamental problem is that these children are burdened with asylum procedures that are not designed in a child-sensitive manner.42 Former child soldiers live in Germany usually in a so-called toleration status and thus in constant fear that the granted suspension of deportation would be repealed.43 Furthermore, it is problematic with regard to the object and purpose of the Convention that former child soldiers, if they have reached the age of 16 years, are spun off from child and youth welfare services in some federal States in Germany and placed in adult accommodation for asylum seekers.44 12 Article 39, sentence 2 CRC finally states that recovery and reintegration of child victims shall take place in an environment which fosters the health, self-respect and dignity of the child. It is clear from the travaux préparatoires that this phrase was intended to regulate the quality of measures to promote the child victim’s recovery and reintegration.45 This means that the child is to recover in physical and social settings that correspond to his or her particular needs. It also extends to a child’s relationships with other persons, including parents, relatives, siblings, social workers or other persons whom the child trusts.46 States Parties are required to take all reasonable measures to reunify children who have been separated from their parents whether due to armed conflict or any other reasons.47 Furthermore, children’s views have to be given due consideration in the whole process of recovery and reintegration (see Article 12 CRC). The CRC Committee correctly notes that children’s participation helps to regain control over 10

39 H Cremer, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 41, at 48 et seq. 40 CRC Committee, Concluding Observations: Germany, CRC/C/OPAC/DEU/CO/1, 2008, para. 4. 41 See CRC Committee, Concluding Observations: Germany, CRC/C/OPAC/DEU/CO/1, 2008, paras 16 et seq. See also CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, para. 54 c. 42 CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.43, 1996, para. 19; CRC/C/ OPAC/DEU/CO/1, 2008, para. 18. 43 For more detail, see A Meißner, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 59, at 60 et seq. 44 D Zito, Zwischen Angst und Hoffnung. Kindersoldaten als Flüchtlinge in Deutschland, 2009, p. 11. 45 See Commission on Human Rights, E/CN.4/1988/28, 1988, paras 66-70. 46 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1590. 47 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1591.

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their lives, contributes to rehabilitation, develops organisational skills and strengthens a sense of identity.48

III. Embedding of Article 39 CRC into the System of International Human Rights Protection Article 39 CRC, with its extensive rehabilitation guarantee especially tailored to the 13 child, is rather unique within the system of international human rights treaties. Only Article 14 para. 1, sentence 1 CAT, which requires reparation and rehabilitation measures for torture victims, is similar to Article 39 CRC. Other rehabilitation guarantees exist only with regard to the reintegration of criminal perpetrators and the social integration of persons with disabilities.49 However, these standards differ from the child-related objective in Article 39 CRC, since they are tailored for both adults and children. The 2000 Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children50 contains a section dedicated to the recovery of child victims but only suggests some potential measures and relies only on a rather weak obligation.51 A stronger obligation is only present on the regional level. Article 14 of the CoE Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention)52 provides that each party shall take the necessary legislative or other measures to assist victims, in the short and long term, in their physical and psycho-social recovery, thereby taking into account the child’s views, needs and concerns.

Article 40 [Children in Criminal Law and Criminal Proceedings] 1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. 2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed; (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to

CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 125. See, e.g., Article 10 para. 3, Article 14 para. 4 ICCPR, Article 5 para. 6 ACHR, and Article 15 ESC. 50 2237 UNTS 319. 51 J Tobin/C Marshall, Article 39, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1561, at 1565. 52 CETS No. 201. See also → Article 34 mn. 17. 48

49

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(iii)

(iv) (v)

(vi) (vii)

[Children in Criminal Law and Criminal Proceedings]

have legal or other appropriate assistance in the preparation and presentation of his or her defence; To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; To have the free assistance of an interpreter if the child cannot understand or speak the language used; To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Dignity and Welfare of the Child in Criminal Procedural Law (Article 40 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Minimum Procedural Safeguards in Criminal Proceedings (Article 40 para. 2 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Principle nulla poena, nullum crimen sine lege (Article 40 para. 2 lit. a CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Presumption of Innocence (Article 40 para. 2 lit. b [i] CRC) . . . . . . . . . . . . . . 3. Right to Be Promptly Informed of the Charges (Article 40 para. 2 lit. b [ii] CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Right to a Fair Hearing without Delay in the Presence of Parents (Article 40 para. 2 lit. b [iii] CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Right against Self-Incrimination and Right to Cross-Examination of Witnesses (Article 40 para. 2 lit. b [iv] CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Right to Appeal (Article 40 para. 2 lit. b [v] CRC) . . . . . . . . . . . . . . . . . . . . . . . . . 7. Right to an Interpreter (Article 40 para. 2 lit. b [vi] CRC) . . . . . . . . . . . . . . . . . 8. Right to Privacy (Article 40 para. 2 lit. b [vii] CRC) . . . . . . . . . . . . . . . . . . . . . . . IV. Child-Friendly Criminal Justice (Article 40 para. 3 CRC) . . . . . . . . . . . . . . . . . . . . 1. Minimum Age of Criminal Responsibility (Article 40 para. 3 lit. a CRC) 2. Extrajudicial, Diversionary Measures (Article 40 para. 3 lit. b CRC) . . . . . .

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Art. 40

[Children in Criminal Law and Criminal Proceedings] V. Measures to Ensure the Well-Being of Children in Criminal Proceedings (Article 40 para. 4 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Embedding of Article 40 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

30 32

I. Generalities Historically, criminal law made no particular distinction between adults and children 1 who had reached the minimum age of criminal responsibility. Both were essentially subject to the same laws, which were dealt with by the same courts, and were subject to the same penal regime.1 Only in the beginning of the 20th century, a new model emerged in response to the failure of the adult-centred criminal justice system to take account of the special needs and vulnerable status of children,2 since children differ from adults in their physical and psychological development.3 At that time, this welfarist model had however still the principal aim to cure the anti-social behaviour of the child. Little consideration was given to the individual rights of the child.4 It is against this background that Article 40 CRC offers an innovative and comprehensive model of “juvenile justice” or “child justice system”5 which rejects, as far as possible, punishment and retribution in favour of a rights-based approach.6 Children are not only accorded due process rights in the same way as enjoyed by adults within criminal justice systems, but also special rights by virtue of their age and evolving capacities.7 Whereas Article 40 para. 2 CRC lists most (but not all!) of the traditional due process rights expected of a criminal justice system under international law, all the other paragraphs of the norm outline entitlements that are peculiar to children, based in particular on a restorative justice model which aims to bring about reconciliation rather than exacting punishment and to reintegrate a child into society rather than achieving retribution.8 The CRC Committee explains that the administration of juvenile justice systems under Article 40 CRC predicates a child-oriented system that recognises the child as a rights-holder and ensures that all actions concerning him or her are to be guided by the best interests of the child as a primary consideration.9 Furthermore, exposure to the criminal justice system has been demonstrated to cause harm to children, limiting their chances of becoming responsible adults. Evidence shows that the prevalence of crime committed

1 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1599. 2 See D Tanenhaus, in: B Feld/D Bishop (eds.), The Oxford Handbook of Juvenile Crime and Juvenile Justice, 2013, p. 899, at 899-902. 3 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 2. 4 See PW Schmitt, Dangerous Children and the Regulated Family: The Shifting Focus of Parental Responsibility Law, New York University Law Review 73 (1998), p. 667, at 673. 5 Different to General Comment No. 10 on children’s rights in juvenile justice (CRC/C/GC/10, 2007), the CRC Committee, in its most recent General Comment No. 24 on children’s rights in the child justice systems (CRC/C/GC/24, 2019), prefers the term “child justice system” to “juvenile justice”. 6 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1599, 1601. 7 See L Ferguson, Not Merely Rights for Children but Children’s Rights: The Theory Gap and the Assumption of the Importance of Children’s Rights, International Journal of Children’s Rights 21 (2013), p. 177, at 178 et seq. 8 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 10. See also J Tobin/ C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1602. 9 CRC Committee, Report on the tenth session, General Discussion on the Juvenile Justice, CRC/C/46, 1995, p. 33, para. 206.

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[Children in Criminal Law and Criminal Proceedings]

by children tends to decrease after the adoption of child justice systems in line with the protection of the child’s sense of dignity and worth.10 2 As is the case with almost all provisions of the Convention, also Article 40 CRC does not stand in isolation. The CRC Committee has rather stressed that States Parties must develop and implement a comprehensive juvenile justice policy which requires implementation of all the provisions contained in the Convention relating to children in conflict with the law.11 Besides Article 40 CRC itself, it is Article 37 CRC which is of central relevance in this area.12 Also, the core principles of the Convention contained in Articles 2, 3, 6 and 12 CRC form part of a comprehensive policy for juvenile justice.13 For instance, the CRC Committee underlines that States must take all necessary measures to ensure that all children in conflict with the law are treated equally in terms of Article 2 para. 1 CRC.14 The CRC Committee also emphasises that children’s development and best interests under Article 3 CRC provide the basis for the differential treatment between adults and children in conflict with the law.15 The CRC Committee further stresses that the development of a comprehensive and interdisciplinary child and juvenile justice policy must include measures to prevent juvenile delinquency and to promote the harmonious development of a child’s abilities, taking into account the views expressed by the child.16

II. Dignity and Welfare of the Child in Criminal Procedural Law (Article 40 para. 1 CRC) Article 40 para. 1 CRC deals with children alleged as, accused of, or recognised as having infringed the penal law and with the administration of youth justice proceedings. According to Article 40 para. 1 CRC, the States Parties shall treat any child who has been in conflict with the law in a manner which respects the dignity and worth of the child. This applies to children at every stage of criminal proceedings, from the first contact of the child with the law enforcement authorities to all measures taken in dealing with the child after the commission of a criminal offence.17 The principle stipulating that the law enforcement authority’s treatment of the child must be reconciled with his or her dignity is based on Article 1, sentence 1 UDHR, as well as on Recital 1 of the Preamble to the CRC, according to which every person is equal in dignity and rights.18 In order to fully protect human dignity, any form of violent treatment of children is absolutely prohibited.19 4 In addition, the treatment of children in criminal proceedings under Article 40 para. 1 CRC must reinforce the child’s respect for the human rights and fundamental freedoms of others. In the juvenile justice process, the education of children in regards to respect for human rights is a general priority. Such an educational objective is pursued 3

CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 2, 3. See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 4. 12 See → Article 37 mns. 10, 26. 13 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1603. 14 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 4. 15 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 10. 16 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 12; General Comment No. 24, CRC/C/GC/24, 2019, paras 10-11. 17 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 12. 18 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 13. 19 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 13. 10

11

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[Children in Criminal Law and Criminal Proceedings]

Art. 40

by Article 29 para. 1 lit. b CRC also outside of criminal proceedings.20 Respect to the human rights of others can, of course, only be demanded from children when they themselves are treated appropriately and when their rights are respected. Therefore, it is essential that the minimum standards for a fair trial, as laid down in Article 40 para. 2 CRC, are upheld and ensured.21 According to Article 40 para. 1 CRC, the treatment of children must take into 5 account the age of the child concerned and promote the child’s social reintegration. Reintegration means that no measures shall make the integration of the child as a fully-fledged member of society difficult.22 In order to adequately take into account the age of the child, all those authorities and persons involved in criminal proceedings must be familiar with children’s development in general and in the individual case.23 Therefore, the birth registration requirement under Article 7 CRC is particularly important because a child without a demonstrable birth date can be more easily overlooked or even abused.24 Furthermore, the obligation to register the birth of the child has important implications for the scope of Article 40 CRC, since Article 1 CRC imposes 18 years of age as the upper threshold for a child under the Convention. As such, Article 40 CRC does not extend to persons over the age of 18 years when they commit an offence.25 However, States Parties have discretion to extend the application of laws concerning children in conflict with the law to the law of young adults. In fact, the CoE Committee of Ministers strongly recommends that young adult offenders may be regarded as juveniles and be dealt with accordingly.26 The CRC Committee endorses this view and additionally makes clear that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice.27 This also applies to child soldiers and underage foreign terrorist fighters. Even if these two types primarily have a victim status, it does not mean that they are basically immunised from law enforcement. Juvenile returnees alleged of war crimes or crimes against humanity are to be held responsible in the juvenile justice system.28 Because of their age and their lack of maturity, educational, reintegrative and rehabilitative measures must however be in the foreground.29 Life imprisonment without the possibility of release or probation contradicts the idea 6 of societal reintegration.30 For this reason, such imprisonment is strictly prohibited under Article 37 lit. a CRC. In cases where national laws foresee the possibility to sentence children to lifelong imprisonment with the possibility of release or probation, the condi20 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 13. See also → Article 29 mn. 5. 21 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 13. 22 See OHCHR, Legislative History of the Convention on the Rights of the Child, Vol. II, 2007, p. 771. See also CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 29. 23 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 13. 24 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 39. 25 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1610. 26 See Committee of Ministers, Recommendation on the European Rules for Juvenile Offenders Subject to Sanctions or Measures, CM/Rec(2008)11, 5 November 2008, para. 17. 27 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, paras 37-38. 28 L Neumann, Kindersoldatentum 2.0 – klassische Kindersoldaten und minderjährige foreign fighters, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79 (2019), p. 881, at 916 et seq. See also → Article 39 mn. 3. 29 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 100-101; see also Security Council Resolution 2247 (2018), S/RES/2427 of 9 July 2018. Further see L Steinl, Kindersoldat*innen und Verantwortlichkeit für Völkerrechtsverbrechen: Narrative, Ambivalenzen und Grenzen des Völkerstrafrechts, Kritische Justiz 51 (2018), p. 45, at 52-56. 30 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 77.

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tions of juvenile justice procedure laid down in Article 40 para. 1 CRC must be observed. This entails that a child sentenced to life imprisonment shall receive education, treatment and care that serve the general purpose of release and reintegration into society; this also includes a regular review of the conditions of imprisonment.31 However, since the objectives of juvenile justice proceedings are difficult to achieve in regards to life imprisonment, the CRC Committee calls upon States Parties to abolish such imprisonment even when there is the possibility of release or probation.32 In addition, all criminal sentences handed down to children shall be regularly reviewed in respect to the possibility of release. This rule corresponds to Article 25 CRC, which provides that children who have been placed under State authority have the right to undergo a periodic review of the decision.33

III. Minimum Procedural Safeguards in Criminal Proceedings (Article 40 para. 2 CRC) Article 40 para. 2 CRC provides rights, safeguards and guarantees to ensure that children receive a fair trial in criminal proceedings. These rights and guarantees represent minimum standards to be further improved by States Parties with regard to children. 34 Article 40 para. 2 CRC contains an illustrative rather than exhaustive list of due process rights to which children are entitled. This fact is important, since a number of due process rights that are generally contained in other human rights treaties, such as the right to have adequate time and facilities to prepare a defence (see, e.g., Article 14 para. 3 lit. b ICCPR, Article 6 para. 3 lit. b ECHR), are not included in Article 40 CRC. The observance of the minimum requirements for a fair trial in Article 40 para. 2 CRC will thus not always be sufficient to satisfy the requirements of a fair trial and recourse has to be made to other human rights instruments, such as Article 14 ICCPR.35 8 Most of the procedural safeguards enshrined in Article 40 para. 2 CRC are not per se child-specific but apply to children as well as adults. The provisions which are specific to children are the trial in-camera principle, pursuant to Article 40 para. 2 lit. b (vii) CRC, which is important for protecting children’s privacy and personal development, and the particular role assigned to parents or legal guardians in Article 40 para. 2 lit. b (iii) CRC which aims at ensuring that children receive the protection of the adults important to them.36 The fact that Article 40 para. 2 CRC focuses generally on children’s development distinguishes it from other human rights conventions, e.g., from Article 14 ICCPR and Article 6 ECHR. Overall, Article 40 para. 2 CRC requires that States Parties should keep a steady balance between adapted, informal proceedings in court and the protection of the fundamental procedural rights of the child.37 7

CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 77. CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 77. See also → Article 37 mn. 8. 33 CRC Committee, General Comment No 10, CRC/C/GC/10, 2007, para. 77. See also → Article 25 mns. 3 et seq. 34 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 40; General Comment No. 24, CRC/C/GC/24, 2019, para. 38. 35 Similar assessment by J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1621. 36 A Daly/S Rap, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 299, at 302. 37 A Daly/S Rap, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 299, at 302 et seq. 31

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For the implementation of the rights set out in Article 40 para. 2 CRC, it is essential 9 that all persons involved in the child justice system are professionals with adequate training. They must be educated in regards to the physical, psychological, mental and social development of children and adolescents as well as in the needs of particularly vulnerable and marginalised groups of children, such as children with disabilities.38 They should be able to work in interdisciplinary teams.39 Furthermore, proceedings should be conducted in an atmosphere of understanding to allow the child to fully participate, for instance by developing child-friendly layouts of interviewing spaces and courts as well as removal of intimidating legal attire and adaptation of proceedings.40

1. Principle nulla poena, nullum crimen sine lege (Article 40 para. 2 lit. a CRC) The principle nulla poena, nullum crimen sine lege as set forth in Article 40 para. 2 10 lit. a CRC reiterates the content of the cardinal prohibition against retroactivity in criminal law and retrospective application of criminal offences, and specifies this prohibition for children.41 Thus, no child may be subject to criminal proceedings for a conduct which was not proscribed by national or international law at the time of its commission. The CRC Committee explains that no child must be charged with or sentenced under the penal law for acts or omissions which at the time they were committed were not prohibited under national or international law.42 States Parties that expand their criminal law provisions to combat international terrorism should ensure that those changes do not result in the retroactive or unintended punishment of children.43 Despite the lack of an express reference in the wording of the norm, no harsher punishment or heavier penalty may be imposed than the one applicable by the law at the time of the commission or omission of the act.44 However, if a law is amended after a criminal act has occurred, which prescribes a milder punishment or a lighter penalty, the child should benefit from this reduction.45 A limitation of Article 40 para. 2 lit. a CRC is its failure to include a prohibition of double jeopardy (ne bis in idem), in contrast to Article 14 para. 7 ICCPR, that, of course, also applies to children.46

2. Presumption of Innocence (Article 40 para. 2 lit. b [i] CRC) Article 40 para. 2 lit. b CRC standardises minimum guarantees in criminal proceed- 11 ings. This primarily includes the presumption of innocence pursuant to Article 40 para. 2 lit. b (i) CRC, according to which every child is to be presumed innocent until legal proof of guilt is established. The burden of proof lies not with the child, but with the prosecuting authority.47 The child must not be compelled to give testimony or confess guilt. The CRC Committee makes clear that the child’s silence must never be interpreted 38 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 40. See also, with more detail, CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 38-41. 39 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 39. 40 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 46. See also → Article 12 mn. 17. 41 G Van Bueren, The International Law on the Rights of the Child, 1995, p. 176 et seq. 42 CRC Committee, General Comment No 10, CRC/C/GC/10, 2007, para. 41. 43 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 42. 44 CRC Committee, General Comment No 10, CRC/C/GC/10, 2007, para. 40. 45 CRC Committee, General Comment No 10, CRC/C/GC/10, 2007, para. 40; General Comment No. 24, CRC/C/GC/24, 2019, para. 42. 46 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mn. 22, Article 14 mn. 138. See also → Article 40 mn. 34. 47 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 42.

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as evidence of guilt.48 Doubts about guilt or innocence must be evaluated to the benefit of the child concerned. The child may not be considered guilty until the allegations are proven beyond all reasonable doubt.49 In addition, the presumption of innocence also means that no party and authority involved in the proceedings may prejudice the child concerned. In practice, it is therefore necessary that all the parties involved in criminal proceedings are familiar with the development of children in general.50 Children may be easily considered suspicious because of their immaturity, lack of understanding or due to fear.51 Under no circumstances shall children be considered guilty without evidence.52

3. Right to Be Promptly Informed of the Charges (Article 40 para. 2 lit. b [ii] CRC) The obligation to provide prompt information on the charges and the right to assistance under Article 40 para. 2 lit. b (i) CRC is based on the idea that a fair trial is only possible if the person concerned can effectively participate in the proceedings. This also applies to children. In this respect, Article 40 para. 2 lit. b (i) CRC represents a lex specialis to Article 12 CRC.53 In order to be able to participate effectively in the proceedings, the child must acknowledge and understand the charges, matters, procedural options and the possible consequences, sanctions and penalties. Only by this broad understanding, the child will be able to make informed decisions about evidence, witnesses or measures imposed.54 The right to be properly informed is generally a crucial aspect of children’s participation in court proceedings.55 13 The information of the charges shall be given immediately and directly as soon as possible after the charges are made known to the child, i.e. at the time when the competent police authority, the prosecutor or the judge takes the initial action against the child.56 Even if the competent authority decides that the case is to proceed without a formal court procedure, the child must be duly informed of the allegations and charges.57 This applies particularly in regards to alternative or diversionary measures without resorting to judicial proceedings under Article 40 para. 3 lit. b CRC.58 In any case, the child must be informed about the conditions under which the process will be continued and under which he or she will be asked to express his or her views.59 The child should be instructed and prepared before a court hearing on what will be discussed, what the possible outcomes are, and more generally what the procedures in court will look like and who the participants will be.60 14 The information must be given in a language that the child understands. This requirement is not explicit in the text of Article 40 para. 2 lit. b (ii) CRC, but the CRC Committee has effectively implied this requirement into the provision, since otherwise 12

48 CRC Committee, Concluding Observations: United Kingdom, CRC/C/15/Add.34, 1995, para. 20; Costa Rica, CRC/C/CRI/CO/4, 2011, para. 83. 49 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 42. 50 See → Article 40 mn. 5. 51 See CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 43. 52 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 42. 53 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 219. See also → Article 12 mn. 38. 54 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 46. 55 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, paras 47, 48. 56 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 47; General Comment No. 24, CRC/C/GC/24, 2019, para. 47. 57 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 47. 58 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 13-14, 16. 59 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 25. 60 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 41, 134.

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the child’s enjoyment of the right to be promptly informed of charges would be ineffective and illusory.61 This means not only that a translation of the accusation into the child’s native language is necessary, but also that the formal legal jargon usually applied in such proceedings is avoided and that the information is instead delivered in a childfriendly format.62 If official documents are not written in a child-friendly manner, an oral explanation of the content is necessary.63 It is the responsibility of the authorities involved in the proceedings to ensure that the child understands the allegations and charges correctly. The responsibility for the child’s understanding of the proceedings shall not be passed on to the parents, legal guardians or the child’s lawyer.64 Furthermore, children in conflict with the law should be given the opportunity to be 15 heard directly, and not only through a representative, in any judicial or administrative proceedings and during the entire process, from the pre-trial stage until the execution of a sanction or measure.65 The CRC Committee recommends that the views of children in conflict with the law should be heard through a talk or dialogue, rather than a one-sided examination.66 The dialogue can best be held in an environment in which the child feels safe and respected.67 The opinion of the child, while not determinative, must be given due weight according to his or her age and level of maturity.68 It is also crucial that the decision-maker has to inform the child of the outcome of the process and explain how his or her views were considered, because this feedback is a guarantee that the views of the child are not only heard as a formality but are taken seriously.69 To ensure equality of arms, child suspects should be provided with legal or other ap- 16 propriate assistance in every phase of the proceedings. With regard to the active participation in the process, lawyers can contribute to the child’s understanding of the process, by providing him or her with explanations before and after the hearing. Nevertheless, Article 40 para. 2 lit. b (ii) CRC prescribes that every child involved in justice procedures should be guaranteed to have legal or other appropriate assistance in the preparation and presentation of his or her defences. Also, Article 40 para. 2 lit. b (iii) CRC states that every child suspect should have the case handled in the presence of legal or other appropriate assistance. This implies that the assistance to which the child is entitled does not necessarily have to be provided by a lawyer.70 However, the assistance must be appropriate in all cases. Other than legal counsels are suitable if they have sufficient knowledge of the various legal aspects of juvenile justice proceedings and are trained for dealing with juveniles who have come into conflict with the law. Such assistants may, for example, be social workers or para-legal professionals.71 States Parties shall be free to decide how the

61 See CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 47; General Comment No. 24, CRC/C/GC/24, 2019, para. 46. See also J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1625. 62 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 47. 63 CRC Committee, General Comment No 10, CRC/C/GC/10, 2007, para. 48. 64 CRC Committee, General Comment No. 10, CRC/C/GC10, 2007, para. 48; General Comment No. 24, CRC/C/GC/24, 2019, para. 48. 65 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 58; General Comment No. 10, CRC/C/GC/10, 2007, para. 44; General Comment No. 24, CRC/C/GC/24, 2019, para. 45. 66 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 43. 67 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, paras 23, 60. 68 See → Article 12 mn. 14. 69 CRC Committee, General Comment No. 12, CRC/C/GC/12, 2009, para. 45. 70 A Daly/S Rap, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 299, at 308. 71 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 49.

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assistance is offered; but it must be available to children free of charge.72 The child and his or her assistant must also be given sufficient time to prepare for the defence. Therefore, communication between the child and the assistant must be possible. Communication may be oral, written or electronic, but it must be possible in such a way that the principle of secrecy is respected.73 Despite the rather restrictive rules of Article 40 para. 2 lit. b (ii) CRC which do not necessarily include a legal representation for all children who are facing criminal charges, it is to be underlined that in Article 14 para. 3 lit. d ICCPR, the right to legal representation is a minimum guarantee in the criminal justice system for all persons. Therefore, the CRC Committee is right in insisting that this minimum guarantee of legal representation also applies to children – although this guarantee does not result from Article 40 para. 2 lit. b (ii) CRC itself.74 Children must not be provided less protection than international law guarantees for adults.75 Therefore, children in conflict with the law have the mandatory right to legal assistance. This is all the more so as Article 37 lit. d CRC explicitly prescribes that every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance. 76

4. Right to a Fair Hearing without Delay in the Presence of Parents (Article 40 para. 2 lit. b [iii] CRC) According to Article 40 para. 2 lit. b (iii) CRC, the child has the right to have his or her case decided without delay by a competent, independent and impartial judicial authority in a fair hearing according to the law. The phrase “competent, independent and impartial authority or judicial body” is similar to the phrase used in Article 37 lit. d CRC.77 The CRC Committee variously stresses the need for the full independence and impartially of the judiciary dealing with juveniles.78 As far as can be seen, the term “fair hearing according to the law” has not yet been explored by the CRC Committee. Reference can therefore be made to the efforts of the Human Rights Committee and the ECtHR which both explain that the concept of a fair hearing has to be interpreted broadly requiring a number of conditions such as equality of arms, respect for the principle of adversary proceedings, the right to inspect files, the right to be heard and the right to receive a reasoned decision.79 18 What is particularly decisive in juvenile justice proceedings is that States Parties shall ensure to have the matter determined without delay. This means that the process must start immediately and the decision must be done without delay. Only if the period between the accusation and the final judgment is as short as possible can the desired pedagogical effect of the measure occur and a social stigmatisation of the child be prevented.80 In order to achieve this objective, the time-limits in which the various procedural 17

72 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 49; General Comment No. 24, CRC/C/GC/24, 2019, para. 46, 51. 73 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 50. 74 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 49 et seq. 75 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 51. 76 Similarly, T Liefaard, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 279, at 289. 77 See → Article 37 mn. 28. 78 See, e.g., CRC Committee, Concluding Observations: Rwanda, CRC/C/RWA/CO/3-4, 2013, para. 62; China, CRC/C/CHN/CO/2, 2005, para. 92; Mongolia, CRC/C/15/Add.48, 1996, para. 29. 79 See, e.g., Human Rights Committee, Morael v. France, Communication No. 207/1986, CCPR/C/36/D/207/1985, 1989, para. 93; ECtHR, Judgment of 19 April 1993, No. 13942/88, para. 30 – Kraska v. Switzerland. For a fuller account see S Schmahl, Procedural Rights and Article 6 ECHR, in: S Kadelbach (ed.), 70 Years of Human Rights and the Rule of Law in Europe, 2021, forthcoming. 80 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 51.

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stages are to be concluded should be significantly shorter in criminal proceedings against children than corresponding periods during proceedings against adults.81 However, it is important that the human rights of the child concerned are respected despite the acceleration of proceedings. Even if the proceedings are carried out without delay, an appropriate assistant to the child must be present. This is expressly emphasised in Article 40 para. 2 lit. b (iii) CRC. The presence of an assistant must not be restricted to the proceedings before the court, but must be ensured at every stage of the investigation, including before the police or other competent authorities.82 Furthermore, a child-friendly version of the judgment should be made available. This could be a letter written by the judge and directed at the child, explaining the decision, or a slightly shorter version of the original judgment, written with less legal or professional jargon.83 In addition, Article 40 para. 2 lit. b (iii) CRC stipulates the fundamental presence of 19 the parents or other legal guardians or genuine caregivers. They shall support and assist the child psychologically and emotionally throughout the proceedings.84 This requirement does not mean that their presence should be used to act in defence of the child or be otherwise formally involved in the decision-making process. However, the simple presence of parents or legal guardians or other genuine caregivers is not enough in order to suffice the right in Article 40 para. 2 lit. b (iii) CRC.85 They should rather be involved to the maximum extent possible in the proceedings against the child, because this involvement is deemed to contribute to an effective response against the child’s infringement of the law.86 For instance, the child should generally not sit in handcuffs in front of or in long distance to family but be allowed to sit next to his or her parents, caregivers and lawyers in court, so he or she can experience the emotional support from them.87 In order to ensure effective participation of parents or other caregivers, they must be informed as soon as possible about the situation of their child.88 On the other hand, the presence of parents or legal guardians can be excluded or restricted for the benefit and the best interests of the child. Such exclusion requires the child’s request or consent, although it is the court or the competent authority that finally decides on the presence or absence of parents or legal representatives.89 The involvement of parents does, of course, not mean that they should be responsible for the actions of their children. Civil liability claims against the legal representatives for damages caused by a younger child may be appropriate in exceptional cases,90 but criminal liability for actions of the child may not be accused to parents or legal representatives. In order to ensure that the child may realise his or her right to have his or her parents present, the CRC Committee calls upon States Parties to stipulate this right in statute law.91

CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 52. CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 52. 83 N Peleg, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 135, at 151. 84 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 57. 85 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 53. 86 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 54. 87 See A Daly/S Rap, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 299, at 305. See also CRC Committee, Concluding Observations: Republic of Korea, CRC/C/KOR/CO/ 5-6, 2019, para. 46 j. 88 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 54. 89 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 53; General Comment No. 24, CRC/C/GC/24, 2019, para. 56. 90 CRC Committee, General Comment No. 10, CRC/C/CG/10, 2007, para. 55. 91 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 54. 81

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5. Right against Self-Incrimination and Right to Cross-Examination of Witnesses (Article 40 para. 2 lit. b [iv] CRC) 20

A further minimum guarantee within criminal proceedings is established by Article 40 para. 2 lit. b (iv) CRC. A child who is suspected or accused of a violation of criminal law cannot be forced to testify as a witness or to plead guilty. Especially torture may not be used to obtain a confession. The CRC Committee has commented that it is self-evident that confessions elicited through the use of torture or cruel, inhuman or degrading treatment will be incompatible not only with regard to Article 40 para. 2 lit. b CRC but also blatantly infringe the absolute prohibition of torture in Article 37 lit. a CRC. 92 Confessions extracted in this way are not permitted as evidence.93 Other means which are less violent, but which force, coerce, compel or lead the child to confess guilt through physical or mental pressure are also an infringement of the child’s right to protection against compulsory self-incrimination.94 Thus, the development of the child, the nature and duration of questioning, the lack of understanding and the child’s fear of unknown consequences or of a prison sentence can lead to a false confession. The methods of questioning and interrogation must therefore be verifiable by an independent body in order to ensure that the child’s statements are voluntary and not forced and to avoid interrogation techniques that result in coerced or unreliable confessions or testimonies. 95 Furthermore, the child must be able to request the presence of his or her parents, guardians or genuine caregivers during questioning.96 In addition, the specialists involved in questioning shall be generally trained to avoid interrogation methods and practices which typically lead to children giving forced or untruthful statements.97 According to Article 40 para. 2 lit. b (iv) CRC, the children concerned must also be given the opportunity to question, or to have questioned, prosecution witnesses and to have such witnesses appear and be examined before the court. The right to examine witnesses is an essential component of the principle of equality of arms, which must be observed by the authorities during the youth criminal proceedings as a whole.98

6. Right to Appeal (Article 40 para. 2 lit. b [v] CRC) 21

According to Article 40 para. 2 lit. b (v) CRC, a child convicted of a crime has the right to have both the decision and any measures imposed in consequence thereof reviewed by a higher judicial authority. The appellate body must meet the same standards and requirements as the authority which has handled the case in the first instance. The CRC Committee has commented that an appeal must be decided by a higher, competent, independent and impartial authority or judicial body established by law.99 The right to appeal must not be limited to those who are investigating serious accusations against a

92 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 58; General Comment No. 24, CRC/C/GC/24, 2019, para. 58. See also → Article 37 mn. 5. 93 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 56. 94 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 57; General Comment No. 24, CRC/C/GC/24, 2019, para. 59. 95 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 58. 96 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 58; General Comment No. 24, CRC/C/GC/24, 2019, para. 60. 97 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 58; General Comment No. 24, CRC/C/GC/24, 2019, para. 60. 98 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 59; General Comment No. 24, CRC/C/GC/24, 2019, para. 61. For more detail see J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1639. 99 CRC Committee, General Comment No. 10, CRC/C/GC10, 2007, para. 60.

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child.100 The right to appeal has been the subject of several reservations by States Parties that wish to apply this right only to more serious offences or sentences of imprisonment.101 The CRC Committee urges the States Parties to withdraw these reservations on the basis that the article should provide every adjudicated child with the right to appeal.102 Furthermore, access to justice, in the opinion of the CRC Committee, requires a broader interpretation, allowing reviews and appeals on any procedural or substantive misdirection, and ensuring that effective remedies are available.103

7. Right to an Interpreter (Article 40 para. 2 lit. b [vi] CRC) The right to the cost-free commissioning of an interpreter according to Article 40 22 para. 2 lit. b (vi) CRC is intended to duplicate Article 14 para. 3 lit. f ICCPR.104 This right is not limited to stages directly connected to the court proceedings, but extends rather to all stages of the juvenile justice process.105 The interpreter must be specifically trained in working with children, since children often understand and use their mother tongue differently to adults.106 If the child does not fully understand the questions posed because he or she does not understand or speak the language of the hearing, the child’s right to a fair trial may be impaired. Therefore, with regards to Article 40 para. 2 lit. b (vi) CRC, children of foreign origin, children with language disabilities or other impairments which prevent them from understanding or speaking, should be given special care. In particular, with regard to Article 23 CRC, care must be taken to ensure that children with disabilities receive adequate and effective support from trained staff, such as sign language interpreters.107 On the other hand, an interpreter must not be provided free of charge to a child who is of foreign origin, but who understands and speaks the language of proceedings.108

8. Right to Privacy (Article 40 para. 2 lit. b [vii] CRC) Finally, the child is entitled to have his or her privacy fully respected in criminal pro- 23 ceedings. Article 40 para. 2 lit. b. (vii) CRC functions in connection with the right enshrined in Article 16 CRC109 and extends it to all procedural stages of criminal proceedings. It covers the entire period between the initial contact with law enforcement authorities up until the final decision, or release from supervision, custody or deprivation of liberty.110 The child’s right to privacy means, above all, that disadvantages which may arise as a result of inappropriate involvement of the public must be avoided. For example, information which makes it possible to identify the child may not be revealed.111 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 60. See J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1639, with further references. 102 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 61; see also CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 63. 103 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 62. 104 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1640. 105 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 62. 106 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 62; General Comment No. 24, CRC/C/GC/24, 2019, paras 64-65. 107 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 63. 108 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 62. 109 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 66. See also → Article 16 mns. 1 et seq. 110 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 64. 111 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 67. 100

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This prohibition prevents the endangerment of (subsequent) stigmatisation and the possibility that a child’s potential and prospective access to education, work, accommodation and safety might be limited by the disclosure of his or her identity.112 The CRC Committee is of the opinion that journalists and members of the media who violate a child’s right to privacy in criminal proceedings should be subject to disciplinary measures, and if necessary, for instance in case of repeated infringements, they should even be subject to criminal sanctions.113 24 In order to protect the privacy of the child, many States have legal provisions stipulating that court proceedings are non-public and conducted behind closed doors. However, this does not mean that experts, prosecutors, lawyers and other persons who have been admitted by the court are excluded from the proceedings.114 But the in-camera principle assures that children in conflict with the law proves positive for the participation of the child.115 On the other hand, the purpose of a public hearing is to protect litigants from the administration of justice in secret with no public scrutiny.116 Thus, the presence of media is generally considered crucial by the ECtHR to ensure transparency and accountability in the administration of justice.117 The CRC Committee’s stance differs markedly on this issue. It recommends that children’s proceedings be private, with extremely limited exceptions (for those directly involved in the investigation and adjudication of the case) that should be clearly stated in the law and only take place after a written decision by the court.118 The child must be given the opportunity to appeal against the decision of the court.119 It is questionable whether the CRC Committee’s insistence on private proceedings can be justified, given that this position conflicts with the general presumption under international law in favour of open and public hearings.120 Closed proceedings present a risk to a child’s right to fair trial, and children, no less than adults, are entitled to due process rights under international law.121 A different conclusion can only be drawn with regard to the CRC Committee’s view that the judgment shall also be pronounced only in a manner which does not divulge the identity of the child.122 This position is consistent with the general requirements under international law to protect the juvenile’s anonymity. The CRC Committee recommends that States Parties introduce appropriate legal provisions.123 In addition to the protection of the child’s privacy, the CRC Committee also requires the States Parties to keep records of children strictly confidential and to automatically delete these records in the criminal

CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 64. CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 64. 114 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 65. 115 A Daly/S Rap, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 299, at 305 et seq. 116 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1642. 117 See S Schmahl, Procedural Rights and Article 6 ECHR, in: S Kadelbach (ed.), 70 Years of Human Rights and the Rule of Law in Europe, 2021, forthcoming. 118 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, paras 65-66; General Comment No. 24, CRC/C/GC/24, 2019, para. 67. 119 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 65. 120 Rightly so, J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1643. Dissenting: W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 40.17. 121 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1643. 122 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 66. See also CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 68. 123 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 66. 112

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register.124 The attainment of 18 years of age is considered a possible prerequisite for the automatic deletion or removal of children’s criminal records. In its General Comment No. 10 (2007), the CRC Committee however declares that in cases of serious criminality, additional conditions, such as a lack of renewed criminal suspiciousness, may well be established in domestic law.125 Thus, the CRC Committee favoured the default position that children’s criminal records may be disclosed under certain, however restrictive, conditions. Yet, the CRC Committee has altered its position in General Comment No. 24 (2019) by stating that any publication causes ongoing stigmatisation which impedes the child’s reintegration and assumption of a constructive role in society. States Parties should ensure that the general rule is lifelong privacy protection of children pertaining to all types of media.126

IV. Child-Friendly Criminal Justice (Article 40 para. 3 CRC) The need to provide special procedures when dealing with child offenders under 25 Article 40 para. 3 CRC was first recognised by Article 14 para. 4 ICCPR but is also strongly marked by the so-called (non-binding) Beijing Principles adopted by the UN General Assembly in 1985,127 which provide that efforts shall be made to establish, in each national jurisdiction, a set of laws, rules and provisions specifically applicable to juvenile offenders.128 States Parties shall seek to promote the establishment of law, procedures, authorities and institutions specifically applicable to children in conflict with the law. However, the concrete realisation of the principles set out in Article 40 para. 3 CRC is left to the discretion of States Parties. In their general criminal and procedural laws, they may introduce specific sections with regard to children or adopt separate legislation on juvenile justice procedures.129 Similarly, juvenile courts can be organised either as independent, separate units or as part of existing regional or district courts.130 This distinguishes Article 40 para. 3 CRC from its counterpart in Article 5 para. 5 ACHR, which proclaims the establishment of “specialised tribunals” for minors.131However, also under Article 40 para. 3 CRC, the States Parties have to appoint specialised judges or magistrates for dealing with cases of juvenile justice. States Parties shall ensure that there are employees in the police, the judiciary, the court system and the public prosecutor’s office as well as legal assistants who are trained in dealing with children.132 In addition, the inter-agency cooperation of the authorities involved in the

CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 67 et seq. CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, paras 66-67. 126 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 70. 127 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Principles”), UN General Assembly Resolution 40/33, A/RES/40/33, 19 November 1985. See also → Article 37 mn. 20. 128 See S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 699-700. 129 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 91. 130 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 93; General Comment No. 24, CRC/C/GC/24, 2019, para. 107. 131 See T Liefaard, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 279, at 284. 132 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 92; General Comment No. 24, CRC/C/GC/24, 2019, para. 106. 124

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proceedings and a multidisciplinary approach are to be promoted.133 NGOs, which play an important role in the prevention of juvenile delinquency as well as in the handling of juvenile justice, should also be included in the development and implementation of the juvenile criminal law.134

1. Minimum Age of Criminal Responsibility (Article 40 para. 3 lit. a CRC) 26

Age has historically been the first determinant of a child’s capacity to commit a criminal offence, and it is still favoured in international law.135 Also, Article 40 para. 3 lit. a CRC affirms this requirement. Although States Parties have discretion in the determination of the age of criminal responsibility, it is limited by the fact that they must set a minimum age for criminal responsibility. The setting of a minimum age means that delinquent children below this age threshold cannot be formally prosecuted or otherwise held liable under criminal law. On the other hand, children who have reached the minimum age defined by national law or who are older but have not yet reached 18 years of age (and therefore fall within the scope of the CRC, see Article 1 CRC) may be held criminally responsible. However, the whole proceedings must comply with the principles and values of the CRC.136 The minimum age shall not be set too low and an already existing minimum age should be raised to recognised international standards. For instance, the laws of Sri Lanka and of Tonga set the age of criminal responsibility at the age of eight or seven years, respectively, and the CRC Committee is seriously concerned about these extremely low standards.137 Already in General Comment No. 10 (2007) the CRC Committee outlined that a minimum age under 12 years is no longer internationally recognised.138 In its most recent General Comment No. 24 (2019), which replaces the statements in the previous General Comment No. 10 (2007),139 the CRC Committee however encourages States Parties to take note of recent scientific findings in the area of neuroscience, and to increase the minimum age of criminal responsibility to at least 14 years of age. 140 Moreover, the developmental and neuroscience evidence indicates that adolescent brains continue to mature even beyond the teenage years, affecting certain kinds of decision-making. Therefore, the CRC Committee even commends States Parties that have a higher minimum age, for instance, 15 or 16 years.141 Exceptions to the minimum age limit, for example in cases of serious crimes, are not permitted. 142 Such rules and 133 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 92; CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 109. 134 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 95; General Comment No. 24, CRC/C/GC/24, 2019, para. 110. 135 See J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1652. 136 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 31. 137 CRC Committee, Concluding Observations: Sri Lanka, CRC/C/LKA/CO/5-6, 2018, para. 45; Tonga, CRC/C/TON/CO/1, 2019, para. 63. 138 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 32. See also the Standard Minimum Rules on the Administration of Youth Justice (“Beijing Principles”), UN General Assembly Resolution 40/33, A/RES/40/33, 19 November 1985, p. 3, para. 4.1, as well as UN General Assembly Resolution 45/112 (“Riyadh Guidelines”), A/RES/45/112, 14 December 1990. – A different opinion is however expressed by ECtHR, Judgment of 16 December 1999, No. 24888/94, paras 72 et seq., 86 – V v. The United Kingdom; Judgment of 16 December 1999, No. 24724/94, para. 84 – T v. The United Kingdom: criminal responsibility starting at the age of 10 years does not violate Article 6 ECHR. 139 See CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 1. 140 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 21-22. 141 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 22. 142 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 34; General Comment No. 24, CRC/C/GC/24, 2019, para. 25.

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practices are usually created to respond to public pressure in cases of a child being accused of having committed a serious offence and are not based on a rational understanding of children’s development.143 The CRC Committee also condemns the use of two minimum ages which leave the discretion of the assessment of capacity to the court or judge as not only confusing, but also as inappropriate, since it may result in discriminatory practices.144 If the age of the child concerned cannot be specified, because there is no proof of a child’s age available,145 the child should not be criminally prosecuted or be held criminally responsible, according to the principle of the benefit of the doubt and the doctrine of in dubio pro reo.146 States Parties that set a lower age than 12 years or that have lowered the minimum age of criminal responsibility during the last years (e.g., from 16 to 14 years) have been heavily criticised for not complying with the Convention.147 In the opinion of the CRC Committee, the maximum age to which children are to be 27 treated according to juvenile law is not less than 18 years of age.148 For instance, national laws must not stipulate the application of adult law to 17-year-old juveniles. The child justice system should rather apply to all children above the age of criminal responsibility but below the age of 18 years at the time of the commission of the offence. 149 On the other hand, the CRC Committee considers it permitted for States Parties to exempt young adults up to 21 years of age from the application of adult law and to generally or exceptionally subject them to juvenile criminal law.150 This approach is in keeping with the developmental and neuroscience evidence that shows that brain development continues into the early 20 s.151 Furthermore, the CRC Committee urges the States Parties to ensure that children with developmental delays or neurodevelopmental disorders or disabilities (such as autism spectrum disorders or foetal alcohol spectrum disorders) should not be in the (child or adult) justice system at all, even if they have reached the minimum age of criminal responsibility. If not automatically excluded, such children should, at least, be individually assessed.152 Finally, the CRC Committee observes that early intervention for children who are below the minimum age of criminal responsibility requires child-friendly and multidisciplinary responses to the first signs of behaviour that would, if the child were above the minimum age of criminal responsibility, be considered a criminal offence. The CRC Committee therefore recommends the development of evidence-based intervention programmes that reflect not only the multiple psychosocial causes of such behaviour, but also the protective factors that may strengthen resilience.153

CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 25. See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 30; General Comment No. 24, CRC/C/GC/24, 2019, paras 26-27. See also CRC Committee, Concluding Observations: Malta, CRC/C/MLT/CO/3-6, 2019, para. 44; Republic of Korea, CRC/C/KOR/CO/5-6, 2019, para. 46 a. 145 As regards age-assessment procedures see → Article 1 mns. 10 et seq. 146 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 35; General Comment No. 24, CRC/C/GC/24, 2019, paras 24, 34. 147 See CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/4, 2012, para. 82; United Kingdom, CRC/C/GBR/CO/5, 2016, para. 78; Japan, CRC/C/JPN/CO/4-5, 2019, para. 44; Belarus, CRC/C/BLR/CO/5-6, 2020, para. 46. 148 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 35. See also CRC Committee, Concluding Observations: Japan, CRC/C/JPN/CO/4-5, 2019, paras 44-45. 149 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 29-31. 150 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 38. 151 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 32. 152 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 28. 153 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 11. 143

144

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[Children in Criminal Law and Criminal Proceedings]

2. Extrajudicial, Diversionary Measures (Article 40 para. 3 lit. b CRC) Principally, a State can deal with children who are suspected, accused or convicted of violating criminal law in two ways. On the one hand, judicial proceedings can be instituted against the child; on the other hand, the State can apply alternative measures which do not require judicial proceedings. In line with Rule 11 of the Beijing Principles, the CRC Committee considers that in most cases in which children are in conflict with the law, such alternative diversionary measures, as listed in Article 40 para. 3 lit. b CRC, should be applied, because the majority of offences committed by children do not represent serious offences, but only minor cases such as shoplifting, trespassing or property offences involving limited damage.154 In any event, the decision to initiate criminal proceedings against a child shall not automatically lead to a conviction through a court proceeding.155 Rather, the competent authorities must first try to find an appropriate solution by means of other, alternative interventions that avoid resorting to judicial proceedings.156 In addition to avoiding stigmatisation and criminal records, this alternative, pedagogical approach apparently yields good results for children and has proved to be cost-effective and congruent with public safety.157 However, also in the context of extrajudicial measures, it is of paramount importance that the guarantees and safeguards for a fair hearing stipulated in Article 40 paras 1 and 2 CRC are observed. Accordingly, in extrajudicial circumstances a child must, for instance, be assigned with an appropriate assistant.158 Also, caution must be exercised to ensure that the existence of diversionary measures is not interpreted to mean that children must never be punished or held accountable for their actions. There also remains an obligation on States to ensure effective protection of the rights of other persons from threats that may emanate from children. Thus, the overall will always have to involve a balancing exercise between the divergent interests at stake.159 29 Nevertheless, the CRC Committee strongly urges the States Parties to integrate diversionary measures into their national system of child and juvenile justice.160 It is left to the discretion of each State as regards the exact nature and content of these non-court-based interventions, subject to the caveat that such measures are appropriate and consistent with the rights of the child.161 Examples of diversionary measures include community-based programmes such as community services, supervision and guidance by social workers or probation officers, family or group conferencing, offender-victim compensation procedures, or other forms of restorative justice. 162 For instance, family or group conferencing usually involves a meeting with the child offender, his or her family or caregivers, the victim and other significant persons, in order to forge a negotiated 28

154 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 24; General Comment No. 24, CRC/C/GC/24, 2019, paras 12-14. See also CRC Committee, Concluding Observations: Guinea, CRC/C/GIN/CO/3-6, 2019, paras 45-46. 155 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 68. 156 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 68. 157 See CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 15. See also T Liefaard, in: J Todres/SM King (eds.), The Oxford Handbook of Children’s Rights Law, 2020, p. 279, at 286. 158 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 68; CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, paras 16 et seq. 159 Rightly so, J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1649. 160 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 24; General Comment No. 24, CRC/C/GC/24, 2019, para. 16. 161 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 27; General Comment No. 24, CRC/C/GC/24, 2019, para. 17. 162 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 27; General Comment No. 24, CRC/C/GC/24, 2019, para. 17.

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and collaborative agreement regarding how best to respond to the child’s criminal conduct.163 Yet, States Parties are called upon to ensure that any diversionary measure which is established as alternative to a “normal” criminal proceeding, remains under legal scrutiny.164 First of all, such measures shall only be applied if there is compelling evidence that the child has committed the offence. Secondly, the child must give his or her consent to the alternative measure voluntarily and in writing (or declared for recording). Such consent shall be based on the appropriate, prompt and specific information given to the child on the nature, content and duration of the measure and on the consequences of its non-implementation. Particularly in regards to children under 16 years of age, consent should also be obtained from parents of the child to ensure their participation in the procedure. Through the participation of the children and their parents, which is also important with regards to Article 12 CRC, the chance of the adopted alternative measures being successful can be increased. Thirdly, any decision taken by public authorities in non-court, alternative measures must be capable of being reviewed, and this review shall be conducted in a way which allows the child concerned to obtain legal or other appropriate support. Finally, the proceedings against the child must be definitively concluded by the alternative measure. For administrative purposes, it is permissible to create confidential files on diversionary measures. However, they must not be regarded as criminal records. The data collected should be accessible exclusively to the competent authorities and only for a limited period of time.

V. Measures to Ensure the Well-Being of Children in Criminal Proceedings (Article 40 para. 4 CRC) Whereas the focus of Article 40 para. 3 CRC is on diverting children from judicial 30 proceedings, Article 40 para. 4 CRC is concerned with alternatives to institutional care after a child has been found guilty of infringing the criminal law.165 It contains a nonexhaustive list of alternatives to the deprivation of liberty in order to assure that imprisonment or institutional care is used only as a last resort and only for the shortest possible time in accordance with the requirements of Article 37 lit. b CRC.166 The list in Article 40 para. 4 CRC is drawn from Rule 18 of the Beijing Principles and includes care, guidance and supervision orders, counselling, probation, foster care, education and vocational training programmes. The CRC Committee encourages States Parties to develop and implement these listed alternatives to institutional care, by adjusting them to their own culture and tradition.167 Physical punishment or forced labour as alternative mea-

163 For more detail see J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1655. 164 On the following points see: CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 27. Almost identical statements are to found in: CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 18 lit. a-f. 165 J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1658. 166 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 70. See also CRC Committee, Concluding Observations: Germany, CRC/C/15/Add.226, 2004, paras 60 et seq. 167 See CRC Committee, Concluding Observations: Albania, CRC/C/ALB/CO/2-4, 2012, para. 85; Spain, CRC/C/ESO/CO/3-4, 2010, para. 64; Germany, CRC/C/DEU/CO/3-4, 2014, para. 75. See also CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 73.

537

Art. 40

[Children in Criminal Law and Criminal Proceedings]

sures to detention for child offenders are however not permitted under the Convention. On the contrary: they clearly violate the standards set out in Article 37 lit. a CRC. 168 31 Article 40 para. 4 CRC further requires that any alternative to institutionalisation be used only in a manner appropriate to the child’s well-being and proportionate to the circumstances and the seriousness of the offence. The age, cognitive ability, lesser culpability and specific needs of the child have to be taken into account in regards to the question of how to react to a proven offence without neglecting the medium- and long-term needs of public security.169 A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in Article 40 CRC.170 Even in cases involving severe offences, the CRC Committee suggests that although considerations of public safety are relevant, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his or her reintegration into society.171 Such a position is however inappropriate, since it elevates a child’s interest to the paramount consideration in sentencing decisions, when neither Article 40 nor Article 3 CRC support this approach.172 In that regard, the CRC Committee’s is acting ultra vires.

VI. Embedding of Article 40 CRC into the System of International Human Rights Protection Many of the guarantees established in Article 40 para. 2 CRC can also be found in Article 14 ICCPR. This applies, for example, to Article 14 para. 3 lit. g ICCPR, the guarantee of which is also contained in Article 40 para. 2 lit. b (iv) CRC. The right to review decisions taken under Article 40 para. 2 lit. b (v) CRC is similar to the right enshrined in Article 14 para. 5 ICCPR.173 The same applies to the procedural rights under Article 6 ECHR.174 However, since Article 6 ECHR grants protection through and not against a judge, the Contracting States of the ECHR are not obliged to permit an appeal nor to establish courts of appeal or of cassation.175 Yet, if States do provide for courts of appeal, Article 6 ECHR also applies to proceedings before these courts.176 33 Some of the rules set out in Article 40 CRC are novelties in international human rights law.177 These include Article 40 para. 3 lit. a CRC which prescribes the obligation to fix a minimum age of criminal responsibility and Article 40 para. 1 CRC which specifically protects children’s dignity as a fundamental principle in the criminal justice system. Article 40 para. 3 CRC, which addresses the establishment of a child-friendly judi32

168 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 70. See also → Article 37 mn. 5. 169 CRC Committee, General Comment No. 10, CRC/C/GC10, 2007, paras 70-71. 170 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 71; General Comment No. 24, CRC/C/GC/24, 2019, para. 76. 171 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 71; General Comment No. 24, CRC/C/GC/24, 2019, para. 76. 172 Correctly so, J Tobin/C Read, Article 40, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1598, at 1659. 173 See CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 40. 174 See ECtHR, Judgment of 3 May 2001, No. 31827/96, para. 64 – J.B. v. Switzerland; Judgment of 29 June 2007, Nos. 15809/02 and 25624/02, para. 55 - O’Halloran and Francis v. The United Kingdom. 175 There are only minor exceptions to this rule, see ECtHR, Decision of 29 September 2009, No. 5643/07 – Jung v. Germany. 176 ECtHR, Judgment of 25 July 2002, No. 54210/00, paras 90 et seq. – Papon v. France. 177 See G Van Bueren, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 40, 2005, Article 40, p. 7.

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Art. 40

cial system, is also an innovative extension of the rights of the child compared to other universal human rights treaties. According to Article 14 para. 4 ICCPR, States Parties are merely obliged to conduct the proceedings against juveniles in a manner which corresponds to their age and promotes their reintegration.178 On the other hand, Article 40 CRC remains, in some respects, behind the achieve- 34 ments of other regional or universal agreements.179 Thus, the formulation in Article 40 para. 3 CRC, according to which the States Parties must merely seek to create childfriendly facilities, is insufficient in comparison to Article 5 para. 5 ACHR. Unlike Article 40 para. 3 CRC, Article 5 para. 5 ACHR creates a concrete obligation that proceedings against accused children must be conducted before special (child-friendly) courts. Article 40 CRC also omits a prohibition of double jeopardy (ne bis in idem), as regulated in Article 14 para. 7 ICCPR. The same applies to the compensation rule in cases of misjudgment pursuant to Article 14 para. 6 ICCPR. Finally, the prohibition of imposing no more a serious punishment or penalty than the one that was applicable at the time the crime was committed, as provided for in Article 15 para. 1, sentence 2 ICCPR, is not expressly mentioned in the CRC, but is merely incorporated by the CRC Committee through its interpretation of Article 40 para. 2 lit. a CRC. 180 This fact is not conducive to legal certainty.181 It should also be considered that the question of whether a penalty is more severe or lenient, does not pose any problems as long as the same type of punishment is involved. 182 However, in the case of different types of punishment or penalty, the subjective perception of the person concerned must also be taken into account, since, for instance, some defendants may consider a two-week stay in prison to be less serious than a considerable fine. Whether Article 15 ICCPR or Article 40 para. 2 lit. a CRC are violated in such a case can only be decided by considering all relevant circumstances of the specific case.183 Although not legally binding, the interpretation of Article 40 CRC is strongly influ- 35 enced by the so-called Beijing Principles. These principles are the UN Standard Minimum Rules on the Administration of Youth Justice, adopted by a UN General Assembly resolution in 1985.184 The “Beijing Principles” are further concretised by the (equally non-binding) “Riyadh Guidelines” of the UN General Assembly of 1990185 and the “Havana Rules” of the UN General Assembly of the same year.186 All these non-binding rules can be seen as a framework model for national youth justice systems.187 The CRC Committee repeatedly calls on States Parties to implement the rules. 188 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 14 mn. 112. G Van Bueren, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 40, 2005, Article 40, p. 8 et seq. See also W Vandenhole/GE Türkelli/ S Lembrechts, Children’s Rights, 2019, mn. 40.09. 180 See → Article 40 mn. 10. 181 S Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 1999, p. 685. 182 Similarly, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 15 mn. 14. 183 Ibid. 184 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Principles”), UN General Assembly Resolution 40/33, A/RES/40/33, 19 November 1985. 185 United Nations Guidelines for the Prevention of Juvenile Delinquency (“Riyadh Guidelines”), UN General Assembly Resolution 45/112, A/RES/45/112, 14 December 1990. 186 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), UN General Assembly Resolution 45/113, A/RES/45/113, 14 December 1990. 187 For a fuller account see G Van Bueren, Child-oriented Justice. An International Challenge for Europe, International Journal of Law and Family 6 (1992), p. 381-399. See also A Daly/S Rap, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 299, at 302. 188 See CRC Committee, Concluding Observations: France, CRC/C/FRA/CO/4, 2009, para. 97; Slovakia, CRC/S/SVK/CO2, 2007, para. 68; New Zealand, CRC/C/NZL/CO/3-4, 2011, para. 56. See also 178

179

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[Children in Criminal Law and Criminal Proceedings]

On the regional level, the CoE Guidelines on Child-friendly Justice189 serve as a further interpretative tool and were explicitly endorsed by the Parliamentary Assembly of the Council of Europe in June 2014.190 The Guidelines refer basically to the case-law of the ECtHR, which in recent decades has proved to be a child-friendly force, particularly in the interpretation of Article 6 ECHR.191 Thus, Article 6 ECHR requires that criminal proceedings against children take fully into account their age, maturity, and intellectual and emotional capacity.192 In the cases of T and V v. The United Kingdom (1999), the ECtHR maintained the view that the formality and ritual of the Crown Court in the United Kingdom must at times have seemed incomprehensible and intimidating for children aged 11 years.193 The suspects were unable to participate effectively in the criminal proceedings and were denied a fair hearing.194 For this reason, accused children must be represented by an experienced defender, including a social worker.195 In addition, the procedures must be designed for children and adolescents in order to avoid inappropriate intimidating effects.196 The child suspect should be able to form a general understanding of the nature of the process, the influence of his or her appearance and attitude in court on the judges, and the outcome of the case and the consequences of a possible sanction or measure.197 The CoE Guidelines provide guidance in many of these fields of child-friendly justice. They can be qualified as a soft law instrument only, but since they build on principles already to be found in the case-law of the ECtHR on the protection of juvenile offenders in criminal proceedings, they are of enormous practical importance and authoritative weight.198 For instance, the EU Directive 2016/800 on Procedural Safeguards for Children Suspected or Accused in Criminal Proceedings is modelled on the CoE Guidelines and contains various child-specific provisions.199 Article 16 of the Directive emphasises that children should be present and enabled to participate effectively in the trial and be treated in a manner appropriate to their age, maturity and needs. 37 Furthermore, Article 6 ECHR authorises the exclusion of the public in the interests of juveniles. For instance, the interest of protecting minors can justify the fact that a court proceeding is not public if it is assumed that the child will be exposed to particular psychological pressure because he or she has to testify before a larger audience. 200 36

CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007, para. 4; General Comment No. 8; CRC/C/GC/8, 2007, para. 38. 189 CoE Committee of Ministers, 1098th Meeting, 17 November 2010, Annex 6, III.1. 190 PACE Res. 2010(2014) on child-friendly juvenile justice, 27 June 2014. 191 See CoE Committee of Ministers, 1098th Meeting, 17 November 2010, Annex 6, Preamble, 3 rd and 4th Recitals, III. 1. 192 ECtHR, Judgment of 16 December 1999, No. 24724/94, paras 84 et seq. – T v. The United Kingdom; Judgment of 15 June 2004, No. 60958/00, paras 28 et seq. – S.C. v. The United Kingdom. In a similar vein, see also Article 5 of Directive 2013/48/EU, OJ EU 2013, No. L 294, p. 1. 193 ECtHR, Judgment of 16 December 1999, No. 24724/94, para. 86 – T v. The United Kingdom; Judgment of 16 December 1999, No. 24888/94, para. 88 – V v. The United Kingdom. 194 ECtHR, Judgment of 16 December 1999, No. 24724/94, para. 89 – T v. The United Kingdom. 195 ECtHR, Judgment of 23 February 1994, No 16757/90, para. 30 – Stanford v. The United Kingdom; Judgment of 15 June 2004, No. 60985/00, para. 35 – S.C. v. The United Kingdom. 196 ECtHR, Judgment of 16 December 1999, No. 24888/94, paras 87 et seq. – V v. The United Kingdom; Judgment of 15 June 2004, No. 60985/00, paras 29 et seq. – S.C. v. The United Kingdom. 197 ECtHR, Judgment of 16 December 1999, No. 24888/94, para. 86 – V v. The United Kingdom; Judgment of 15 June 2004, No. 60985/00, para. 29 – S.C. v. The United Kingdom. 198 For more detail see T Liefaard/U Kilkelly, Child-friendly Justice: Past, Present and Future, in: B Goldson (ed.), Juvenile Justice in Europe: Past, Present and Future, 2018. 199 Directive 2016/800/EU, OJ EU 2016, No L 132, p 1. 200 See C Grabenwarter/K Pabel, Europäische Menschenrechtskonvention, 6 th edn. 2016, § 24 mn. 99; S Schmahl, Report on Child-Friendly Justice: Existing International and European Standards, in: Council

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Art. 41

[Other Protective Provisions]

This protection from psychological pressure is closely related to the interest in judicial truth-finding, since especially in the case of juvenile witnesses, the larger audience may not increase the pressure to reveal the truth, but in contrast may reduce the willingness or the capacity of the juvenile to tell the truth.201 The exclusion of the public can also follow the objective of concealing the identity of the juvenile accused in order to support his or her prospective personal development.202 Finally, the ECtHR recognises a lifelong deprivation of liberty in children and adolescents as a disproportional punishment.203

Article 41 [Other Protective Provisions] Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in: (a) The law of a State party; or (b) International law in force for that State. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. More Favourable National Laws (Article 41 lit. a CRC) . . . . . . . . . . . . . . . . . . . . . . III. More Favourable Norms of Applicable International Law (Article 41 lit. b CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Embedding of Article 41 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4

I. Generalities Numerically, Article 41 CRC is the last provision of the substantive section of the 1 CRC. Nevertheless, it has been drawn up as a general rule that must apply to all the guarantees set forth in the Convention. The norm’s aim is to ensure that the special rules of the CRC are not taken as an opportunity to restrict further national or international laws to which State Parties are subjected or bound. Article 41 CRC establishes a saving or favourability clause.1 The CRC Committee stresses that the provisions in domestic and international legislation that are the most conducive to the realisation of the rights of all children shall apply in cases where standards differ or in any other event of discrepancies in substance.2 Furthermore, it reiterates that a dynamic interpretation

of Europe, Directorate General of Human Rights and Legal Affairs (ed.), Compilation of texts related to child-friendly justice, May 2009, p. 20, at 23. 201 See the ECtHR, Judgment of 16 December 1999, No. 24888/94, paras 89 et seq. – V v. The United Kingdom; Judgment of 24 April 2001, Nos. 36337/97 and 35974/97, paras 37 et seq. – B. and P. v. The United Kingdom. But see also ECtHR, Judgment of 21 September 2006, No. 12643/02, paras 95 et seq. – Moser v. Austria. 202 See J Arnold/M Rehmet, Der Schutz junger Menschen durch den Europäischen Gerichtshof für Menschenrechte, Recht der Jugend und des Bildungswesens 2018, p. 401, at 407. 203 ECtHR, Judgment of 21 February 1996, No. 21928/93, para. 54 – Hussain v. The United Kingdom. Further see S Schmahl, Report on Child-Friendly Justice: Existing International and European Standards, in: Council of Europe, Directorate General of Human Rights and Legal Affairs (ed.), Compilation of texts related to child-friendly justice, May 2009, p. 20, at 24. 1 C Kirchhof, Die UN-Konvention über die Rechte des Kindes, 2001, p. 63. 2 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 20.

541

Art. 41

[Other Protective Provisions]

of the Convention based on a child-centred approach is necessary to ensure effective implementation and the respect, protection and fulfilment of the rights of all children. 3

II. More Favourable National Laws (Article 41 lit. a CRC) 2

Under the “law of a State Party” within the meaning of Article 41 lit. a CRC fall all national provisions irrespective of the character and legal nature, including non-statutory legal norms and administrative regulations.4 Also included are the secondary laws of international organisations (in particular, European Union secondary laws) insofar as they are directly applicable in the domestic legal order. In this context, the CRC Committee requires States Parties to report on any existing domestic or supranational arrangements which appear to be more appropriate than the provisions of the CRC.5

III. More Favourable Norms of Applicable International Law (Article 41 lit. b CRC) 3

In contrast, there is a lack of clarity with regard to the wording “international law in force for that State” as laid down in Article 41 lit. b CRC. While it is undisputed that the law of international conventions is binding upon the Contracting States of a treaty, there are doubts as to whether Article 41 lit. b CRC also applies to (universal or regional) international customary law. During drafting, some State representatives argued for an explicit reference to international customs, while others rejected this request on the ground that hardly any customary international law in the area of children's rights exists. Finally, the drafters agreed on the neutral wording “international law in force for that State” in order to grant each State discretion as to whether it considers customary international law to be applicable or not.6

IV. Embedding of Article 41 CRC into the System of International Human Rights Protection 4

Article 41 CRC is similar to the saving clauses of Article 23 lit. b CEDAW and Article 5 para. 2 ICCPR. However, Article 23 lit. b CEDAW expressly refers only to international conventions, treaties or agreements in force for the State provisions of international law. A reference to customary international law is excluded. In contrast, the saving clause in Article 5 para. 2 ICCPR expressly covers customary law in addition to conventions and international regulations in order to ensure that the individual may rely on the whole corpus of law which is more favourable to his or her legal status.7

3 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 20. 4 S Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, 1992, p. 517 et seq. 5 CRC Committee, General Guidelines Regarding the Form and Contents of Periodic Reports, CRC/C/58, 1996, para. 14. 6 For the entire debate see Commission on Human Rights, Report of the Working Group, E/ CN.4/1989/48, 1989, paras 623-627, 630, 633, 635. 7 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 5 mns. 13 et seq.

542

Art. 42

[Publication Obligation]

Article 42 [Publication Obligation] States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.

I. Generalities The obligation to make the principles and provisions of the Convention widely 1 known to both adults and children as required by Article 42 CRC is specified neither in its scope nor in its form. In particular, the norm does not clarify the term “principles”. It is likely that the principles referenced in Article 42 CRC are not limited to the general principles in Articles 2, 3, 6 and 12 CRC as specified by the CRC Committee,1 but encompass all principles set out in various provisions of the Convention.2 Furthermore, the dissemination clause only demands that States Parties undertake this obligation by appropriate and active means. The purpose is however clear: Article 42 CRC aims to raise awareness about children’s rights embodied in the CRC.3 Nevertheless, for a long time, the CRC Committee had not defined specific measures to be taken under Article 42 CRC. The CRC Committee seemed rather to be satisfied if the Convention text as well as the initial and periodic reports of the Contracting States were published as a printed version and on the Internet free of charge.4 The CRC Committee only recommended that States Parties should undertake more intensive actions to inform particularly disadvantaged children, e.g., homeless children, indigenous children or children with disabilities about the Convention and its principles and guarantees.5 In the meantime, there have been significant changes. The CRC Committee, both 2 in its Concluding Observations and in its General Comments, calls for a wide dissemination of its statements and recommendations. Today, the CRC Committee regularly points out that States Parties should widely disseminate the documents to all stakeholders, in particular parliaments, governmental authorities, including child protection authorities, and the judiciary.6 Furthermore, the CRC Committee’s recommendations should be made known to all children and all relevant professionals working with and for children, the media and the society at large.7 The documents should be translated into all relevant languages, and child-appropriate versions and formats accessible to persons with disabilities should be made available.8 Furthermore, conferences, seminars or other events, be they online or offline, should be held to share good practices on how to best implement them. The documents should also be incorporated into formal preand in-service training of all concerned professionals and should be made available to all national and local human rights institutions and civil society organisations.9 The CRC See → Introduction mn. 41. Rightly so, W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 42.01. 3 W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 42.03. 4 See, e.g., CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, paras 82 et seq. 5 See → Article 4 mn. 17. 6 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 52. 7 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 52. 8 CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, paras 24, 33. 9 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 53. 1

2

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[Committee on the Rights of the Child]

Committee further explains that appropriate and active means of dissemination may change over time. Today, appropriate means may necessitate the use of a combination of traditional and novel communications channels, including the Internet and social media.10

II. Embedding of Article 42 CRC into the System of International Human Rights Protection 3

As far as can be seen, there is no other human rights treaty which has a provision comparable to that of Article 42 CRC. Article 49 ICRPD only states that the text of the ICRPD shall be made available in accessible formats but remains silent about the publication of other documents or statements given by the ICRPD Committee. A similar dissemination or promotion clause can only be found in Article 17 of the Third Optional Protocol to the CRC (OPIC) which calls on States Parties to disseminate the Optional Protocol as well as the views and recommendations of the CRC Committee in accessible formats both to adults and children paying due attention to individuals with disabilities. Article 17 OPIC is obviously modelled on Article 42 CRC. However, the accent on disabilities and the use of accessible formats is a new addition that does not feature in Article 42 CRC. Nonetheless, the CRC Committee noted early on the need to render dissemination means accessible among vulnerable groups.11 The other two substantive Protocols to the CRC, namely OPAC and OPSC, do not include a dissemination clause.

Article 43 [Committee on the Rights of the Child] 1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided. 2. The Committee shall consist of eighteen [formerly: ten] experts of high moral standing and recognized competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems. 3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. 4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States

Ibid. See also W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 42.07. CRC Committee, General Comment No. 5, CRC/GC/2003/5, 2003, para. 67; Concluding Observations: Hungary, CRC/C/HUN/CO/2, 2006, para. 18. Further see W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 42.12. 10

11

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Parties which have nominated them, and shall submit it to the States Parties to the present Convention. 5. The elections shall be held at meetings of States Parties convened by the SecretaryGeneral at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting. 7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee. 8. The Committee shall establish its own rules of procedure. 9. The Committee shall elect its officers for a period of two years. 10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly. 11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention. 12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide. I. Creation of the Committee (Article 43 para. 1 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . II. Constitution of the Committee (Article 43 para. 2 to para. 7 CRC) . . . . . . . . . . III. Organisation of the CRC Committee (Art 43 para. 8 and para. 9 CRC) . . . . . . IV. Place and Duration of Committee Meetings (Article 43 para. 10 CRC) . . . . . . V. Design of the CRC Committee and Remuneration of the Committee Members (Article 43 para. 11 and para. 12 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Embedding of Article 43 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 9 14 17 18

I. Creation of the Committee (Article 43 para. 1 CRC) According to Article 43 para. 1 CRC, a “Committee on the Rights of the Child” (CRC 1 Committee) is established to monitor the implementation of the rights set out in the CRC and its Optional Protocols in the national legal orders. This is to prevent the States Parties from neglecting their obligations under the Convention and the Protocols due to a lack of control. In addition, the CRC Committee has to support the States Parties in the task of implementing children's rights and to examine their progress.1 1 M Verheyde/G Goedertier, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, Articles 43-45, p. 2.

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[Committee on the Rights of the Child]

II. Constitution of the Committee (Article 43 para. 2 to para. 7 CRC) While Article 43 para. 2 CRC determines the members of the CRC Committee, Article 43 paras 3-7 CRC create the rules regarding the election of Committee members. According to the original wording of Article 43 para. 2 CRC, which was formulated in 1989, the CRC Committee shall consist of 10 members. However, due to the rapid increase in the scope of work of the CRC Committee, it was considered necessary to increase the number of its members after a relatively short period of time. 2 This requirement has been taken into account by the UN General Assembly in 1996 and the number of members of the CRC Committee has been raised from 10 to 18. 3 The amendment was undertaken in accordance with Article 50 CRC and entered into force on 18 November 2002.4 3 According to Article 43 para. 2, sentence 1 CRC, the members of the Committee have to be experts of high moral standing and recognised competence in the field of children’s rights. The experience with other UN human rights committees shows that a special committee with particular knowledge of children's rights brings more sensitivity and can develop more substantial strategies to overcome causal structures and systemic deficits in the Contracting States than a general human rights body.5 The competence in the field of children’s rights required by Article 43 para. 2, sentence 1 CRC is not limited to legal experts but also involves expertise in other disciplines. The CRC Committee is rather intended to be an interdisciplinary committee. 6 The composition of the CRC Committee, which is not exclusively focused on lawyers or persons with a legal background, but includes experts in several fields of children’s rights such as education, sociology or child psychology,7 allows a more holistic access to individual cases. However, this sometimes complicates the legal-technical handling of the procedure, which can be seen in some of the statements and recommendations of the Committee that are inconsistent with legal reasoning and therefore lack persuasiveness. 8 A similar criticism is often made with regard to the composition and work of other human rights committees. In particular, in the individual communications procedure a stronger legal expertise of the Committee members would be desirable. 9 This is all the more so as the individual communications procedures before all expert committees are based strictly on the division of “admissibility” and “merits” of a communication, which is also known in national and international court proceedings. This suggests that the expert committees should perform quasi-judicial tasks in these procedures and monitor 2

2 M Verheyde/G Goedertier, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, Articles 43-45, p. 9. 3 UN General Assembly Resolution 50/155: Conference of States Parties to the Convention on the Rights of the Child, A/RES/50/155, 28 February 1996. 4 See CRC Committee, Report on the Thirty-Second Session, Geneva, 13-31 January 2003, CRC/C/124, 2003, para. 4. See also → Articles 46-54 mn. 4. 5 See MR Bustelo, in: P Alston/J Crawford (eds.), The Future of UN Human Rights Treaty Monitoring, 2000, p. 79 et seq. 6 See L Krappmann, in: H Bielefeld et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 16; G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 275. 7 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 33. See also C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 521. 8 One example is mentioned in regards to Article 24 CRC, see → Article 24 mn. 32. 9 See G Britz, Die Individualbeschwerde nach Art. 14 des Internationalen Übereinkommens zur Beseitigung jeder Form von Rassendiskriminierung, Europäische Grundrechte Zeitschrift 2002, p. 381, at 382; A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 76.

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compliance with substantive standards. In the individual case assessment, they have to deal with the respective national legal situation and must evaluate it. For this legal procedure, they require compelling legal knowledge and persuasiveness,10 even though the final views enacted by the committees are, as a rule, not legally binding. States Parties shall seek, among their nationals, suitable persons to be nominated 4 for election. Article 43 para. 2, sentence 2 CRC emphasises that the members of the CRC Committee shall serve in their personal capacity and not as representatives of the government that nominated them. They must be fully independent of the respective government of their State.11 This means that the CRC Committee members, once elected, are not bound by instructions from any State authority and must carry out their activities independently and impartially.12 However, there is no provision in the Convention which prohibits members of the CRC Committee from holding a government position or working for international organisations.13 Also, the nomination of active or retired diplomats can raise questions of impartiality.14 In order to maintain the Committee members’ independence and impartiality while in office, the respective members are, in principle, not allowed to participate in the discussion of the initial and periodic reports of their home State.15 When selecting the experts, a fair and equitable geographical distribution must be made, taking into consideration the main legal systems and cultures of the world. In this way, the different forms of culture and societies within the international community of the States are taken into account for assessing children’s rights worldwide.16 Similar to Article 31 ICCPR, the text of the CRC does not address the issue of gender balance in the composition of the CRC Committee. Nevertheless, as of May 2020, 10 women and 8 men are members of the CRC Committee. In accordance with the internal organisational competence set out in Article 43 para. 5 8 CRC, the CRC Committee established its own rules of procedure in 1991. These were last revised on 1 March 2019.17 In accordance with these rules and the provisions of the Convention, the CRC Committee may also set up sub-committees and other short-term and ad hoc subsidiary bodies as it deems necessary and define their composition and mandates. Each subsidiary body elects its own officers and, in turn, may adopt its own rules of procedure.18 Due to its high workload, the CRC Committee was organised in two chambers 6 between the years 2005 and 2011. These chambers were not designed as permanent institutions, but were intended from the outset only as temporary measures to reduce the workload of the Committee. On 14 January 2004, the CRC Committee requested the UN General Assembly for permission to work in two chambers, each with nine A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 76 et seq. See G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 279; M Verheyde/G Goedertier, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, Articles 43-45, p. 10. 12 See Addis Ababa-Guidelines, re-printed in: CRC Committee, CRC/C/4/Rev.3, 16 April 2013, Annex, p. 24 et seq. Further see G Ulfstein, in: H Keller/G Ulfstein (eds.), UN Human Rights Treaty Bodies, 2012, p. 79 et seq. 13 See G Ulfstein, in: H Keller/G Ulfstein (eds.), UN Human Rights Treaty Bodies, 2012, p. 79, at 80; T Opsahl, in: P Alston (ed.), The United Nations and Human Rights. A Critical Appraisal, 1992, p. 369, at 376. 14 See C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 522. 15 CRC Committee, Report on the Second Session, CRC/C/10, 1992, para. 33. 16 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 279. 17 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019. 18 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 67. 10

11

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members, for a period of two years from January 2005 onwards.19 The CRC Committee requested this division of labour into two chambers in view of the enormous increase in the number of government reports in the early 21st century. The number of cases to be dealt with has increased from 27 to 48 State reports per year. The backlog of 58 State reports that had not yet been reviewed at that time also had to be processed. 20 In Resolution 59/261 of 24 February 2005, the UN General Assembly supported the division of the CRC Committee into two chambers for the duration of two session periods.21 In its 41st session period, the CRC Committee split for the first time into two chambers.22 Only the discussions on the “Concluding Observations” with which the State reporting process usually come to an end,23 continued to take place in the plenary session of the CRC Committee. The composition of the two chambers as well as the allocation of the respective Committee members was decided by lots. 24 Yet, after the expiry of the initially approved split into two chambers for a period of two years, the accumulated backlog in the monitoring of the State reports could not be resolved. Therefore, the CRC Committee decided on 6 June 2008 to ask the UN General Assembly for an extension of the temporary measure.25 The UN General Assembly accepted this request and allowed the CRC Committee to meet in two chambers until January 2011.26 Today, the two-chamber system no longer exists for financial reasons,27 which has a negative impact on the effectiveness of the CRC Committee's work. In December 2012, for example, the processing backlog of the CRC Committee was 107 State reports. There was also a waiting period of around four years between the submission and the review of a State report.28 In 2018, the backlog of reports to be considered by the CRC Committee stood at 41 reports: 27 under the Convention, 6 under OPAC and 8 under OPSC.29 7 The electoral procedure for appointing the CRC Committee members is regulated in Article 43 paras 3-7 CRC. According to Article 43 para. 5, sentence 1 CRC, the elections shall be held at meetings of States Parties convened by the Secretary-General at the headquarters of the United Nations in Geneva. According to Article 43 para. 3 CRC, the members of the CRC Committee shall be elected by secret ballot from a list of persons nominated by States Parties. The insertion of the words “by secret ballot” aims at ensuring free, uninfluenced voting by States Parties. Each State Party may nominate one person from among its own nationals. The nomination by the government of one’s own country representative sometimes not only depends on the qualification of the expert but also on his or her political affiliation.30 Critically, few, if any, States undertake a transparent and competitive call for interested candidates at the national level. Also, at the international level, the United Nations plays no role in assessing candidates, which is why international civil society organisations growingly attempt CRC Committee, Report on the thirty-fourth-session, CRC/C/133, 2004, p. 5. See CRC Committee, Reports of the Committee on the Rights of the Child, A/61/41, 2006, para. 31. 21 See UN General Assembly Resolution 59/261, A/RES/59/261, 23 December 2004, p. 3, para. 9. 22 CRC Committee, Reports of the Committee on the Rights of the Child, A/61/41, 2006, para. 32. 23 See → Articles 44/45 mns. 10 et seq. 24 CRC Committee, Reports of the Committee on the Rights of the Child, A/61/41, 2006, para. 33. 25 CRC Committee, Report on the 48th Session, CRC/C/48/3, 2008, p. 124. 26 UN General Assembly Resolution 63/244, A/RES/63/244, 24 December 2008, p. 1, see also UN General Assembly Resolution 63/160, A/RES/63/160, 18 December 2008, p. 3. 27 See Tentative Programme of Work, 57th Session of the Committee on the Rights of the Child, May-June 2011. 28 S Lux, Rechte des Kindes: 59. bis 61. Tagung 2012, Vereinte Nationen 2013, p. 276-278. 29 CRC Commitee, Report on its seventy-second to its seventy-seventh sessions, A/73/41, 2018, para. 10. 30 Similarly, with regard to the nomination of members of the Human Rights Committee, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 29 mn. 4. 19

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to review the qualifications and ambitions of nominated candidates.31 At least four months before the date of election, the UN Secretary-General invites the States Parties to submit their nominations within two months (Article 43 para. 4 CRC). Subsequent to this information, the Secretary-General shall prepare an alphabetical order of all persons thus nominated, indicating States Parties which have nominated them. This list shall be forwarded to all States Parties to the CRC. The persons elected to the CRC Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. The State conference at the UN headquarters has a quorum when two-thirds of States Parties are represented (Article 43 para. 5, sentence 2 CRC). Pursuant to Article 43 para. 6, sentence 1 CRC, the members of the CRC Committee are elected for a four-year term. If they are re-nominated after this term, they are eligible for re-election pursuant to Article 43 para. 6, sentence 2 CRC. Several current members of the CRC Committee are serving a second or subsequent term.32 In the first election, five members were appointed by lots; their membership expired after the end of two years pursuant to Article 43 para. 6 CRC. This rule meant that after two years the composition of the CRC Committee changed partially without endangering the continuity of the work of the entire CRC Committee. The first members of the CRC Committee were appointed on 1 March 1991 in accordance with Article 43 para. 4 CRC.33 Today, the CRC Committee consists of 18 members, with nine seats becoming vacant every two years.34 If a member is no longer able to perform his or her duties within the CRC Committee 8 because of death, resignation or any other cause, the Chair of the CRC Committee shall notify the UN Secretary-General, who shall then declare the seat of the member to be vacant. The same proceedings apply when the other members of the CRC Committee unanimously agree that a member of the CRC Committee has ceased to carry out his or her functions for any reason other than absence of a temporary nature.35 The State Party which nominated the departing member shall be invited by the UN Secretary-General, pursuant to Article 43 para. 7 CRC, to appoint within two months another expert from among its nationals who, with the approval of the CRC Committee, will serve for the remainder of the term of his or her predecessor. However, except in the case of a vacancy resulting from a member’s death or proven disability, the UN Secretary-General and the CRC Committee are only supposed to accept a State’s Party’s new proposal after having received from the member concerned written notification of his or her decision to cease to function as a member of the CRC Committee.36 The fact that, according to Article 43 para. 7 CRC, a CRC Committee member alone is capable of declaring that he or she can no longer perform the duties of the CRC Committee, strengthens the independence of the CRC Committee members from their sending countries. State repression of CRC Committee members is thus made more difficult.37 31 For more detail see C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2nd edn. 2020, p. 519, at 521. 32 See C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 520. 33 See M Verheyde/G Goedertier, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, Articles 43-45, p. 10. See also CRC Committee, Conclusions and Recommendations, CRC/C/7, 1991, para. 3. 34 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 33; N Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2013, p. 339. 35 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 15 para 2. 36 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 15 para. 5. 37 See G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 280; L LeBlanc, The Convention on the Rights of the Child. United Nations Law-making on Human Rights, 1995, p. 207 et seq.

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III. Organisation of the CRC Committee (Art 43 para. 8 and para. 9 CRC) According to Article 43 para. 8 CRC, the CRC determines its own rules of procedure. The current edition was enacted on 1 March 2019.38 It contains, inter alia, rules pertaining to the meetings of the Committee (Rules 1-5), the course of the meetings (Rules 39-41), the agenda (Rules 6-10), the Bureau of the Committee (Rules 17-28), the Secretariat of the Committee (Rules 29-33), the conduct of business, including decision-making procedures, voting, and the requisite quorums (Rules 45-66), the official and working languages to be used (Rules 34-38) and to the exercise of the tasks and functions of the CRC Committee pursuant to Article 44 and Article 45 CRC (Rules 70-80).39 The rules of procedure are delegated secondary legislation.40 This means that the rules of procedure must be consistent with the constituent human rights treaty in order not to be ultra vires. Otherwise, the States Parties to the Convention have little influence on the structure of the procedural rules.41 10 According to Article 54 CRC, Arabic, Chinese, English, French, Russian and Spanish shall be the official languages. However, the CRC Committee has limited its working languages to English, French and Spanish.42 The meetings of the Committee and its subsidiary bodies shall be held in public, unless the Committee decides otherwise,43 which is often the case for the working groups prior to meetings.44 11 The chairperson of the CRC Committee (hereafter: Chair) shall declare the opening and closing of each meeting of the CRC Committee. Furthermore, the Chair shall direct the discussion, shall have control of and bear responsibility for the proper proceedings of the CRC Committee, shall ensure observance of the rules of procedure, shall accord the right to speak, put questions to the vote and announce decisions.45 Summary records of all meetings are prepared and transmitted to all CRC Committee members and other participants in the meeting in order that they may submit corrections.46 The recordings of public meetings shall be accessible to the public. The summary records of private meetings shall be distributed to the members of the CRC Committee and to other participants in the meetings. They may be made available to third parties at such time and under such conditions as decided by the CRC Committee.47 Pursuant to Article 45 lit. a CRC, reports and information furnished to the CRC Committee by the UN specialised agencies, UNICEF or other UN organs and competent bodies48 shall be made available to all members of the CRC Committee and, if so decided by the Committee, to members of its subsidiary bodies, States Parties concerned and other participants at the meetings.49 Pursuant to Article 44 CRC, reports and additional information submitted by States Parties shall be documented for general distribution. 9

CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019. See → Article 43 mn. 5. 40 M Benzing, Das Beweisrecht vor internationalen Gerichten und Schiedsgerichten in zwischenstaatlichen Streitigkeiten, 2010, p. 106 et seq. 41 See A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 85; C Brown, A Common Law of International Adjudication, 2009, p. 39. 42 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 34. 43 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 39. 44 For more detail see → Articles 44/45 mns. 4 et seq. 45 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 46. 46 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 42. 47 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 43. 48 See → Articles 44/45 mn. 36. 49 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 44. 38

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Article 43 para. 9 CRC stipulates that the CRC Committee shall elect officers who 12 form the Bureau of the CRC Committee and shall be appointed for a period of two years, with a recent commitment to rotating the Chair’s seat among the world regions. 50 These officers consist of a Chair and four Vice-Chairs, each of them elected by the members of the CRC Committee by giving due consideration to equitable geographic representation, appropriate gender balance and representation of the three working languages of the Committee. One of the Vice-Chairs shall serve as a Rapporteur. The Bureau shall meet regularly during sessions and be accountable to the CRC Committee for the performance of its functions.51 The officers of the Bureau shall be eligible for re-election to the same or any other office in the Bureau once only. However, no officer who has served as Chair shall be eligible for re-election to that office.52 If a member leaves the CRC Committee, he or she must also vacate his or her office.53 If an officer ceases, or declares his or her inability to continue serving as an officer, a new officer is elected for the unexpired term as his or her predecessor.54 In the performance of their duties, the officers remain under the authority and supervision of the CRC Committee. 55 Decisions of the CRC Committee shall be made by a majority of the members 13 present, insofar as no other procedure is provided in the Convention or the rules of procedure.56 Such an exception exists, for example, when special sessions are to be convened.57 Each Committee member shall have one vote.58 Unless otherwise decided by the CRC Committee, the Committee shall vote by a show of hands;59 voting by means of a roll-call are also possible.60 However, the members of the CRC Committee have meanwhile decided to use the consensus procedure before voting, if possible.61

IV. Place and Duration of Committee Meetings (Article 43 para. 10 CRC) According to Article 43 para. 10 CRC, the meetings of the CRC Committee shall 14 normally be held at the headquarters of the UN or at any other convenient place as determined by the CRC Committee. The duration of the meetings of the CRC Committee shall be settled and reviewed, if necessary, by the States Parties to the Convention, subject to the approval of the UN General Assembly. However, according to the rules of procedure, the CRC Committee shall hold meetings as may be required for the effective performance of its functions in accordance with the Convention.62 The CRC Committee has decided to hold three regular sessions annually.63 Already in 1991, at its first meeting, the CRC Committee decided to submit a motion to the UN General Assembly to

50 See J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 34, as well as CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 17 para. 3. 51 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rules 17-18. 52 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 20. 53 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 19 para. 2. 54 CRC Committee, Rules of Procedure, CRC/C/4/Rev. 5, 2019, Rule 28. 55 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 25 para. 2. 56 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 59. 57 See → Article 43 mn. 16. 58 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 58. 59 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 61. 60 See specifically CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 62. 61 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 43.12. 62 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 1. 63 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 2.

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meet twice a year.64 The UN General Assembly complied with this request.65 Since 1995, the number of annual meetings has increased from two to three.66 An amendment of Article 43 para. 10 CRC has not been carried out and is not necessary because of the formulation “normally” in the provision. 15 The members of the CRC Committee shall be notified by the UN Secretary-General of the date and place of the first meeting of each session. The notification shall be sent, in the case of regular sessions, at least six weeks in advance, and in the case of a special session, at least three weeks in advance of the first meeting.67 The provisional agenda for each regular session shall be prepared by the UN Secretary-General in consultation with the Chair of the CRC Committee, and shall include any item decided upon by the CRC Committee at a previous session and those items proposed by the Chair, a member of the CRC Committee or a State Party to the Convention.68 The provisional agenda of a special session may, however, consist of only those items that were proposed for its consideration at the special session.69 The first item on the provisional agenda for any session – except for the election of the officers – shall be the adoption of the agenda, which may, as appropriate, be revised, supplemented, shortened or restructured during a regular session.70 16 Besides the regular sessions, the CRC Committee may also hold special sessions. When the CRC Committee is not in session, the Chair may convene special sessions of the Committee in consultation with the other officers of the CRC Committee. The Chair of the CRC Committee shall also convene special sessions at the request of a majority of the members of the CRC Committee, or at the request of a State Party to the Convention.71 In addition to these formal regular and extraordinary (special) sessions, the CRC Committee may convene informal meetings, which are held at places other than the headquarters of the UN, and in which non-governmental and international organisations may participate.72 Within the framework of these informal meetings, the implementation of the Convention rights at the regional level and the possibilities for further international cooperation are discussed. Moreover, the overall situation of children's rights is occasionally assessed at such meetings.73 However, these informal meetings have no control function but serve as a dialogue and information forum only.74 The CRC Committee may also hold informal meetings with individual States Parties to the CRC.75

CRC Committee, Report of the 1st Session, A/47/41, 1991, p. 1, para. 2. UN General Assembly Resolution 46/112, A/RES/46/112, 17 December 1991. 66 CRC Committee, Report on the fifth session, CRC/C/24, 1994, p. 4. 67 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 5. 68 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 6. 69 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 7. 70 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rules 8-9. 71 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 3. 72 See M Verheyde/G Goedertier, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, Articles 34-45, p. 13. 73 See, e.g., CRC Committee, Report on the fourth session, CRC/C/20, 1993, para. 134. 74 M Verheyde/G Goedertier, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, Articles 43-45, p. 12. 75 See M Verheyde/G Goedertier, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, Articles 43-45, p. 13. 64

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V. Design of the CRC Committee and Remuneration of the Committee Members (Article 43 para. 11 and para. 12 CRC) According to Article 43 para. 11 CRC, the UN Secretary-General shall provide the 17 necessary staff and facilities for the effective performance of the CRC Committee. With the approval of the UN General Assembly, the members of the CRC Committee shall receive emoluments from UN resources on such terms and conditions as the Assembly may decide (Article 43 para. 12 CRC). This fact distinguishes the CRC Committee from a few other (not all!) human rights committees established by a human rights treaty where the responsibility for the remuneration of the committee members lies with the Contracting States (see, e.g., Article 17 para. 7, Article 18 paras 3 and 5 CAT). In order to circumvent the problem of irregular or lacking contributions which can considerably limit the effective performance of a treaty-based monitoring body76 and to also guarantee the independence of the Committee members from their respective governments, 77 the CRC Committee receives direct financing from the UN budget. However, this is not unproblematic either, since the individual contribution payments of the Member States to the UN budget are based on gross national income, which makes the organisation strongly dependent on individual Member States.78

VI. Embedding of Article 43 CRC into the System of International Human Rights Protection During the drafting of the Convention, the working group tasked with the con- 18 stitution of the CRC Committee oriented itself on the designs of already existing human rights treaty-based committees such as the Human Rights Committee (Article 28 ICCPR), the CERD Committee (Article 8 ICERD) and the CEDAW Committee (Article 17 CEDAW).79 Therefore, there are many similarities between these expert committees.80 The members of all these committees have a fixed, renewable term of office of four years.81 The committees are comprised of ten to 25 independent experts nominated and elected by the States Parties to each convention.82 Yet, after the number of members of the CRC Committee has been increased,83 almost all of these committees consist now of 18 independent experts.84 The replacement of an orphaned seat in the CRC Committee is addressed in Article 43 para. 7 CRC which is modelled on Article 17 para. 7 CEDAW and Article 8 para. 5 ICERD. However, there are also some, though minor differences. Pursuant to Article 43 para. 19 4 CRC, at least four months before the date of the election of the CRC Committee members, the UN Secretary-General shall address a letter to States Parties inviting 76 As in the case of CAT, see L LeBlanc, The Convention on the Rights of the Child. United Nations Law-making on Human Rights, 1995, p. 218. 77 Rightly so, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 35 mn. 1. 78 S Schmahl, in: W Graf Vitzthum/A Proelß (eds.), Völkerrecht, 8 th edn. 2019, Section 4, mn. 215. 79 See G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 274. 80 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 278-280. 81 See Article 43 para. 6 CRC, Article 32 para. 1 ICCPR, Article 8 para. 5 ICERD, and Article 17 para. 5 CEDAW. 82 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 15. 83 See → Article 43 mn. 2. 84 One exception is, for instance, Article 17 para. 1 CEDAW.

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them to submit their nominations within two months. According to Article 8 para. 3 ICERD and Article 17 para. 3 CEDAW, the deadline to submit nominations is also two months, but the UN Secretary-General's request comes only three months before the date of the election. In contrast, Article 30 para. 2 ICCPR sets the deadline for nominations at three months and the period between the election and the request of the UN Secretary-General at four months. In the CRC, these two possibilities (ICERD/ CEDAW and ICCPR) are combined. Furthermore, the UN Secretary-General does not set a deadline for the transmission of the electoral lists to the States Parties, 85 which is a less stringent regulation than the one laid down in Article 30 para. 3 ICCPR.

Article 44 and 45 [State Reporting Procedure] Article 44 1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights (a) Within two years of the entry into force of the Convention for the State Party concerned; (b) Thereafter every five years. 2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned. 3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided. 4. The Committee may request from States Parties further information relevant to the implementation of the Convention. 5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities. 6. States Parties shall make their reports widely available to the public in their own countries.

Article 45 In order to foster the effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention: (a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider 85

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appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities; (b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children's Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications; (c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child; (d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties. I. Process of the State Reporting Procedure (Article 44 para. 1, Article 45 lit. d CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Content Requirements for State Party Reports (Article 44 para. 2 and para. 3 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Miscellaneous Guidelines (Article 44 para. 4 to para. 6 CRC) . . . . . . . . . . . . . . . . IV. Cooperation with other Organisations (Article 45 lit. a and lit. b CRC) . . . . . . V. Cooperation with the UN General Assembly and the UN Secretary-General (Article 45 lit. c CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. CRC Committee’s Competence to Make Recommendations (Article 45 lit. d CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Embedding of Articles 44 and 45 CRC into the System of International Human Rights Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. Overview on the Practice of State Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 15 35 36 40 42 52 57

I. Process of the State Reporting Procedure (Article 44 para. 1, Article 45 lit. d CRC) In order to foster the effective implementation of the Convention in the States 1 Parties, Article 44 CRC establishes a State reporting procedure that is obligatory for all Contracting States. Further control mechanisms such as individual or inter-State communications procedures are not provided for in the Convention. However, a Third Optional Protocol to the CRC on a Communications Procedure (OPIC) has entered into force on 14 April 2014, which, in addition to an inter-State complaint and an inquiry procedure, has primarily created an individual communications procedure for children.1 According to Article 44 para. 1 CRC, States Parties undertake to submit to the 2 CRC Committee reports on the measures they have adopted which give effect to the Convention rights and on the progress made on the enjoyment of children’s rights. The reports are intended to highlight factors, difficulties and shortcomings within the State Party that affect or hinder the degree of fulfilment of Convention obligations during the reporting period. The reports must contain sufficient information and be detailed in such a way as to enable the CRC Committee to acquire a complete picture 1

For more detail see → Individual Communications Procedure mns. 1 et seq.

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of the situation in the reporting State.2 States Parties must provide a comprehensive portrayal of the measures taken to realise children’s rights and the progress made in implementing these measures (Article 44 para. 2 CRC). The reason for this is twofold: on the one hand, the State reporting procedure secures the greatest possible preservation of State sovereignty. On the other hand, it serves the State’s self-accountability. First and foremost, it is the States Parties themselves which should examine the effectiveness of the measures undertaken to implement the obligations under the Convention into their national legal systems.3 The report-and-review process is construed as a constructive and dynamic dialogue, as a tool for teaching and learning – and not as a trial. It is an opportunity for States Parties to talk and learn about best implementation practices or more efficient and effective methods to improve children’s rights outcome. 4 Or in other words: State reporting is “evolutionary, not revolutionary”.5 It bases on the social-psychological premises that repeat participation in the self-reporting process may result in important improvements. Ideally, in-person dialogues between the State agents and the CRC Committee members may be conducive to facilitate mutual exchange, understanding and learning.6 Of course, this does not prevent the procedure from primarily aiming at monitoring the States Parties’ compliance with their treaty obligations.7 Independent of the constructive dialogue, which is certainly valuable, the CRC Committee tries to exert pressure on States to comply with their obligations. 3 According to Article 44 para. 1 lit. a and lit. b CRC, State reports must be submitted to the CRC Committee at regular intervals. The initial report shall be submitted within two years of the entry into force of the Convention for each State Party, the following reports shall be submitted every five years. The reports shall be submitted to the CRC Committee through the UN Secretary-General. The wording of Article 44 para. 1 CRC makes it clear that the States Parties have to initiate the reporting procedure ex officio and ensure the submission deadline to be respected. This obligation differs significantly from individual complaint procedures, since the latter can be initiated as required, i.e. such procedures are conditional and voluntary.8 The Third Optional Protocol to the CRC on a Communications Procedure which establishes an individual communications procedure for possible victims has closed the before existing lacunae in the control and monitoring mechanism with regard to children’s rights.9 4 The CRC Committee reviews the submitted State Party reports in three stages. 10 To consider State Party reports (and conduct other business), the CRC Committee meets G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 281. M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 16. 4 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 31 and 33. 5 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 46. 6 C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 528. 7 E Klein/D Kretzmer, States Reports to Human Rights Treaty Bodies: An Historical Introduction, Israel Yearbook on Human Rights 50 (2020), p. 97, at 97 et seq., with particular regard to the Human Rights Committee. 8 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 15. 9 See T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115-128; Y Lee, Communications Procedure under the Convention on the Rights of the Child: 3 rd Optional Protocol, International Journal of Children’s Rights 18 (2010), p. 567, at, 568. 10 For more detail see M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 23-30. 2

3

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three times a year in Geneva for a period of four weeks.11 Three weeks are spent in plenary sessions with State Party representatives, and one week is dedicated to the pre-sessional working group’s meeting with NGOs, UN Agencies and children.12 In the first step, the reports are discussed by a preparatory working group in a pre-hearing session.13 The working group normally meets for a period of one week in a non-public session before the plenary session of the CRC Committee. As a rule, the pre-hearing session with the working group of the CRC Committee is to be held six months before the scheduled date for the hearing with the State representatives of the State Party report. The task of the working group is to prepare the next CRC Committee meeting. The working group is constituted of members of the CRC Committee. Although all members of the CRC Committee are invited to participate in the working group, attendance has often been irregular.14 Moreover, representatives of other UN bodies, as well as NGOs, can also participate in order to receive information on the work of the CRC Committee.15 In contrast, representatives and observers of States Parties are not admitted to the meetings of the working group.16 The purpose of the working group is to facilitate the work of the CRC Committee. 5 Within the group, States Party reports are discussed and major questions and problems are worked out. The results are then forwarded to the State Party concerned in order to enable its agents to prepare for the forthcoming discussion with the CRC Committee in the plenary session. In addition, the working group offers the opportunity to deal with questions of international cooperation and technical support.17 The advantages of such an approach arise, on the one hand, from the fact that the State’ agents can prepare themselves for the discussion and reduce the risk that they cannot answer questions. On the other hand, NGOs are more easily integrated into the monitoring process during the working group session than in plenary sessions.18 Regarding the written opinions of the NGOs, the CRC Committee has issued guidelines for compiling the organisation’s reports. NGOs shall submit their opinions at the latest two months before the meeting of the working group.19 The CRC Committee members may then invite NGOs to the discussions which they consider necessary or appropriate in the course of a particular State report.20 After the conclusion of the pre-hearing sessions, the CRC Committee compiles a list 6 of issues to be addressed by the respective State Party prior to the formal presentation of the State Party report in the plenary session. The list of issues is intended to give the governments a preliminary indication of the priorities for discussion in the plenary

See → Article 43 mn. 14. J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 38. 13 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 23. 14 Critical view by M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 26, with further references. 15 See CRC Committee, Report on the eighth session, CRC/C/38, 1995, paras 262 et seq. 16 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 24. 17 See M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 24. 18 CRC Committee, Report on the eighth session, CRC/C/38, 1995, paras 262 et seq. See also → Articles 44/45 mn. 18. 19 CRC Committee, Report on the twenty-second session, CRC/C/90, 1999, Annex VIII, paras 2, 3. 20 CRC Committee, Report on the twenty-second session, CRC/C/90, 1999, Annex VIII, para. 4. 11 12

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session.21 Furthermore, the list of issues typically requires the State Party to provide additional information and updates on developments that have occurred since the submission of the State Party report, and asks for more information about specific issues raised by the NGO delegation.22 The government’s written response to the list of issues, and the list itself, are public documents and available on the treaty body database. Civil society reports can be found there, too, if prior permission for public dissemination has been granted.23 7 At a second stage, the State Party reports will be examined and discussed in a public and plenary session of the CRC Committee.24 In addition to the CRC Committee members, representatives of the reporting State participate in the plenary session. Furthermore, the meeting is open to anyone who expresses interest in participation provided advance accreditation is obtained. However, not everyone accredited is permitted to participate actively in the meeting. Rather, in addition to CRC Committee members and the agents of the State Party concerned, only representatives of the UN specialised agencies, UNICEF and other UN organs may actively participate in giving expert advice, pursuant to Article 45 lit. a CRC, in areas falling within their respective mandates, and address questions to the delegates of the reporting State.25 The discussion in the plenary session of the CRC Committee begins with a presentation of the delegation representing the reporting State Party to provide answers to the questions posed by the working group and enshrined in the list of issues during the preparatory phase. Each State Party report is assigned precisely the same amount of time in the hearing before the CRC Committee, regardless of the population size or geographical reach of a country. By way of example, the review of the report of the Kingdom of the Netherlands in 2014 included not just the situation in the Netherlands but also all of the overseas territories falling under the Kingdom, such a Curaçao.26 It is in fact questionable whether this one-size-fits-all-approach with contexts as diverse as in China and Vanuatu, for instance, is adequate.27 8 The interactions between the CRC Committee and the State Party concerned is intended to develop a constructive dialogue with the members of the CRC Committee, 28 which not only identifies incorrect, failed or missing implementation of children's rights in the State Party, but also highlights successes of implementation and best practices. 29 This characterisation provides an indication of the nature of the process: it is meant to be one of fruitful dialogue, not of adjudication in the sense of court proceedings. The task of all human rights expert bodies in the State reporting procedure is to convince and persuade rather than to judge.30 A country rapporteur, appointed by the CRC 21 A Plevin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 93, at 102. 22 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 41. 23 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 41. 24 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 72. 25 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 26. 26 See the example given by J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 41. 27 See J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 46. 28 UN General Assembly, Note by the Secretary-General: Guidance Note on Constructive Dialogue, A/69/285, 2014, p. 11-12, 23 et seq. 29 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 26. 30 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 41.

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Committee in advance, who has the task to familiarise him/herself with the State Party to be reviewed, acts as a focal point for introducing and coordinating the dialogue.31 The rapporteur is assigned to provide a comprehensive overview of missing information, identify discrepancies between domestic and treaty law, point to previous recommendations on which he or she saw no progress, and request follow-up information.32 As far as necessary, supplementary questions may be posed by any CRC Committee member. CRC Committee members who are nationals of the State Party under review do not participate in the entire process, including the constructive dialogue and the formulation of the Concluding Observations, in order to maintain their full independence from the sending government. The dialogue takes place in two meetings of three hours each, normally spread 9 over two days.33 The focus of the dialogue is on thematic priorities identified by the CRC Committee, previous Concluding Observations, challenges identified in the list of issues of the pre-hearing session, and possible new developments in the State Party. 34 Questions posed by the CRC Committee are usually clustered by themes along the lines of the guidelines for the State reports. However, a major problem in regard to these discussions is that oral discussions between the parties require a great amount of time. Due to the large number of States that are parties to the CRC (196 States Parties),35 the CRC Committee has to deal with a large number of State Party reports. This results in a conflict between the need to deal with all reports in a timely manner and the aim of obtaining an adequate overview of the actual situation of children's rights in the respective State.36 Time allocation with regard to the opening statement of the State Party under review is therefore strictly controlled with a view to maximising the time for direct exchange between the CRC Committee members and the State Party’s representatives.37 But still, it is unfortunate that the CRC Committee can only concede a relatively short time to dedicate to each country.38 The constructive dialogue is held in a public meeting, which may be attended by any observer provided advance accreditation is obtained. The third and final step in the monitoring State reports is the preparation of the Con- 10 cluding Observations, which are carried out by the CRC Committee in accordance with Article 45 lit. d CRC. The CRC Committee may make suggestions and general recommendations based on information received and give opinions upon both positive developments in the State Party and upon those items which need further development. 39 Concluding Observations are prepared in a first draft by the Secretariat at the Office of the UN High Commissioner for Human Rights, together with the designated country 31 UN General Assembly, Note by the Secretary-General: Guidance Note on Constructive Dialogue, A/69/285, 2014, p. 23-24. 32 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 16. 33 Some scholars find this time frame too limited for detailed discussion, see, e.g., N Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2012, p. 361. 34 UN General Assembly, Note by the Secretary-General: Guidance Note on Constructive Dialogue, A/69/285, 2014, p. 24. 35 See → Introduction mn. 10. 36 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 28. 37 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 42. 38 K Mechlem, Treaty Bodies and the Interpretation of Human Rights, Vanderbilt Journal of Transnational Law 42 (2009), p. 905, at 922. 39 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 29.

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rapporteur of the CRC Committee. Final approval after inputs from other CRC Committee members takes place at a private Committee meeting.40 The Concluding Observations are made public on the last day of a CRC Committee session. Once adopted, the recommendations of the CRC Committee are forwarded to the State Party concerned and the UN General Assembly.41 They are also issued as an official document of the CRC Committee and are available in the treaty bodies’ online database of the OHCHR. The UN General Assembly has placed a word limit of 10.700 words for each document produced by a human rights treaty body.42 This word limitation has obvious implications for the level of detail, quality and clarity of the Concluding Observations.43 They remain often at a rather general level, and their jurisprudential and practical impact is therefore still rather marginal.44 Nevertheless, since all Concluding Observations are made public, they continuously raise the political hurdles of ignoring them and they are more and more cited by domestic and regional courts.45 11 The CRC Committee's Concluding Observations usually follow an established structure, which has however been subject to various changes in recent years. Originally, the Concluding Observations on the States Parties’ initial reports under Article 44 para. 1 lit. a CRC started with a brief introduction, continued with the mention of the positive aspects and ended with the difficulties identified in the implementation of the Convention rights. This rough structure led to fundamental concerns and finally to the issuance of more specific recommendations of the CRC Committee.46 Since the 19th session in 1998, the CRC Committee summarises its fundamental concerns and recommendations in a single bullet point.47 The Concluding Observations on the States Parties’ periodic reports under Article 44 para. 1 lit. b CRC are structured accordingly. After a short introduction, the measures taken and the progress made in the reporting State are explained. Thereafter, circumstances and difficulties concerning the further implementation of the Convention are addressed. Today, the Concluding Observations follow a standard format which in substance mirrors the clustering of rights suggested in the guidelines to formulate the State reports.48 Finally, the CRC Committee expresses fundamental concerns, makes suggestions and adopts general recommendations.49 12 It is a weakness of the Convention that the Concluding Observations issued by the CRC Committee, including the concerns, suggestions and recommendations contained therein, are not legally binding on the States Parties. The CRC Committee has only the competence under Article 45 lit. d CRC to make suggestions and recommendations. They impose no legal obligation on States Parties.50 An international responsibility of N Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2012, p. 347. CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 75. 42 UN General Assembly Resolution 68/268, A/RES/68/268, 9 April 2014, para. 15. 43 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 43. 44 K Mechlem, Treaty bodies and the Interpretation of Human Rights, Vanderbilt Journal of Transnational Law 42 (2009), 905, at 922. 45 See C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 17 and 41 et seq., with further references. 46 CRC Committee, Report on the second session, CRC/C/10, 1992, p. 42. 47 See M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 29. 48 See → Articles 44/45 mns. 9, 19 et seq. 49 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 29 et seq. For an exception see: CRC Committee, Concluding Observations: Sweden, CRC/C/84, 1999, paras 128-150. 50 M O’Flaherty, The Concluding Observations of United Nations Treaty Bodies, Human Rights Law Review 6 (2006), p. 27-52. 40

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the Contracting States for deficits in the implementation of the opinions and views given by the CRC Committee is therefore out of the question, provided that these views go beyond what was agreed in the Convention text.51 This is sometimes the case when the CRC Committee focuses on issues which are not in practice that serious in the State Party to be reviewed or which are neither explicitly nor implicitly reflected in the Convention text. For instance, the criticism of South Africa’s overcrowded detention facilities seems out of place given the enormous reduction in children deprived of their liberty in the preceding five-year period.52 In fact, there are obviously more mobilisation and lobbying from domestic actors in relation to the CRC Committee than to other treaty bodies, and some of the Concluding Observations have rather supported or accelerated a certain political interest.53 Nevertheless, since the Concluding Observations mirror the views of the CRC Com- 13 mittee, which has the main responsibility for monitoring the implementation of the Convention, they should be used as a basis for future State action and not be ignored.54 This is all the more so, since independent expert committees, such as the CRC Committee, do not make decisions based on political utility or strategy, but rather on the basis of applicable law. Since the States Parties have voluntarily set up human rights committees precisely for monitoring human rights conventions, they are obliged to heed their recommendations on the grounds of the principle of good faith.55 Therefore, if States Parties wish to oppose the content of a CRC Committee’s opinion, they at least bear the burden of argument56 and they also bear the risk to be reprimanded in the following reporting procedures. Although Concluding Observations are formally not legally binding, they are generally effective in practice. One crucial precondition for that effectiveness is termed “reputational models” of accountability which means that the target State and a wider domestic audience bestow reputation on the treaty bodies and consider them as legitimate.57 In that context, it is interesting to note the recent Copernican turn of the Spanish Supreme Court in ruling that the Concluding Observations and views of the CEDAW Committee are part of the State’s constitutional mandate and its international obligations.58 This statement can be extended in an analogous form with regard to the recommendations and views expressed by the CRC Committee. Yet, there is no formal mechanism to ensure that the recommendations made by 14 the CRC Committee are actually implemented in the domestic legal system. The implementation depends on the measures the government is willing to take, on the priorities within the policies and programmes of the country, and on the allocation of adequate 51 Rightly so, H-G Dederer, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 287, at 306. 52 See J Sloth-Nielsen, Child Justice, in: T Boezaart (ed.), Child law in South Africa, 2 nd ed. 2017, p. 677-725. 53 See J Krommendijk, The domestic effectiveness of international human rights monitoring in established democracies, Review of International Organisations 10 (2015), p. 489, at 506. 54 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 30. 55 E Klein, in: K Kreuzer/D Scheuing/U Sieber (eds.), Europäischer Grundrechtsschutz, 1998, p. 39, at 48. See also → Introduction mn. 43. 56 E Klein, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, Vol. VI/2, 2009, § 127 mn. 27, 31; S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung, Recht der Jugend und des Bildungswesens 2014, p. 125, at 129. 57 J Krommendijk, The domestic impact and effectiveness of the process of state reporting under UN human rights treaties in the Netherlands, New Zealand and Finland, 2014, p. 374. 58 See Supreme Court of Spain, Judgment of 17 July 2018, No. 1263/2018 – González Carreno v. Ministry of Justice. For more detail see Y Ioffe, Case of Georgia v. Russia (I) (Just Satisfaction), American Journal of International Law 113 (2019), p. 586-592.

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human and financial resources.59 So far, the CRC Committee has not instituted a robust follow-up procedure other than the (soft) requirement that States Parties must inform the Committee in the following reporting cycle of the measures taken in conformity with the previous Concluding Observations.60 This gap might be explained by the fact that the CRC Committee is overloaded with review work. Indeed, the oversight machinery at the UN human rights level is generally severely under-resourced, leading to several inadequacies. Committee members are frequently not paid or merely receive emoluments on such conditions as the UN General Assembly decides, as is the case with the CRC Committee.61 Moreover, Committee members are often employed by governments with the potential to compromise independence.62 They are all swamped with work and sometimes take more than a year to respond to State reports. 63 Over the past two years, the UN General Assembly even adopted budget cuts that significantly impacted the treaty body monitoring system, which now faces a serious financial crisis and even the possibility of cancelling meetings in order to cut costs.64 Against this backdrop, it is not astonishing that the CRC Committee has discontinued the soft follow-up procedure in 2018 due to resource constraints.65

II. Content Requirements for State Party Reports (Article 44 para. 2 and para. 3 CRC) Article 44 paras 2 and 3 CRC contain provisions on the contents of State Party reports. According to Article 44 para. 2 CRC, the submitted reports shall indicate any factors and difficulties experienced in the implementation of children’s rights. If they wish so, States Parties may obtain assistance from the CRC Committee in order to resolve problems when writing the reports.66 In any case, reports shall contain sufficient information to provide the CRC Committee with a comprehensive understanding of the implementation of the CRC in the country concerned. If, after the entry into force of the Convention, the States Parties have submitted a comprehensive initial report regarding their sovereign territory and jurisdiction, they need not, in its subsequent reports, repeat basic information previously provided (Article 44 para. 3 CRC). 16 Concrete information on how a State report is to be structured cannot be found in Article 44 paras 2 and 3 CRC. However, the CRC Committee has developed guidelines for the preparation of State reports. Such guidelines aim at both simplifying the preparation of reports for States Parties and to make it easier for the CRC Committee to analyse and evaluate them.67 Although the guidelines are not binding upon the State Parties, they are indicative of the CRC Committee's expectations and are a useful tool to avoid 15

N Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2012, p. 364. J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 44. 61 See → Article 43 mn. 17. 62 See C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 20. 63 See ECOSOC, Note by the Secretary-General, E/CN.4/1997/74, 1997, para. 7. 64 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 21. 65 See, e.g., the outcomes of the Meeting of Chairs of the Human Rights Treaty Bodies, United Nations, Note by the Secretariat, HRI/MC/2018/4, 2018, paras 3 and 9. 66 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 16. 67 L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 21. 59

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a Committee's request for further information relevant to the implementation of the Convention, as provided in Article 44 para. 4 CRC.68 On 15 October 1991, the CRC Committee first issued guidelines for the preparation 17 of the initial reports of the States Parties.69 The guidelines for the periodic subsequent reports were adopted in 1996.70 These were replaced in 2005 by an updated version,71 applicable to all State Party reports submitted after 31 December 2005. 72 Finally, in 2010, these guidelines were superseded by the so-called treaty-specific guidelines, which were again revised and adjusted to the need of present times in 2015.73 As regards the two substantive Optional Protocols to the CRC – OPAC and OPSC – the CRC Committee established special reporting guidelines in 2006 and 2007.74 This fact required the CRC Committee to issue separate Concluding Observations for reports submitted by States Parties to the Convention and to the two Optional Protocols. In other words, prior to the revised guidelines of 2015, reporting under the CRC and the two Optional Protocols were completely separate processes. The original 1991 guidelines gave the States Parties direction as to which and to 18 what extent information was to be included into their reporting. In addition, they introduced a uniform structure for the initial reports.75 The purpose and objective of the guidelines were to receive systematised State reports and to encourage the participation of governmental and non-governmental organisations such as UNICEF and NGOs which are active in the field of children's rights and are concerned in their practical work with a particular area of the Convention.76 The articles of the Convention were divided into eight subject areas (clusters), according to which the State Party reports should be divided.77 The following guidelines of the CRC Committee, including the revised treaty-specific guidelines of 2015, still make reference to this cluster structure. Accordingly, the first section of the State Party reports should contain information on 19 the articles of the Convention which deal with the general measures of implementation and the dissemination and disclosure of children's rights (Article 4, Article 42 and Article 44 para. 6 CRC). This includes, among others, such issues as “domestication” of the Convention guarantees through law reform, reporting of national strategies and child-oriented action programmes, overall coordination of the implementation of the CRC within the respective government structure, budget allocations for children, the establishment and functioning of a national human rights institution, cooperation with civil society and measures taken to make the contents of the CRC known to the public. 78 68 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 18. 69 CRC Committee, General Guidelines: Initial Reports, CRC/C/5, 1991. 70 CRC Committee, General Guidelines: Periodic Reports, CRC/C/58, 1996. 71 CRC Committee, General Guidelines: Periodic Reports, CRC/C/58/Rev.1, 2005. 72 CRC Committee, General Guidelines: Periodic Reports, CRC/C/58/Rev.1, 2005, para. 2. 73 CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.2, 2010; Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015. 74 CRC Committee, Guidelines: Initial Reports, CRC/C/OPSC/2, 2006; Guidelines: Initial Reports, CRC/C/OPAC/2, 2007. 75 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 18. 76 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 20. 77 For more detail see L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 21-23; J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 13 et seq. 78 See CRC Committee, General Comment No. 2, CRC/GC/2002/2, 2002, and General Comment No. 5 CRC/GC/2003/5, 2003. Further see J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 36.

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Under this heading, States Parties must also report on their oversight of businesses that may impact the enjoyment of children’s rights.79 The second cluster has to be devoted to the definition of a child according to Article 1 CRC. The State Party report is supposed to cover up-to-date information concerning the definition of the child in its domestic laws and regulations. If the legal age of majority is below the age of 18 years, the State Party should indicate how all children benefit from the protection under the CRC up to the age of 18 years. Particular regard should be given to the minimum age for marriage for boys and girls in its legislation. The third group deals with the fundamental, general principles of the Convention (Articles 2, 3, 6 and Article 12 CRC). The CRC Committee is desirous of receiving information about measures to combat gender-based discrimination and discrimination of children with disabilities, children belonging to minorities and indigenous children.80 As regards the primacy of the best interests of the child and respect for the child’s views, the CRC Committee requests the provision of information on all measures (legislative, administrative, judicial and others) in force to enable these core principles of the CRC to be furthered and strengthened.81 The right to life, survival and development includes information pertaining to guarantees that capital punishment is not imposed on persons under 18 years, to extrajudicial killings of children and to child suicide prevention.82 The fourth group covers civil rights and freedoms arising from Article 7, Article 8, Articles 13-17 and Article 37 lit. a CRC. However, the latter now forms part of the newly introduced cluster on “Violence against Children”.83 The fifth thematic section entitled “Family Environment and Alternative Care” encompasses Article 5, Articles 9-11, Article 18 para. 1 and para. 2, Articles 19-21, Article 25 and Article 27 para. 4 CRC which particularly guarantee the security of family relationships and alternative forms of care. States Parties are demanded to provide information on family preservation, where applicable, on adoption and inter-country adoption, the alternative care system, the situation regarding children of imprisoned parents and the recovery of maintenance for children.84 The sixth section refers to disability, basic health and welfare of the child (Article 6, Article 18 para. 3, Article 23, Article 24, Article 26 and Article 27 paras 1-3 CRC). States Parties should provide information in respect of children with disabilities and measures taken to ensure their dignity, self-reliance and active participation in the community, in particular to education and cultural activities. They should also report on the implementation of basic health rights, in particular, on primary health care, and on measures to prevent and deal with communicable and non-communicable diseases. The report should also reflect on reproductive health rights of adolescents and measures to promote a healthy lifestyle as well as measures to protect children from substance and drug abuse.85 The State report should also contain details regarding social security and

79 CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, para. 21. See also CRC Committee, General Comment No. 16 CRC/C/GC/16, 2013. 80 CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, para. 24. 81 CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, para. 25. 82 CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, para. 27. 83 See C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 525. See also → Articles 44/45 mn. 33. 84 See J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 37. 85 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 37.

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childcare services and provide information on children’s standard of living and measures taken to reduce poverty and inequality.86 Within the seventh area, the State Party is asked to examine the opportunities of children to participate in educational, leisure and cultural activities (Article 28, Article 29 and Article 31 CRC). Information should be provided about the right to education, including vocational training and guidance, the aims and quality of education, the cultural rights of children belonging to indigenous and minority groups, and children’s access to their rights to play, to rest, leisure, recreation as well as to cultural and artistic activities.87 Finally, in the eighth group, the rights of children in special situations have to be considered (Article 22, Article 30, Articles 32-36, Article 37 lit. b-d and Articles 38-40 CRC). This cluster requires information to be furnished on a wide range of vulnerable groups, including refugee and migrant children, children in street situations, children in exploitative economic situations, children who have been victims of other forms of exploitation, the juvenile justice system and children in armed conflict.88 Nevertheless, from this structural design, it cannot be deduced that specific individual rights or group of rights are more important than others. All rights guaranteed in the CRC enjoy an equal hierarchical rank and have the same practical legal importance.89 The clustering rather reflects the comprehensive nature of the Convention and the interdependence and inter-relatedness of the rights and standards enshrined therein. 90 Due to the fact that the CRC Committee did not have any experience with State reports and the reporting procedure, the 1991 guidelines were inadequate, as evidenced by the course of time. Above all, many State reports lacked information on the financial, economic and personal resources made available for the realisation of children's rights, for example in the fields of education and health.91 Such information was not expressly required by the 1991 guidelines addressing initial State Party reports. The States Parties were merely encouraged to submit those statistical data which they considered relevant. Due to the fact that there was too little information in some of the initial reports, much time was lost to obtaining additional information at the meetings scheduled for discussions between the CRC Committee and the reporting State.92 These deficiencies were taken into account in the 1996 and 2005 guidelines on subsequent, periodic reports. 93 Although the division of the Convention rights into eight cluster areas was maintained, the specifics relating to content to be included in the reports were significantly increased.94 Detailed information on financial resources and the development of these resources in regard to their size in the relevant reporting period CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, paras 35-37. CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, paras 38-39. 88 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 38. 89 See CRC Committee, General Guidelines: Initial Reports, CRC/C/5, 1991, p. 2, para. 8. See also M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 20 et seq. 90 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 13; C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2nd edn. 2020, p. 519, at 525. 91 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 21. 92 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 21. 93 See → Articles 44/45 mn. 17. 94 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 21 et seq. 86

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was required. In addition, in their subsequent reports, the States Parties were demanded to always first refer to the recommendations made by the CRC Committee in its preceding Concluding Observations. Because of the large amount of additional information that the reports now had to contain, the reports of the States became increasingly longer. Against this background, the number of pages was limited to 120 pages in 2002. In this regard, a focus upon essential information was requested.95 30 The treaty-specific guidelines of 201096 were developed with a view to harmonisation of the guidelines on reporting to all the monitoring bodies established by human rights treaties. They replaced the guidelines for subsequent reports from 2009 but again maintained the eight clusters.97 The background to the revision was the idea to synchronise the reporting procedures. In view of the amount of overdue State Party reports on the one hand, and the numerous reporting requirements of most States on the other hand, the (former) UN Secretary-General Kofi Annan had already proposed a modernisation of the State reporting procedure in 2002. The UN expert committees should not only harmonise their requirements for the drafting of State reports, but should also allow States to submit only one report to ensure compliance with all human rights treaties that have been ratified by the respective State.98 The idea of such an overall report was finally dismissed,99 because this simplification would have obviously been at the expense of specific guarantees and particularly vulnerable groups.100 However, the UN SecretaryGeneral has been given the mandate to produce draft guidelines on the harmonisation of the State reporting procedures. The first draft of 2004 was revised several times 101 and became operational in 2009.102 In addition to the State reporting procedure under the CRC, this standardisation also applies to the corresponding procedures under the ICCPR, ICESCR, ICERD, CEDAW, CAT and the Convention on the Protection of All Migrant Workers and Members of their Families.103 However, this did not include the State reports submitted in relation to the two substantive Optional Protocols to the CRC prior to the revised guidelines adopted in 2015.104 31 According to the 2009 harmonised guidelines, which were lastly revised in 2015 on reporting under the international human rights treaty bodies, the reporting procedure consists of two parts: the common core document and the treaty-specific report of a State.105 The common core document shall provide basic, general and current informa95 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 22 et seq. 96 See → Articles 44/45 mn. 17. 97 CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.2, 2010, para. 6. See also CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, paras 17 et seq. 98 UN General Assembly, Report of the Secretary-General, A/57/387, 2002, para. 54. 99 See UN General Assembly, Letter from the Permanent Representative of Liechtenstein, A/58/123, 2003, paras 20-28. 100 H Schöpp-Schilling, Reform der Vertragsorgane des Menschenrechtsschutzes, Vereinte Nationen 2004, p. 183, at 186. 101 See, for example, UN General Assembly, Report of the Secretary-General, A/59/2005, 2005, para. 147. 102 UN Secretary-General, Report on the compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties, HRI/GEN/2/Rev.6, 2009. 103 UN Secretary-General, Report on the compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties, HRI/GEN/2/Rev.6, 2009, para. 1. 104 See → Articles 44/45 mn. 17. 105 UN Secretary-General, Report on the compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties, HRI/GEN/2/Rev.6, 2009, para. 17.

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tion describing the implementation of the treaties that the reporting State has ratified and which may be relevant to all or a number of the respective treaty bodies.106 It should not exceed 42,000 words, and be updated with relevant information upon submission of a treaty-specific report. The treaty-specific report, on the other hand, should not repeat the information contained in the common core document, but should contain supplementary information concerning the implementation of a special human rights treaty, in particular the corresponding developments in legislation and practice, as well as answers to questions raised by the CRC Committee in previous Concluding Observations.107 If applicable, States Parties are also demanded to provide information in relation to relevant General Comments of the CRC Committee, as well as information of a more analytical nature on how laws, legal systems, jurisprudence, the institutional framework, policies and child-specific programmes have an impact on children within the jurisdiction of the State Party, according to their different age groups, from early childhood to adolescence, and their special needs.108 The treaty-specific report should not exceed 21,200 words. According to the treaty-specific guidelines adopted by the CRC Committee in 2010 32 and revised in 2015, the States Parties shall also observe the harmonised guidelines, for example on data collection and development of a report or on the report form.109 In preparation of the report, States Parties should also take into consideration that the basic information on the implementation of human rights is to be contained in a core document. However, the structure of the State report within the framework of Article 44 CRC does not change.110 Above all, the division into eight thematic sections/clusters111 is still foreseen in order to avoid lengthy reports in which all 40 substantive provisions of the CRC are covered seriatim. The cluster structure is also intended to highlight the interrelationship and interconnectedness of children’s rights, thereby ensuring that States Parties do not elect or leave out particular rights, which would have resulted in gaps.112 These structures and ideas are also true for the most recent reporting guidelines is- 33 sued by the CRC Committee in 2015, although they indicate some developments. They include three new clusters to be added to the eight former themes: one on violence against children which spans interrelated themes such as abuse and neglect (Article 19 CRC), prohibition of harmful practices (Article 24 para. 3 CRC), prohibition of sexual exploitation (Article 34 CRC), prohibition of torture and degrading treatment or punishment (Article 37 lit. a and Article 28 para. 2 CRC), and measures to promote recovery and social integration of child victims (Article 39 CRC).113 Two new clusters deal with 106 UN Secretary-General, Report on the compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties, HRI/GEN/2/Rev. 6, 2009, para. 27. 107 UN Secretary-General, Report on the compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties, HRI/GEN/2/Rev.6, 2009, para. 29. 108 See UN Secretary-General, Report on the compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties 2009, HRI/GEN/2/ Rev.6, para. 12. Further see J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 35. 109 CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.2, 2010, para. 6; Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, para. 6. 110 L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 21. 111 See → Articles 44/45 mns. 18 et seq. 112 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 35. 113 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 37.

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the procedure and follow-up of the Optional Protocols to the CRC.114 All these clusters are also used for structuring the country-specific Concluding Observations issued after the dialogue meeting on the State reports with the States Parties. They facilitate their efficient use because they allow the reader to quickly find recommendations of the CRC Committee in the respective area of interest.115 Furthermore, the revised guidelines of 2015 seek to synchronise the reporting cycle as far as periodic reports are concerned and on the condition that periodic reports must report on implementation of the CRC and, at least, of one of the Optional Protocols.116 For the United States of America, which is the only State that has not ratified the Convention but has ratified the two substantive Optional Protocols, the reporting guidelines of 2006 (OPSC) and 2007 (OPAC) continue to be applicable. 34 In view of the UN General Assembly’s Resolution 68/268 (2014) which aims at strengthening and enhancing the effective functioning of the human rights treaty body system by the end of 2020,117 the CRC Committee has recently made a simplified reporting procedure available to States Parties whose periodic reports are due from 1 September 2019 onwards through quarterly invitations.118 The CRC Committee sends to the State Party that voluntarily accepted the simplified reporting procedure a request for specific information, known as “List of Issues Prior to Reporting” (LOIPR) containing up to 30 questions. The State Party's replies to the LOIPR constitute the State Party's report to the CRC Committee. In contrast to the standard reporting procedure, under the LOIPR procedure, States Parties are no longer required to submit to the CRC Committee both a State Party report and written replies to a list of issues, thus reducing the two reporting steps to one.

III. Miscellaneous Guidelines (Article 44 para. 4 to para. 6 CRC) 35

Article 44 para. 4 to para. 6 CRC contain additional requirements with respect to State reports. Thus, pursuant to Article 44 para. 4 CRC, the CRC Committee may request from States Parties further information relevant to the implementation of the Convention. In concrete terms, this means that the CRC Committee can ask the respective State Party to complete its treaty-specific report if the information contained within is insufficient to provide a comprehensive picture of the realisation of children's rights, as required in Article 44 para. 2 CRC.119 According to Article 44 para. 5 CRC, the CRC Committee is obliged to submit a report on its activities to the UN General Assembly via the Economic and Social Council every two years.120 Since the entry into force of the Third Optional Protocol to the CRC on a Communications Procedure,121 Article 16 OPIC extends this reporting obligation to the activities of the CRC Committee in relation to the individual communications procedure, the inquiry procedure and the CRC Committee, Treaty-specific Guidelines: Periodic Reports, CRC/C/58/Rev.3, 2015, paras 10-11. J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 13. 116 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 35. 117 UN General Assembly Resolution 68/268, A/RES/68/268, 9 April 2014, para. 41. 118 UN General Assembly Resolution 68/268, A/RES/68/268, 9 April 2014, paras 1-2; United Nations, Note by the Secretariat, HRI/MC/2015/2, 2015, para. 12. 119 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 16. 120 See, for example, UN General Assembly, Report of the CRC Committee, A/75/41, 2020; A/73/41, 2018; A/71/41, 2016. 121 See → Introduction mn. 7. 114

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inter-State communications procedure. Finally, Article 44 para. 6 CRC obliges the States Parties to make their reports widely available to the public in their own countries. It is noteworthy that if the State Party has not submitted a report by the deadline given to it, the review by the CRC Committee will be postponed until the report is received. In contrast to other human rights committees, the CRC Committee has thus far not scheduled a review in the absence of a submitted State Party report,122 although this would be in its competence and mandate.123

IV. Cooperation with other Organisations (Article 45 lit. a and lit. b CRC) Also, other bodies and organisations of the UN are included in the reporting proce- 36 dure under Article 44 CRC. Their inclusion aims at strengthening international cooperation and collaboration.124 According to Article 45 lit. a and lit. b CRC, UN specialised agencies, UNICEF and other UN organs are entitled to be represented in discussions on and at the consideration of the implementation of children's rights, provided that the concrete area of children's rights falls within the scope of their mandate. Relevant UN specialised agencies include, for instance, the WHO and UNESCO.125 The inclusion of the organisations listed in Article 45 lit. a CRC takes place mainly in the first stage of the reporting procedure, namely in the preparatory working group of the CRC Committee.126 Upon invitation from the CRC Committee, other competent bodies may, in addition to the abovementioned organisations, issue expert opinions or provide expert advice on the implementation of certain articles of the Convention (Article 45 lit. a, sentences 2 and 3 CRC). The CRC Committee may indicate, as appropriate, the time limit within which such reports or advice should be supplied to the Committee.127 Generally, the reports should be submitted three months before the scheduled pre-session, in English preferably. Included under the term “other competent bodies” are the UN specialised agencies and NGOs, but also regional organisations such as the Council of Europe and national human rights institutions.128 These other competent bodies do not necessarily have to be related to the UN. Furthermore, the CRC is the only human rights treaty that explicitly involves non-governmental organisations and civil society in the work of the Committee.129 In practice, the CRC Committee actively seeks collaboration and information exchanges with independent national human rights institutions, including children’s ombudsmen.130 In order to improve cooperation with NGOs, the CRC Committee 122 C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 530. See also → Articles 44/45 mn. 57. 123 See J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 38. 124 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 32. 125 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 287. See also C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2nd edn. 2020, p. 519, at 529. 126 See → Articles 44/45 mns. 4 et seq. 127 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 74 para. 3. 128 See G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 292; M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 32. 129 W Vandenhole, The Procedures Before the UN Human Rights Treaty Bodies: Divergence or Convergence?, 2005, p. 61. 130 See C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 527.

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has issued participation guidelines, which the organisations have to observe in the elaboration of their reports.131 The NGO “Child Rights Connect”, a non-profit association under the Swiss Civil Code based in Geneva, plays regularly an important role in advising civil society how to engage with the reporting process.132 There are clear guidelines for the format, structure and length of civil society reports, which should not exceed 20,000 words.133 37 Through these organisations and civil society, the CRC Committee receives additional information on the situation in the respective countries and can thus verify whether information provided by the State Party corresponds to the reality.134 In fact, by mobilising and empowering groups within and outside the government, reporting has a catalytic effect in promoting internal policy reform. Today, a number of States consult with NGOs in the preparation of their periodic reports. In any case, civil society organisations are growingly involved in the reporting process by writing so-called shadow reports.135 However, it is necessary that the review of these shadow reports be done carefully. In recent years, there have been an increasing number of submissions from NGOs, which appear obviously unchecked and uncontested in the General Comments and Recommendations finally issued by the CRC Committee.136 An analysis of the Concluding Observations of the CRC Committee reveals that interest groups with targeted constituencies have successfully inserted their issue on the CRC Committee agenda. One example concerns the frequent reference to discrimination experienced by lesbian, gay, bisexual, transgender and intersex children without entering into a closer argumentation.137 This fact does certainly not support the idea of a coherent and comprehensible international human rights protection. 38 Civil society’s delegations are heard by the CRC Committee in private and regularly kept confidential.138 In recent times, the CRC Committee has encouraged the participation of children in the pre-hearing sessions, too. In October 2014, the Committee released a document outlining the working methods for the participation of children in the reporting process.139 While the pre-sessional working group is more technical and less child-friendly than children’s meeting, children have the opportunity to attend the working group meeting along with other non-governmental stakeholders and to make presentations to the CRC Committee. Their input is confidential.140 As a further possibility, children’s groups or organisations may request an extra private meeting with the CRC Committee or country rapporteurs during the meeting of the pre-sessional 131 CRC Committee, Report on the twenty-second session, CRC/C/90, 1999, Annex VIII. See also → Articles 44/45 mn. 5. 132 For more detail on the work of “Child Rights Connect”, see A Plevin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 93, at 108-109, and C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2nd edn. 2020, p. 519, at 529. 133 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 39. 134 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 33. 135 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 37-38. 136 S Lux, Die UN-Menschenrechtsausschüsse, Vereinte Nationen 2014, p. 208, at 211 and 214. 137 See, e.g., CRC Committee, Concluding Observations: Cameroon, CRC/C/CMR/CO/3-5, 2017, para. 14; South Africa, CRC/C/ZAF/CO/2, 2016, paras 39-40. 138 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 39. 139 CRC Committee, Working methods for the participation of children in the reporting process, CRC/C/66/2, 2014. 140 CRC Committee, Working methods for the participation of children in the reporting process, CRC/C/66/2, 2014, para. 17.

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working group. These meetings are exclusively for children under the age of 18 years and last one hour.141 Accompanying adults should focus on supporting the children and shall refrain from giving their own views or trying to influence the opinions of the children.142 Similarly, in recent times, children are encouraged to participate in the drafting process of General Comments.143 For instance, before issuing the two Joint General Comments of the CMW Committee and the CRC Committee on the human rights of children in the context of international migration, the two Committees included a series of global and regional consultations with representatives of key stakeholders and experts, involving children as well as children and migrant organisations from every region in the world.144 The purpose of the constructive dialogue under Articles 44 and 45 CRC is not only to 39 monitor the legal situation in the States Parties in order to improve their legislation and administrative practice. Rather, the Convention also aims to provide the States Parties, where necessary, with support beyond the purely normative aspects. Therefore, in addition to the reporting procedure in Article 44 CRC, a further procedure is stipulated in Article 45 lit. b CRC. The CRC Committee is empowered to submit those States reports containing a request for advice or assistance to the organisations and competent bodies referred to in Article 45 lit. a CRC. When forwarding the reports, the CRC Committee acts at its own discretion. In this regard, the CRC Committee differs from other UN human rights committees, which must first submit a request to the UN Secretary-General, who then may decide to take an initiative.145 The CRC Committee regularly encourages the States Parties to accept international support and technical assistance from UNICEF in their Concluding Observations.146 Such a relationship between a reporting procedure and international cooperation does not exist in any other human rights treaty.147

V. Cooperation with the UN General Assembly and the UN Secretary-General (Article 45 lit. c CRC) According to Article 45 lit. c CRC, the CRC Committee may recommend to the UN 40 General Assembly to request the UN Secretary-General to carry out on its behalf studies on specific issues relating to the rights of the child. This competence is intended to give the CRC Committee a further possibility to obtain additional information on particular thematic areas.148 The CRC Committee does not have the mandate to undertake investi141 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 40. 142 CRC Committee, Working methods for the participation of children in the reporting process, CRC/C/66/2, 2014, para. 27. 143 As regards the adoption of General Comments, see → Articles 44/45 mns. 46 et seq. 144 See CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 1; and Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 2. 145 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 31. 146 See, e.g., CRC Committee, Concluding Observations: Guinea-Bissau, CRC/C/Add.177, 2002, para. 45; Gambia, CRC/C/15/Add.165, 2001, para. 55. 147 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 31. 148 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 288. For more detail see C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 534.

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gations or studies itself, which differentiates the CRC Committee from its African counterpart. The African Committee of Experts on the Rights and Welfare of the Child is endowed with this mandate and has exercised it, inter alia, to study the situation of children with albinism in temporary holding shelters in Tanzania and to investigate the impact of armed conflict and further emergency situations upon children in the Central African Republic and South Sudan.149 41 From the systematic connection between Article 45 lit. c CRC and Article 45 lit. a CRC, it is clear that the CRC Committee can also make the same request to the organisations and competent bodies mentioned in the provision. The advantages of such an approach are the acquisition of more extensive information and a more effective implementation of the Convention in the States Parties.150 Thus far, three such studies have been undertaken and fulfil aspects of a monitoring role. The first Special Representative on children in armed conflict played a significant role in relation to the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict.151 It has been supported by a specific monitoring mechanism in relation to the use of children in armed conflict established by the UN Security Council pursuant to Resolutions 1612 (2005), 1882 (2009) and 1998 (2011).152 A second functionary is the Special Representative of the Secretary-General on Violence against Children, and the third appointment is that of an expert to lead a global study on children deprived of their liberty. The mandates of all three representatives have been extended several times.153

VI. CRC Committee’s Competence to Make Recommendations (Article 45 lit. d CRC) 42

After having dealt with an initial or periodic State report, the CRC Committee, under Article 45 lit. d CRC, may make suggestions and general recommendations based on information received pursuant to Articles 44 and 45 CRC.154 These so-called Concluding Observations close the State reporting procedure and address measures which the CRC Committee considers appropriate for the effective implementation of the Convention in the State Party concerned.155 These Concluding Observations are delivered to the reporting State Party through the UN Secretary-General. In this way, States Parties are given the opportunity to comment on the remarks and suggestions made by the CRC Committee in a subsequent report.156 An important issue is the question of an effective follow-up procedure, in which governments are asked to return to the Committee's recommendations.157 If, in its Concluding Observations, the CRC Committee has issued recommendations to a State, this State is under an obligation to report on the remedies it 149 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 55. For more detail see J Sloth-Nielsen, The African Charter on the Rights and Welfare of the Child, in: T Boezaart (ed.), Child Law in South Africa, 2nd edn. 2017, p. 424, at 440-441. 150 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 37. 151 N Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2012, p. 354. 152 For more detail see J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 56. 153 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 55. 154 G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 288. See also → Articles 44/45 mn. 10. 155 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 2019, Rule 75. 156 See → Articles 44/45 mn. 10. 157 L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 25.

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has taken. However, it is often the case that several years pass before the State complies with this obligation.158 Conversely, it should also be pointed out that the final considerations of the CRC Committee occasionally lack the necessary precision and legal consistency.159 Thus, in some considerations and views expressed by the CRC Committee, in addition to comprehensible points, there are also recommendations whose priority is unclear. This applies, for example, to the CRC Committee’s comments on the negative effects of coal emissions on children's health in Germany,160 which completely ignore other emissions which might be detrimental to children.161 In addition to adopting Concluding Observations within the framework of the State 43 reporting procedure, the CRC Committee has further possibilities to improve the realisation of Convention rights in the States Parties. These include, in particular, so-called urgent actions.162 These actions are measures which the CRC Committee can carry out when serious human rights violations of a State Party become known. If such a serious situation exists, the CRC Committee may act on its own initiative and request information, address the public (via all available media channels), or visit the country concerned.163 However, urgent actions must affect neither the constructive dialogue with the State Party nor the sovereignty of the State. This is why the CRC Committee regularly tries to adopt a mediating position in such cases and attaches special requirements to urgent measures.164 The objective of the urgent actions is to compensate for the disadvantages of the reporting procedure. Within the reporting procedure, the CRC Committee can, in principle, only act if a State report has been submitted.165 In the event of a serious human rights violation, the reaction of the CRC Committee would therefore be postponed until the State report is submitted. In contrast, urgent actions allow the CRC Committee to act on its own initiative, immediately after learning of a grave violation of the Convention rights. Since the CRC Committee can also become aware of serious violations through references from other UN bodies or NGOs, urgent actions, to a certain extent, have also been a compensation for the long absence of an individual complaints procedure.166 In practice, the CRC Committee rarely utilises such measures.167 However, it makes a number of submissions on serious children’s rights violations to other bodies.168 The CRC Committee may also devote one or more meetings of its regular sessions 44 to hold “Days of General Discussions” on topics addressed in State reports to which the

158 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 47. 159 See W Kälin, in: H Keller/G Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy, 2012, p. 16, at 71 et seq.; S Lux, Die UN-Menschenrechtsausschüsse, Vereinte Nationen 2014, p. 208, at 211. 160 See CRC Committee, Concluding Observations: Germany, CRC/C/DEU/CO/3-4, 2014, para. 22. 161 See also → Article 24 mn. 32. 162 CRC Committee, Report on the second session, CRC/C/10, 1992, paras 54-58. 163 CRC Committee, Report on the second session, CRC/C/10, 1992, para. 56. Further see M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 35. 164 See CRC Committee, Report on the second session, CRC/C/10, 1992, paras 54, 55. See also M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 34 et seq. 165 See → Articles 44/45 mn. 3. 166 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 35. 167 An example of an “urgent action” can be found in: CRC Committee, Report on the fourth session, CRC/C/20, 1993, para. 52. 168 See, e.g., CRC Committee, Report on the second session, CRC/C/10, 1992, para. 57.

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CRC Committee attaches considerable importance.169 These general discussion days are supposed to serve the clarification of mostly new children’s rights issues and to enhance a deeper understanding of the content and implications of the Convention.170 In order to incorporate additional expertise into the debate the CRC Committee, members may invite other UN bodies, NGOs and expert bodies to take part.171 Typically, the Day of General Discussion concludes with the adoption of summary recommendations of the CRC Committee. Occasionally, these discussion rounds lead to the development of a new Optional Protocol or to the drafting of a General Comment.172 They have also sometimes resulted in a recommendation to the UN General Assembly to request the UN Secretary-General to undertake on its behalf studies on specific issues related to children’s rights.173 For instance, the 1993 Day of General Discussion preceded the recommendation to undertake a study on children in armed conflict and the drafting and adoption of the First Optional Protocol to the CRC on the Involvement of Children in Armed Conflict.174 The Days of General Discussion in 2000 and 2001 led to the recommendation to undertake a study on violence against children which was completed in a report of 2006 led by Paulo Pinheiro. In May 2009, the UN Secretary-General appointed a Special Representative on Violence against Children to promote the implementation of the recommendations made by Pinheiro, which demand, inter alia, a comprehensive prohibition by law of all forms of corporal punishment.175 45 Since 1992, the CRC Committee has organised at least one Day of General Discussion a year. These consultations dealt thematically with questions relating to children's rights to education and training in emergency situations (2008), children’s participation rights (2006), violence against children within the family or school (2001), children in armed conflicts (1992), resources for the rights of children (2007), children of imprisoned parents (2011), the rights of children in the context of international migration (2012), the relationship of children to digital media (2014), and children’s rights and environmental protection (2016), just to name a few. For the last time, the CRC Committee organised a Day of General Discussion in 2018, dedicated to the topic "protecting and empowering children as human rights defenders". The Day of General Discussion on children’s rights in alternative care, scheduled to take place on 18 September 2020, has been postponed to 2021, given the pandemic spread of COVID-19. 46 A further competence of the CRC Committee consists of the elaboration of so-called General Comments. These comments are not expressly provided for in the Convention; Article 45 lit. d CRC speaks only of proposals and general recommendations. However, the CRC Committee has, from the beginning, considered General Comments as part of its mandate.176 The CRC Committee’s approach is supported by the practice of other 169 See CRC Committee, Rules of Procedure, CRC/C/4/Rev.1, 2005, Rule 75. More recently see CRC Committee, Rules of Procedure, CRC/C/4Rev.5, 2019, Rule 79. 170 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 45.05. 171 See A Nolan, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 239, at 244. 172 See J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 22. Further see → Articles 44/45 mn. 46. 173 For more detail see A Plevin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 93, at 102 et seq. 174 J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 22. See also → Article 38 mn. 6. 175 See J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 23. 176 See, e.g., CRC Committee, Provisional Rules of Procedure, CRC/C/4, 1991, Rule 73; Rules of Procedure, CRC/C/4/Rev.1, 2005, Rule 73; Rules of Procedure, CRC/C/4Rev.4, 2015, Rule 77; Rules of Procedure, CRC/C/4Rev.5, 2019, Rule 77.

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treaty-based organs. For instance, the Human Rights Committee also prepares General Comments on questions relating to the understanding of the articles and provisions of the ICCPR and even completely separates them from the reporting procedure since the end of the Cold War.177 Whereas the General Comments adopted by the Human Rights Committee in the 1980 s were quite succinct, consisting only of less than 10 paragraphs, the most recent General Comments comprise around 70 paragraphs and intensively draw upon the previous output of the Human Rights Committee.178 Also with regard to the CRC, General Comments are drafted on the basis of the experience and insight gained by the CRC Committee in the processing of State reports or after “Days of General Discussion” with a view to promoting the Convention’s further implementation and assisting States Parties in fulfilling their reporting obligations. In these comments, which appear at irregular intervals, the CRC Committee summarises its findings on important subject areas and makes them known to all States Parties and to the UN General Assembly.179 When seeking to develop a General Comment, the CRC Committee calls for written submissions from States Parties, civil society and other competent bodies. This level of engagement enjoyed by civil society in the drafting of the CRC Committee’s General Comments is a point of distinction among other human rights treaty bodies.180 The main objective of the drafting of General Comments is to improve the realisa- 47 tion and effective implementation of the rights arising from the CRC. Therefore, the CRC Committee in its General Comments provides interpretative aid to individual Convention articles or draws upon endemic problems.181 Another important aim of General Comments is to reinforce learning and sharing of best practices and to provide information on how rights violations may be prevented. 182 Although General Comments are not legally binding, they are given high authority in practice because of the expertise of the members of the CRC Committee.183 Also, the CRC Committee itself remembers the States Parties that General Comments should be read as authoritative guidance from the Committee.184 In any case, the non-binding legal nature is not to be equated with insignificance on account of the principle of good faith, which is applicable to any treaty under international law.185 In the event of non-compliance, the Contracting States have a duty to justify their actions or omissions.186 Therefore, it would be wrong to regard 177 For more detail see E Klein/D Kretzmer, The UN Human Rights Committee: The General Comments – The Evolution of an Autonomous Monitoring Instrument, German Yearbook of International Law 58 (2015), p. 189-229. 178 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 40 mn. 47. 179 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 38. 180 A Plevin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 93, at 103. 181 For a fuller account, see M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 40; E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 28; E Klein, in: D Merten/H-J Papier (eds.), Handbuch der Grundrechte, Vol. VI/2, § 127 mn. 27. 182 See H Keller/L Grover, in: H Keller/G Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy, 2012, p. 116, at 125. 183 H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2011, p. 7; C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2nd edn. 2020, p. 519, at 537. 184 See, e.g., CMW Committee/CRC Committee, Joint General Comment No. 3(2017) of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 10. 185 E Klein, General Comments, in: J Ipsen/E Schmidt-Jortzig (eds.), Recht – Staat – Gemeinwohl, p. 301, at 307 et seq. 186 C Tomuschat, Human Rights: Between Idealism and Realism, 3 rd edn. 2014, p. 220; B Schäfer, Die Individualbeschwerde nach dem Fakultativprotokoll zum Zivilpakt, 2nd edn. 2007, p. 19 et seq.

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General Comments as pure recommendations. They are rather de facto binding or at least strong indicators of legal obligations. 48 The CRC Committee also uses the opportunity for legal action in the adoption of General Comments. Thus, at the end of various General Comments, the CRC Committee points out that States Parties should disseminate widely the document to all stakeholders, in particular parliaments, governmental authorities, including child protection authorities, and the judiciary. General Comments should be made known to all children and all relevant professionals working with and for children, the media and the society at large.187 General Comments should be translated into relevant languages, and child-appropriate versions and formats accessible to persons with disabilities should be made available. Furthermore, conferences, seminars or other events should be held to share good practices on the best implementation.188 49 The CRC Committee’s collaborative approach when drafting a General Comment does not only include civil society and civil stakeholders but is also reflected in a trend toward engaging with other human rights treaty bodies, as relevant, to prepare comprehensive General Comments in circumstances where their mandates overlap. 189 For example, after an initiative of the CRC Committee, a joint General Comment with the CEDAW Committee addressing State obligations to tackle harmful practices against girls such as female genital mutilation and forced marriage was issued in 2014.190 In 2016, the CRC Committee called for submissions on the situation of street children and concerning children in the context of international migration. The last call ended in two General Comments prepared jointly with the CMW Committee issued in November 2017.191 50 The first General Comment was published by the CRC Committee in 2001 on the aims of education. 192 Until May 2020, 23 further General Comments followed, including a joint General Recommendation/Comment by the CRC Committee and the CEDAW Committee and two joint General Comments by the CRC Committee and the CMW Committee. For instance, in 2002, the CRC Committee adopted a General Comment on the role of independent human rights institutions in the promotion and protection of the rights of the child.193 In 2003, it released three General Comments on HIV/ AIDS and the rights of the child, on adolescent health, and on the general measures of implementation of the Convention.194 In 2005, the CRC Committee addressed the treatment of unaccompanied and separated children outside their country of origin, and the implementation of child rights in early childhood.195 Thereupon, in 2006 and 187 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 52. 188 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 53. 189 A Plevin, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 93, at 103. 190 CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014. 191 See CMW Committee/CRC Committee, Joint General Comment No. 3(2017) of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017; and Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017. 192 CRC Committee, General Comment No. 1, CRC/GC/2001/1, 2001. 193 CRC Committee, General Comment No. 2, CRC/GC/2002/2, 2002. 194 CRC Committee, General Comment No. 3, CRC/GC/2003/3, 2003; General Comment No. 4, CRC/GC/2003/4, 2003; General Comment No. 5, CRC/GC/2003/5, 2003. 195 CRC Committee, General Comment No. 6, CRC/GC/2005/6, 2005; General Comment No. 7, CRC/C/GC/7/Rev.1, 2005.

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2007, followed General Comments on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, and on the rights of children with disabilities,196 as well as on children’s rights in juvenile justice.197 In 2009, the CRC Committee published General Comments on indigenous children and their rights under the Convention, and on the right of the child to be heard.198 General Comment No. 13, issued in 2011, deals with the right of the child to freedom from all forms of violence.199 In 2013, the CRC Committee even issued four General Comments, that are based on the right of the child to have his or her best interests taken as a primary consideration,200 on the right of the child to the enjoyment of the highest attainable standard of health,201 on State obligations regarding the impact of the business sector on children’s rights,202 and on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts.203 General Comment No. 18 dated 14 November 2014 is devoted to the rights of the child on harmful practices. It is the first joint product ("Joint General Recommendation/Comment") by the CRC Committee and the CEDAW Committee.204 According to the experience of both Committees, harmful practices such as genital mutilation, forced marriages and other forms of violence against children, predominantly girls, are based on multiple discriminations on grounds of both sex and age.205 While the CRC Committee relied comparatively scantily on the instrument of Gener- 51 al Comments at the beginning of its activity, the frequency has increased noticeably in recent years. For example, in 2016, two General Comments on public budgeting for the realisation of children’s rights (General Comment No. 19)206 and on the implementation of the rights of the child during adolescence were finished (General Comment No. 20).207 In 2017, General Comment No. 21 on children in street situations, particularly homeless children, was completed.208 In addition, a joint CRC Committee’s project paper with the CMW Committee, dealing with the human rights in the context of international migration, ended up in the enacting of two Joint General Comments of both Committees (General Comments No. 22 and 23 of the CRC Committee/General Comments No. 3 and 4 of the CMW Committee).209 Both Committees underline that these two joint General Comments are stand-alone documents in their own right but 196 CRC Committee, General Comment No. 8, CRC/C/GC/8, 2006; General Comment No. 9, CRC/C/GC/9, 2006. 197 CRC Committee, General Comment No. 10, CRC/C/GC/10, 2007. 198 CRC Committee, General Comment No. 11, CRC/C/GC/11, 2009; General Comment No. 12, CRC/C/GC/12, 2009. 199 CRC Committee, General Comment No. 13, CRC/C/GC/13, 2011. 200 CRC Committee, General Comment No. 14, CRC/C/GC/14, 2013. 201 CRC Committee, General Comment No. 15, CRC/C/GC/15, 2013. 202 CRC Committee, General Comment No. 16, CRC/C/GC/16, 2013. 203 CRC Committee, General Comment No. 17, CRC/C/GC/17, 2013. 204 CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014. 205 CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, paras 5 et seq. See also S Lux, Rechte des Kindes: 65. bis 67. Tagung 2014, Vereinte Nationen 2015, p. 133-134. 206 CRC Committee, General Comment No.19, CRC/C/GC/19, 2016. 207 CRC Committee, General Comment No. 20, CRC/C/GC/20, 2016. 208 CRC Committee, General Comment No. 21, CRC/C/GC/21, 2017. 209 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017; and Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017.

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complement each other and should be read and implemented together.210 In 2019, the CRC Committee issued General Comment No. 24 (2019) on children’s rights in the child justice system with the aim of replacing General Comment No. 10 (2007). The new General Comment No. 24 (2019) reflects the developments that have occurred since 2007 as a result of the promulgation of international standards, the CRC Committee’s statements, new knowledge about child and adolescent development, and evidence of effective practices, including those relating to restorative justice. 211 But not only the frequency has increased in recent years, in terms of content, the latest General Comments of the CRC Committee have gained in-depth and legal stringency compared to the previous documents.212

VII. Embedding of Articles 44 and 45 CRC into the System of International Human Rights Protection 52

The human rights monitoring bodies at the UN level have different procedures at their disposal that enable them to control the implementation of the respective human rights treaty. Without exception, all core human rights treaties provide for an obligatory State reporting procedure before an independent treaty body to monitor implementation.213 By virtue of treaty ratification, States Parties must submit periodic reports to each competent committee, ranging from every two to every five years, on the legislative, administrative, judicial and other measures adopted to give effect to human rights obligations.214 As far as can be seen, it was Sweden that submitted the first-ever State report to the CRC Committee in September 1992. Today, the committees for the nine core human rights treaties receive on average 125 State reports each year. 215 The treaty bodies largely apply the same general framework in examining reports in order to establish a constructive dialogue with the reporting State.216 This reporting system, which regularly leads to “Concluding Observations” and "General Recommendations/Comments” by the respective human rights committee, has become a crucial backbone for monitoring human rights treaties in order to uncover and prevent future systemic problems in the Contracting States.217 From the very beginning of this form of monitoring, it was assumed that the review of the State reports would lead to a fruitful dialogue between the States Parties and the monitoring body, thereby contributing to a

210 CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 1; Joint General Comment No. 4 of the CMW Committee and No. 23 of the CRC Committee, CMW/C/GC/4-CRC/C/GC/23, 2017, para. 2. 211 CRC Committee, General Comment No. 24, CRC/C/GC/24, 2019, para. 1. 212 See S Schmahl, Auswirkungen der UN-Kinderrechtskonvention auf die deutsche Rechtsordnung, Recht der Jugend und des Bildungswesens 2014, p. 125, at 128. 213 See Article 40 ICCPR, Article 16 ICESCR, Article 9 ICERD, Article 18 CEDAW, Article 19 CAT and Article 73 CMW. 214 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 15. 215 See, e.g., UN General Assembly, Report of the Secretary-General: Status of the Human Rights Treaty Body System, A/73/309, 2018, para. 11. 216 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 15-16. 217 See S Schmahl, in: A Pollmann/G Lohmann (eds.), Menschenrechte. Ein interdisziplinäres Handbuch, 2012, p. 390, at 391. See also N Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2012, p. 342.

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progressive development of human rights.218 Indeed, some of the recommendations of the monitoring committees meet with governmental acceptance and lead to measures or new legislative initiatives that conform to the views expressed by the committees. For the most parts, State Party reports as well as the shadow reports issued by NGOs and civil society have steadily improved in quality, and the progress made by States Parties in human rights protection is in general positive and multi-layered.219 Over the years, more and more States have developed the capacity to collect, systematise and analyse information. The reporting and review process is increasingly intervening in domestic politics and national strategies.220 Recent cross-national research shows that the more frequently States participate in the reporting process, the better they perform on relevant indicators or human rights outcomes. In sum: While self-reporting is not a panacea for protecting human rights, it is a valuable opportunity to persuade, learn, build capacity, mobilise politically and contribute to human rights accountability.221 In particular, the repeated dialogue with the human rights treaty bodies, including the CRC Committee, has contributed to a decrease in discrimination.222 On the other hand, the weaknesses of such a State reporting system are also evident, 53 based on States' own reports on their domestic human rights situation.223 The human rights treaty monitoring depends heavily on States Parties to provide the raw material for human rights oversight.224 This deficit is only partially mitigated by the parallel or shadow reporting of civil society, as these are mostly focused on specific issues and are guided by sometimes strong political and lobbying interests. Occasionally, the system of State reporting is characterised as an “idle diplomatic ritual”.225 In addition, the system of State reporting often suffers from late-filed reports and cannot be systematically embedded in an effective system of monitoring.226 Reports also vary across countries and over time in their structure and quality.227 Some States simply refuse to render self-critical reports. Furthermore, there are some pitfalls that are inherent in the structure of the UN treaty system. These concerns mainly the lack of resources which affects not only the staffing available to the CRC Committee members but also the field trips, transaction and all manner of supporting activities.228 Also, the sheer volume of available information is a burden to all the UN committees, which drown in reports, 218 See J Crawford, in: P Alston/J Crawford (eds.), The Future of UN Human Rights Treaty Monitoring, 2000, p. 1, at 1. 219 See N Sahovic/J Doek/J Zermatten, The Rights of the Child in International Law, 2012, p. 342, 350. 220 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 3. 221 See C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 21 et seq. See also K Arts, Twenty-five Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges, Netherlands International Law Review 61 (2014), p. 267, at 291. 222 See C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 2. 223 D Shelton, in: RB Lillich/H Hannum/SJ Anaya/D Shelton (eds.), International Human Rights. Problems of Law, Policy and Practice, 4th edn. 2006, p. 588, at 589. 224 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 7. 225 See, e.g., J Connors, in: A Bayefsky (ed.), The UN Human Rights Treaty System in the 21 st Century, 2000, p. 3, 11; A Clapham, in: P Alston/J Crawford (eds.), The Future of UN Human Rights Treaty Monitoring, 2000, p. 176. 226 S Müller, Menschenrechtsmonitoring: Praxis, allgemeine Regeln und Zukunft außergerichtlicher Schutzverfahren, 2011, p. 211. 227 C Creamer/BA Simmons, The Proof is in the Process: Self-reporting under International Human Rights Treaties, American Journal of International Law 114 (2020), p. 1, at 19. 228 K Arts, Twenty-five Years of the United Nations Convention on the Rights of the Child: Achievements and Challenges, Netherlands International Law Review 61 (2014), p. 267, at 304.

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submissions, summaries and background briefings.229 Therefore, it is not astonishing that the UN human rights treaty system as a whole has come under strong pressure. Some States Parties not only lack commitment to their reporting obligations and their financial contributions to the system, but also openly question the working methods and the legitimacy of the UN treaty bodies.230 Also, the expert committees themselves increasingly urge for more effective reporting concepts and advocate better resource allocation.231 Therefore, a thoroughly urgent reform process of the UN human rights treaty bodies system started in 2014 and is expected to be concluded by the end of 2020.232 54 The text of the CRC provides only the State reporting procedure (Article 44 CRC) which is obligatory for all States Parties. Over the course of time, however, the question has arisen as to whether this periodic monitoring option alone is sufficient for the sake of an effective human rights protection. Various human rights treaties also provide for the possibility of an inter-State or individual communications procedure.233 These instruments allow other States Parties or individuals to submit a complaint to the competent committee whenever a (different) State Party has presumably infringed the guarantees under the Convention. These inter-State and individual complaint procedures have the advantage that they open up a remedy independent from the State’s periodic reporting mechanism and specific to the case at hand.234 In addition to the State reporting procedure, which remains indispensable due to the most endemic problems for the continuous and structured improvement of the human rights situation in a State, the individual communications procedure is of real benefit to human rights protection because of its individual case-by-case approach.235 Its advantage further lies in strengthening the legal character of the treaty provisions.236 55 The introduction of an individual communications procedure to the CRC was early deemed to be particularly necessary, since many States understood the Convention for a long time only as a “political call to child-friendly behaviour”, and not as a binding treaty.237 The strengthening of the legal character of the Convention through an individual communications procedure results mainly from the fact that prior to the initiation of such a procedure, domestic remedies before national courts or tribunals must be exhausted. National courts and authorities have therefore to consider the Convention and, if ratified, the Optional Protocols to the CRC when examining a child-rights-related case.238 It is true that the individual communications procedure cannot lead to 229 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 44. 230 For more detail see N Reiners, Kontroversen um die Reform der UN-Menschenrechtsvertragsorgane, Vereinte Nationen 2018, p. 266-271. 231 For more detail see E Klein, Stimmen Zweck und Mittel im internationalen Menschenrechtsschutz überein? in: M Wittinger/R Wendt/G Ress (eds.), Verfassung – Völkerrecht – Kulturgüterschutz, 2011, p. 541, at 546 et seq. 232 See UN General Assembly Resolution 68/268, A/RES/68/268, 9 April 2014, para. 41. 233 M Verheyde/G Goedertier, Articles 43-45, in: A Alen et al. (eds.), A Commentary on the United Nations Convention on the Rights of the Child, Vol. 43, 2006, p. 4 et seq. 234 N Weiß, Überblick über die Erfahrungen mit Individualbeschwerden unter verschiedenen Menschenrechtsabkommen, Archiv des Völkerrechts 42 (2004), p. 142-156. 235 S Schmahl, in: A Pollmann/G Lohmann (eds.), Menschenrechte. Ein interdisziplinäres Handbuch, 2012, p. 390, at 395. See also → Individual Communications Procedure mns. 1 et seq. 236 N Weiß, Wäre ein Individualbeschwerdeverfahren auch im Rahmen der Kinderrechtskonvention sinnvoll?, MenschenRechtsMagazin 2001, p. 85, at 95; T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 118. 237 See L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 18. 238 T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 118.

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a binding judgment or sanctions. The CRC Committee merely adopts non-binding views (see Article 10 para. 5 OPIC), which are not legally relevant for international or national courts.239 According to Article 31 para. 3 VCLT, which reflects customary international law, competence for the further development of international treaties is only granted to the subsequent agreements and practice of the Contracting States. 240 The CRC Committee has not been assigned a mandate for a binding interpretation of the text of the treaty either in the Convention or in one of the Optional Protocols.241 Yet, given the experience of other human rights monitoring bodies, the decisions and views taken in relation to the individual complaint procedures are regularly recognised by the respective States Parties and duly considered as recommendations to be implemented in the national legal order.242 It is no accident that the African Committee of Experts on the Rights and Welfare of the Child has, since quite a time, been responsible for individual communications on the basis of the African Charter on the Rights and Welfare of the Child.243 In view of the positive experiences with the individual complaint procedure before 56 the other human rights monitoring bodies, a long struggle was made to establish also an optional individual communications procedure under the CRC. One of the major objections to this proposal, the lack of justiciability of the rights enshrined in the Convention, has never been convincing.244 Even economic, social and cultural rights which entail positive obligations upon the States Parties to endeavour a certain objective laid down in the Convention (so-called “obligations of conduct”) and the child-friendly adequacy of an administrative or legislative programme can be brought under a (limited) legal control.245 It is therefore to be welcomed that the Third Optional Protocol to the CRC on a Communications Procedure has entered into force in 2014, which, in addition to the inquiry and the inter-State communications procedures, contains in particular the possibility of an individual communications procedure for children after unsuccessful exhaustion of remedies before national courts.246 After the UN General Assembly had adopted the Protocol text in December 2011,247 OPIC has been opened for signature on 28 February 2012 and entered into force following the deposit of the tenth instrument of ratification by Costa Rica on 14 April 2014.248 There is no doubt that the individual

239 See, for instance, (German) Federal Constitutional Court, Judgment of 26 July 2016, 1 BvL 8/15, para. 90, with further references. 240 Cf. M Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, 2009, Article 31 mn. 37. 241 Similar assessment with regard to the ICRPD: (German) Federal Constitutional Court, Judgment of 26 July 2016, 1 BvL 8/15, para. 90. 242 L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 18. 243 E Baimu, Children, International Protection, in: R Wolfrum (ed.), Max Planck Encyclopedia of International Law, Online-Edition, www.mpepil.com, mn. 25. See also → Individual Communications Procedure mn. 32. 244 See G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 368 et seq. 245 See E Riedel, International Covenant on Economic, Social and Cultural Rights, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 18. A more dynamic approach is raised by H Cremer, Menschenrechtsverträge als Quelle von individuellen Rechten, Anwaltsblatt 2011, p. 159, at 161. 246 See UN General Assembly, Report of the Open-ended Working Group, A/HRC/17/36, 2011, paras 36-46. For more detail see → Individual Communications Procedure mns. 1 et seq. 247 UN General Assembly Resolution 66/138, A/RES/66/138, 19 December 2001. 248 As to the current ratification status of OPIC see → Introduction mn. 7.

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communications procedure will lead to a solidification of children's rights on the long run.249

VIII. Overview on the Practice of State Reporting 57

By the end of May 2020, more than 800 initial, second and subsequent periodic reports, including combined periodic reports, were submitted to the CRC Committee pursuant to Article 44 CRC. Furthermore, the CRC Committee received 121 initial and subsequent periodic reports under OPAC, and 118 initial reports and subsequent periodic reports under OPSC.250 After the submission of the initial reports of Tonga and Palestine in 2019,251 all States Parties have submitted the initial report under Article 44 CRC and more than two-thirds of the States Parties have submitted the second report. However, many State reports are often submitted late or even with a significant delay, outside of the stipulated deadline.252 The CRC Committee regularly reminds a State Party, whose report does not arrive in time and if this admonition does not lead to a reaction, that it is in principle competent to examine the situation of children's rights without having received the respective State report. However, the CRC Committee lacks the necessary working capacity to implement such measures in the event of delays in reporting, so that these defaulting States Parties have not been reviewed so far. 253 The CRC Committee, which merely meets for twelve weeks a year and which, only temporarily, has had an opportunity to work in two chambers in order to double its capacity to review States reports,254 has a backlog of around two to three years of working time.255 Besides this enormous workload and backlog, the CRC Committee continues to face the challenges of late or non-reporting by State Parties, the limited participation of children in the reporting process and the lack of sufficient follow-up to the Concluding Observations.256

249 See Y Lee, Communications Procedure under the Convention on the Rights of the Child: 3 rd Optional Protocol, International Journal of Children’s Rights 18 (2010), p. 567, at 576 et seq.; T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 117 et seq. 250 For the figures of 2018, see J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 34. 251 See, CRC Committee, Concluding Observations: Tonga, CRC/C/TON/CO/1, 2019; Palestine, CRC/C/PSE/CO/1, 2020. 252 L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 16. One example is the delayed initial report of Tonga, see CRC Committee, Concluding Observations: Tonga, CRC/C/TON/CO/1, 2019, para. 2. 253 J Heymann/K McNeill/A Raub, Assessing Compliance with the CRC: Indicators of Law and Policy in 191 Countries, International Journal of Children’s Rights 22 (2014), p. 425 et seq. 254 See → Article 43 mn. 6. 255 L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 17, idem, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 9, at 10. See also C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 532. 256 See J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 23.

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[Concluding Provisions]

Articles 46 to 54 [Concluding Provisions] Article 46 The present Convention shall be open for signature by all States.

Article 47 The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 48 The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 49 1. The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.

Article 50 1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval. 2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties. 3. When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted.

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[Concluding Provisions]

Article 51 1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General.

Article 52 A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

Article 53 The Secretary-General of the United Nations is designated as the depositary of the present Convention.

Article 54 The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS THEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective governments, have signed the present Convention. I. Generalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Particularities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Reservations (Article 51 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Authentic Language Versions (Article 54 CRC) . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 6 15

I. Generalities 1

Articles 46 to 54 CRC contain the final provisions on signing, ratification, accession, entry into force, amendments, reservations and termination, which are typical of international treaties, and draw on the 1969 Vienna Convention on the Law of Treaties. The provisions have been modelled on other human rights treaties, so that almost identical parallels exist between, e.g., Articles 46 and 47 CRC and Article 25 CAT, Article 48 CRC and Article 26 CAT, and Article 49 CRC and Article 27 CAT.1 It is striking, however, that the CRC does not contain a ‘federal States clause’ similar to Article 50 ICCPR or to Article 28 ACHR. Nevertheless, federal States are bound to the same extent as unitary

1

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G Dorsch, Die Konvention der Vereinten Nationen über die Rechte des Kindes, 1994, p. 296 et seq.

[Concluding Provisions]

Art. 46 to 54

States under the CRC, too. This is clearly highlighted by the CRC Committee in several instances with regard to the obligations set forth in Article 4 CRC.2 According to Article 46 CRC, the CRC shall be open for signature by all States 2 at the UN headquarters in New York. Pursuant to Article 47 CRC, the Convention requires ratification in order for it to become internationally binding through deposit of the instruments of ratification with the UN Secretary-General, who under Article 53 CRC is also designated as the depositary of the Convention. By ratification is meant the manifestation in official form of a definitive consent to be bound by the treaty, usually by the Head of State. In democratic States, ratification is usually preceded by parliamentary approval.3 Also, the instruments of accession shall be deposited with the UN Secretary-General. Accession replaces signature and ratification, and has the same effect as ratification. Article 48 CRC provides that accession to the Convention shall remain open to all States. The Convention is a so-called “open treaty”, which means that, different to Article 48 para. 1 ICCPR, it is not necessary under Article 48 CRC that the ratifying State is a member of the United Nations or has been invited by the UN General Assembly to become a party to the Convention.4 Thus, two non-members of the UN, namely Niue and the Cook Islands, have also ratified the CRC. Whether or not an entity is also a “State” in an objective sense falls to be determined in accordance with established principles of international law. For this reason, Taiwan has not ratified the CRC. On the other hand, two entities which have only an observer status within the United Nations, the Holy See and Palestine, have ratified the CRC, although they are not regarded as (independent) States.5 In any case, international organisations, including the European Union, cannot become parties to the Convention. Article 49 para. 1 CRC stipulates that the entry into force of the Convention takes 3 place on the 30th day following the date of deposit with the UN Secretary-General of the 20th instrument of ratification or accession. The CRC was adopted by the UN General Assembly on 20 November 1989.6 As early as August 1990, it was ratified by 20 countries, after Bangladesh, Benin and Sudan had deposited their instruments of ratification on 3 August 1990, and came into force on 2 September 1990. 7 For each State ratifying or acceding to the Convention after the deposit of the 20th instrument of ratification or accession, the CRC shall enter into force on the 30th day after the deposit by such State of its instrument of ratification or accession.8 Prior to the entry into force, a State which has signed the Convention text, must refrain from defeating the object and purpose of the treaty (Article 18 VCLT). In observance of the requirements set out in Article 39 VCLT, the Convention can 4 be amended in accordance with the rules set forth in Article 50 CRC. Like Article 29 ICESCR and Article 51 ICCPR, Article 50 CRC provides a quite complex and lengthy procedure for amendment. 9 An amendment adopted in accordance with Article 50 para. 1 CRC shall enter into force when it has been approved by the UN-General Assembly and accepted by a two-thirds majority of States Parties. Until now, this option has only been used once. This was done in relation to the number of members of the See → Article 4 mn. 6. Similarly, with regard to Article 48 ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 48 mn. 2. 4 See M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 48 mn. 5. 5 See → Introduction mn. 10. 6 UN General Assembly Resolution 44/25, A/RES/44/25, 20 November 1989. 7 See L LeBlanc, The Convention on the Rights of the Child, Leiden Journal of International Law 4 (1991), p. 281, at 281. See also → Introduction mn. 4. 8 For more detail see → Introduction mn. 10. 9 M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 51 mn. 1. 2 3

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CRC Committee as regulated in Article 43 para. 2 CRC. According to the original Convention text, ten experts were envisaged to form the CRC Committee. Due to the everincreasing scope of work of the CRC Committee, it became however necessary over time to increase the number of experts.10 Therefore, on 21 December 1995, the word “ten” was replaced unanimously by the word “eighteen” in Article 43 para. 2 CRC.11 The amendment entered into force on 18 November 2002.12 5 According to Article 56 para. 1 VCLT, an international treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless it is established that the parties intended to admit the possibility of denunciation or withdrawal, or a right of denunciation or withdrawal may be implied by the nature of the treaty. Article 52 CRC, similar to Article 58 ECHR, but in contrast to the ICCPR,13 provides for the possibility of denunciation of the Convention. A written notification addressed to the UN Secretary-General is required. Denunciation becomes effective one year after the date of receipt of the notification by the UN Secretary-General. According to Article 70 VCLT, the denunciation or withdrawal of a treaty has effects ex nunc. It releases the parties from any further obligation to perform the treaty but it does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. This means that previously accepted rights of the child and obligations upon the State Party as well as the resulting legal situations remain unaffected by an eventual termination of the CRC. To date, no State Party has given notice of denunciation or withdrawal of the CRC.

II. Particularities 1. Reservations (Article 51 CRC) 6

According to Article 51 CRC, the States Parties may declare reservations to the CRC. Often, for whatever reason, States are interested in ratifying and enforcing the Convention, but do not agree with one or more guarantees enshrined therein. In these cases, the legal figure of the reservation creates a way out of the dilemma. According to the law of treaties, as codified in Article 2 para. 1 lit. d VCLT and enshrined in international customary law, a reservation means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. The form of the instrument is irrelevant. The decisive factor is rather that the State, by its unilateral declaration, aims at the exclusion or amendment of the legal effect of one or more specific treaty provisions. Any unilateral statement that excludes or modifies the rights of a treaty constitutes a reservation regardless of its formal designation.14 However, the prerequisite for this is that the reservation must be declared at the latest with the formal ratification of the treaty. The general See → Article 43 mn. 2. See CRC Committee, Note by the Secretary-General, CRC/SP/25, 1998, para. 4; UN General Assembly Resolution 50/155, A/RES/50/155, 28 February 1996, para. 1. 12 See CRC Committee, Report on the thirty-second session, CRC/C/124, 2003, para. 4. 13 See S Schmahl, in: H-G Ziebertz (ed.), Menschenrechte, Christentum und Islam, Berlin 2010, p. 27, at 36. 14 See L LeBlanc, Reservations to the Convention on the Rights of the Child, International Journal of Children’s Rights 4 (1996), p. 357, at 360. See also E Rossa, Kinderrechte: Das Übereinkommen über die Rechte des Kindes im internationalen und nationalen Kontext, 2013, p. 35 et seq. – Similarly, in regards to the ICCPR, Human Rights Committee, General Comment No. 24: Issues Relating to Reservations 10

11

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dilemma of reservations is that they usually lead to an expansion of the circle of the parties to an international treaty, but at the same time they minimise the integrity of the treaty, since the obligations resulting therefrom differ between the parties. 15 Pursuant to Article 51 para. 1 CRC, the UN Secretary-General shall receive and cir- 7 culate to all States the text of reservations made by States at the time of ratification or accession. According to Article 51 para. 2 CRC, and in line with the general international law provision of Article 19 lit. c VCLT, those reservations which are incompatible with the object and purpose of the Convention, shall not be permitted. If a reservation is inadmissible, it is in principle void ex tunc.16 If a reservation is permissible, it excludes or modifies the affected treaty provision from the binding effect. Yet, the assessment as to which reservations are consistent with the Convention is ultimately reserved for the States Parties. 17 With the exception of the competency of the CRC Committee to impart general recommendations pursuant to Articles 44, 45 CRC and Article 10 para. 5, sentence 3 OPIC, the Convention does not provide for an independent and legally binding instrument for the review of the permissibility of reservations. Therefore, it is up to the Contracting States to accept a reservation or to object to a reservation which they deem to be incompatible with the object and purpose of the treaty. Due to the principle of reciprocity and under the general requirements of Articles 20, 21 VCLT, as a result of objection, the provision referred to in the reservation modifies for the reserving State in its relations with the objecting party the provisions of the treaty to which the reservation relates, and it modifies those provisions to the same extent for that other party in its relations with the reserving State.18 The reservation does however not modify the provisions of the treaty for the other parties to the treaty inter se. The possibility of declaring reservations is often raised in international treaty practice. Human rights treaties are particularly affected. Yet, it can be argued that any reservation to a human rights treaty contravenes the 8 object and purpose of that treaty within the meaning of Article 19 lit. c VCLT, with the result that an unconditional obligation of the reserving State to the treaty as a whole arises.19 However, such an approach distorts the reserving State’s legal will, because an adoption of a treaty under reservation cannot be considered as an unconditional consent to all treaty provisions.20 Practice has shown that, if human rights monitoring bodies simulate such a consent or decide that the reservation is incompatible with the object and purpose of the human rights treaty, and that, accordingly, the monitoring body is not precluded from considering an individual communication, the reserving State reMade upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, 1994, para. 4. 15 E Klein, Der Shari’a-Vorbehalt zu internationalen Menschenrechtsverträgen, in: C Nottmeier/ M Richter/TI Schmidt (eds.), Leitung, Recht und Arbeit in der Kirche, 2019, p. 225, at 227. 16 See ECtHR, Judgment of 29 April 1988, No. 10328/83, para. 50 – Belilos v. Switzerland. 17 L LeBlanc, Reservations to the Convention on the Rights of the Child, International Journal of Children’s Rights 4 (1996), p. 357, at 373. 18 See B Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge, 1972, p. 161 et seq. 19 See Human Rights Committee, General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, ICCPR/C/21/Rev.1/Add.6, 1994, para. 8; ECtHR, Judgment of 29 April 1988, No. 10328/83, para. 60 – Belilos v. Switzerland. See also T Giegerich, Vorbehalte zu Menschenrechtsabkommen: Zulässigkeit, Gültigkeit und Prüfungskompetenzen von Vertragsgremien, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 55 (1995), p. 713, at 743 et seq. 20 See R Baratta, Should Invalid Reservations to Human Rights Treaties Be Disregarded?, European Journal of International Law 11 (2000), p. 413, at 422. Different assessment by W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. 46-54.06-46.

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sponds with the termination of the whole treaty. This has been the case, for instance, with Trinidad and Tobago which denounced the Optional Protocol to the ICCPR after the Human Rights Committee had examined the merits of an individual communication regarding the death penalty although Trinidad and Tobago had made a reservation with regard to the competence of the Human Rights Committee to consider cases of persons sentenced to the death penalty.21 9 There are recent indications that the CRC Committee regards certain reservations as incompatible with the aim and purpose of the Convention within the meaning of Article 51 para. 2 CRC. In particular, it qualifies reservations to Article 19 CRC and Article 24 para. 3 CRC as being inadmissible and strongly recommends the States Parties concerned to withdraw their reservations.22 Also with regard to Article 30 CRC, the CRC Committee repeatedly urges States Parties to withdraw their reservations. 23 Moreover, despite the legal restrictions which follow from a reservation being entered, the CRC Committee has nevertheless made detailed comments regarding the treatment of minority groups in the respective State Party, including a strong recommendation regarding the protection of the social, economic and cultural rights of minority groups such as traveller and Roma children.24 10 On the other hand, the practice of the Convention’s application shows that there are also some superfluous reservations which contradict neither the wording nor the objective of the Convention. For instance, in contrast to every other article in the Convention, Article 21 CRC does not apply to all States Parties, but only to those that recognise and/or permit the system of adoption.25 During the drafting of the Convention, several Islamic States objected against any normative form of facilitation of the process of adoption, due to the prohibition on adoption under Sharia law.26 Nevertheless, a number of Islamic States or States with large Islamic populations, such as Bangladesh, Jordan, Kuwait and the Maldives, have entered reservations to Article 21 CRC. The CRC Committee has rightly noted that such reservation is “superfluous” as Article 20 para. 3 CRC recognises kafalah of Islamic law as alternative care, and as Article 21 CRC expressly and exclusively refers to those States Parties that recognise or permit the system of adoption.27 11 Approximately 30 per cent of the States Parties have ratified the CRC with reservations.28 There are only few provisions of the Convention to which no reservations or declarations have been entered by States Parties. One prominent example is Article 21 See Human Rights Committee, Kennedy v. Trinidad and Tobago, Views adopted on 31 December 1999, No. 845/1999, CCPR/C/67/D/845/1999, paras 6 et seq. For more detail, see C Stahn, Vorbehalte zu Menschenrechtsverträgen, Europäische Grundrechte Zeitschrift 2001, p. 607-619; S Schmahl, Die völkerrechtsdogmatische Einordnung internationaler Menschenrechtsverträge, Juristische Schulung 2018, p. 737, at 741. 22 See CEDAW Committee/CRC Committee, Joint General Recommendation No. 31 of the CEDAW Committee and General Comment No. 18 of the CRC Committee, CEDAW/C/GC/31-CRC/C/GC/18, 2014, para. 13. 23 See, e.g., CRC Committee, Concluding Observations: France, CRC/C/15/Add.240, 2004, para. 60; CRC/C/FRA/CO/4, 2009, para. 9; CRC/C/FRA/CO/5, 2016, para. 6. See also CRC Committee, Concluding Observations: Turkey, CRC/C/15/Add.152, 2001, para. 10. See also → Article 30 mn. 5. 24 See CRC Committee, Concluding Observations: France, CRC/C/FRA/CO/4, 2009, para. 101. Further see S Harris-Short/J Tobin, Article 30, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1153, at 1161. 25 See P Alston/N Cantwell/J Tobin, Article 21, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 759, at 766. 26 See → Article 21 mn. 2. 27 CRC Committee, Concluding Observations: Jordan, CRC/C/15/Add.125, 2000, para. 10. 28 See L LeBlanc, Reservations to the Convention on the Rights of the Child, International Journal of Children’s Rights 4 (1996), p. 357, at 364. For more detail with respect to individual reservations see W

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23 CRC which establishes disability-specific rights of the child, where no reservation has been made.29 But other provisions have a high number of reservations. This is true, for instance, with regard to Article 32 CRC. Governments have stated a number of areas of concern, including the progressive implementation of the prohibition of economic exploitation of children, since being aware that it is not practical immediately to prescribe minimum ages for admission to each and every area of employment.30 A number of States have also entered reservations to Article 14 CRC in order to prevent the child’s freedom to choose, adopt or change his or her religion or belief.31 The CRC Committee has called into question these reservations on the ground that the broad and imprecise nature of the reservation potentially gives rise to infringements of freedom of religion and raises questions of compatibility with the object and purpose of the Convention.32 Against this background, for instance, the Government of Morocco withdrew its reservation with regard to Article 14 CRC on 19 October 2006. The amount of the reservations entered to the Convention remains at an average 12 level compared to other human rights treaties. For example, between 25 per cent and 40 per cent of the countries ratifying ICERD, CEDAW or CAT have done so with reservations.33 However, most of the reservations to the CRC are of a general nature and have the purpose of protecting cultural traditions and social customs and attitudes within the States. In particular, there are several States which accept the Convention only insofar as its provisions do not contradict Islamic Sharia law.34 For example, Iran has explicitly emphasised the primacy of Islamic law when ratifying the CRC. Djibouti has reserved the right to regulate its religious and traditional customs.35 Somalia, which after long wrestling only joined the Convention in October 2015,36 has declared the far-reaching reservation that it is not bound by provisions of the CRC that are incompatible with the principles of Islamic Sharia.37 Numerous, mostly Western, States have raised objections to the Sharia reservations, with which they point out the inadmissibility of the reservations.38 In contrast, the CRC Committee has so far responded rather cautiously to the so-called Sharia reservations, merely pointing out that they raise concerns with regard to

Schabas, Reservations to the Convention on the Rights of the Child, Human Rights Quarterly 18 (1996), p. 472, at 477 et seq. 29 See E Chilemba, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 359, at 365. 30 See, e.g., the Indian reservation to Article 32 CRC, in: CRC Committee, Note by the Secretary-General, CRC/C/2/Rev.3, 1994, p. 20. Defending the Indian reservation for reasons of culture and historical power differentials between industrialised and developing countries: G Sanghera, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 455, at 475. 31 See, e.g., the reservations by Bangladesh, Jordan, Iraq, Kuwait, Malaysia, Maldives, Oman, Syria and the United Arab Emirates. Further see S Langlaude Doné/J Tobin, Article 14, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 475, at 489. 32 See, e.g., CRC Committee, Concluding Observations: Jordan, CRC/C/15/Add.125, 2000, paras 12-13. 33 See L LeBlanc, Reservations to the Convention on the Rights of the Child, International Journal of Children’s Rights 4 (1996), p. 357, at 366. Further examples are mentioned by E Klein, Universeller Menschenrechtsschutz – Realität oder Utopie, Europäische Grundrechte Zeitschrift 1999, p. 109, at 110 et seq.; W Schabas, Reservations to the Convention on the Rights of the Child, Human Rights Quarterly 18 (1996), p. 472, at 474. 34 See L Krappmann, in: S von Schorlemer/E Schulte-Herbrüggen (eds.), 1989-2009: 20 Jahre UN-Kinderrechtskonvention, 2010, p. 9, at 13. 35 See C Tomuschat, Human Rights: Between Idealism and Realism, 3 rd edn. 2014, p. 54. 36 See → Introduction mn. 4. 37 Critically S Lux, Rechte des Kindes: 68. bis 70. Tagung 2015, Vereinte Nationen 2016, p. 82, at 82. 38 See S Mahmoudi, Islamic Approach to International Law, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online-Edition, www.mpepil.com, mn. 48.

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the object and purpose of the Convention.39 On the one hand, it is questionable whether this cautious indication is sufficient. On the other hand, it should be emphasised positively that States Parties with such reservations have nevertheless reported on practices such as genital mutilation, forced marriage or honorary murder. Three States have now fully relinquished and withdrawn their Sharia reservations under Article 51 para. 3 CRC (Egypt, Pakistan and Indonesia); other States have partially withdrawn their reservations with respect to particular provisions (e.g., Qatar, Syria and Oman).40 These withdrawals can also be seen in connection with Article 24 ICCPR which concerns the rights of the child. It is noteworthy that there are so few reservations to Article 24 ICCPR given the widespread reservations to the CRC.41 It shows an incoherence in the approach some States take to treaty engagements in the field of children’s rights that has since been improved. 13 The CRC Committee regularly urges governments to withdraw all forms of restrictions and reservations to the Convention.42 This may be done under Article 51 para. 3 CRC at any time by notification addressed to the UN Secretary-General, who shall then inform all States. The withdrawal of the reservations by the Federal Republic of Germany in 2010 can serve as an example. When ratifying the CRC in 1992, the German Government made several unilateral declarations, aiming at a restriction of obligations under the Convention. In addition to some reservations which were limited to specific rights (Article 18 para. 1, Article 40 para. 2 lit. b (ii) and (v) and Article 38 para. 2 CRC), two statements even referred to the Convention text in general. On the one hand, the German Government intended to exempt itself from any obligations under the Convention applicable to children of a foreign nationality. On the other hand, it declared that the Convention merely constituted State obligations and was not directly applicable in the domestic legal order.43 Following persistent criticism by the CRC Committee,44 the German Government finally withdrew its reservations with effect of 1 November 2010. 45 Since then, the CRC has full effect in Germany. Generally, the CRC Committee encourages the States Parties, in all relevant Concluding Observations and General Comments, to review, modify and/or withdraw reservations made upon ratification or accession, with a view to ensuring that children fully enjoy all of their rights under the Convention.46 In particular, General Comment No. 5 (2003) invites the States Parties to indicate whether they consider it necessary to maintain any reservations they have made, because full and unqualified respect for the human rights of children can be achieved only

39 See, e.g., CRC Committee, Concluding Observations: Iran, CRC/C/15/ Add. 123, 2000, para. 6, and CRC/C/15/Add.254, 2005, para. 6. 40 For more detail see C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2nd edn. 2020, p. 519, at 535. 41 M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 24 mn. 62. 42 For more detail see L Krappmann, in: H Bielefeldt et al. (eds.), Jahrbuch Menschenrechte 2010, p. 15, at 16; J Doek, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 3, at 11. 43 See J Siegfried/B Schriewer/P Braasch, The Withdrawal of Germany’s Unilateral Statement on the UN Convention on the Rights of the Child, German Yearbook of International Law 55 (2010), p. 973, at 974. 44 CRC Committee, Concluding Observations: Germany, CRC/C/15 Add.43, 1995, para. 13; CRC/C/15/ Add.226, 2004, para. 8. 45 See (German) Federal Law Gazette (Bundesgesetzblatt) 2011 II p. 600. On the long debate in Germany about this step, see J Siegfried/B Schriewer/P Braasch, The Withdrawal of Germany’s Unilateral Statement on the UN Convention on the Rights of the Child, German Yearbook of International Law 55 (2010), p. 973, at 978 et seq. 46 See CMW Committee/CRC Committee, Joint General Comment No. 3 of the CMW Committee and No. 22 of the CRC Committee, CMW/C/GC/3-CRC/C/GC/22, 2017, para. 56.

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if States withdraw their reservations.47 Indeed, it is appropriate for the CRC Committee to show a certain sensitivity with regard to reservations and to the ensuing question of the universal application of human rights. But the argument of cultural relativism is all too often advanced in order to ward off changes in domestic law and to serve political power.48 The goal of universality of human rights remains achievable of any State in the world. There is no longer a State today that would not recognise human rights and the status of human beings as rights-holders. This fact proves that States and their societies and cultural systems are in fact able to face human rights challenges. Not only the human rights conventions, but also the social orders of States are undoubtedly subject to a certain dynamic.49 Therefore, the CRC Committee rightly regards the ratification of other relevant human rights instruments as a second implementation imperative besides the withdrawal of reservations.50 Finally, it is interesting to note that both substantive Optional Protocols to the CRC – 14 namely OPAC and OPSC – neither allow nor prohibit reservations. Although the first draft of OPAC contained a provision which stipulated that no reservation was permissible to the Protocol,51 it was ultimately deleted, since a number of delegations opposed this proposal.52 The issue of reservations under the two Optional Protocols is therefore governed by the general rules set forth in the Vienna Convention on the Law of Treaties which provides States with the general power to enter reservations to any treaty upon ratification or accession as long as that reservation is not incompatible with the treaty’s object and purpose (Article 19 lit. c VCLT). Following OPAC’s entry into force, a very small number of reservations have been stated. The most outstanding reservation is that of Oman which made a reservation upon accession to all the provisions of the CRC that do not accord with Islamic law or the legislation in force in the Sultanate and extended this unilateral declaration to the Protocol.53 Several governments lodged objections to the Omani reservation, based on the uncertainty of a general reference to religious or other national law without specifying its content. Also, the CRC Committee expressed concern on the broad nature of Oman’s reservation and urged the State Party to withdraw the reservation to OPAC or to limit its extent.54 In the meantime, Oman has withdrawn its Sharia reservations, with the exception of the reservation regarding Article 14 CRC. The CRC Committee expressly welcomed and praised this decision.55

47 See CRC Committee, General Comment No. 5, CRC/GC/5/2003, 2003, para. 13. See also, with regard to the reservation made in respect to Article 37 lit. c CRC: CRC Committee, Concluding Observations: Australia, CRC/C/AUS/CO/5-6, 2019, para. 6. 48 E Klein, Universeller Menschenrechtsschutz – Realität oder Utopie, Europäische Grundrechte Zeitschrift 1999, p. 109, at 114; C Tomuschat, Human Rights: Between Idealism and Realism, 3 rd edn. 2014, p. 71. 49 E Klein, Der Shari’a-Vorbehalt zu internationalen Menschenrechtsverträgen, in: C Nottmeier/ M Richter/TI Schmidt (eds.), Leitung, Recht und Arbeit in der Kirche, 2019, p. 225, at 241, with further references. 50 CRC Committee, General Comment No. 5, CRC/GC/5/2003, 2003, para. 17. 51 See CRC Committee, Report on the third session, CRC/C/16, 1993, Annex VII, Article 4, and Commission on Human Rights, Report of the Working Group, E/CN.4/1995/96, 1995 para. 196. 52 See Commission on Human Rights, Report of the Working Group, E/CN.4/2000/74, 2000, paras 76-79. 53 See MA Drumbl/J Tobin, The Optional Protocol on Children and Armed Conflict, in: J Tobin (ed.), The UN Convention on the Rights of the Child, 2019, p. 1666, at 1678. 54 See CRC Committee, Concluding Observations: Oman, CRC/C/OPAC/OMN/CO/1, 2009, paras 5-6. See also the reaction of the CRC Committee with regard to the reservation of Turkey on the issue of strict reciprocity in: CRC Committee, Concluding Observations: Turkey, CRC/C/OPAC/TUR/CO/1, 2009, paras 5-6. 55 CRC Committee, Concluding Observations: Oman, CRC/C/OMN/CO/3-4, 2016, paras 7-8.

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2. Authentic Language Versions (Article 54 CRC) Pursuant to Article 54 CRC, the authentic language versions of the Convention are Arabic, Chinese, English, French, Russian and Spanish. The designation of these languages as equally authentic texts is also reflected in the Optional Protocols to the CRC under Article 13 para. 1 OPAC, Article 17 para. 1 OPSC and Article 24 para. 1 OPIC. Thus, the CRC and its Protocols are multi-lingual treaties that have been authenticated in two or more languages. Consequently, they are governed by the rules in Article 33 VCLT that, in turn, reflect international customary law. In particular, a version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree (Article 33 para. 2 VCLT). Furthermore, the terms of the multi-lingual treaty are presumed to have the same meaning in each authentic text (Article 33 para. 3 VCLT). However, when a comparison of the authentic texts discloses a difference of meaning which interpretation does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted (Article 33 para. 4 VCLT). 16 Article 33 VCLT plays an important role in cases where the official translation of the CRC deviates from the authentic language versions, which is occasionally the case with the German translation of the Convention. In particular, Article 3 CRC is not well translated. The principle of the best interests of a child figures in the German version merely as “welfare of the child” (Kindeswohl) and does not fully reflect the idea of the Convention that the child is to be regarded as a genuine rights-holder. Yet, since an agreement of the parties within the meaning of Article 33 para. 2 VCLT has not been made with regard to the CRC and its Optional Protocols, the German official translation is not entitled to any authenticity. Therefore, it is not the German translation which is decisive, but only the authentic text,56 even if the German translation might be significant for the German (domestic) legal order.57 15

56 See H Cremer, Die UN-Kinderrechtskonvention: Geltung und Anwendbarkeit in Deutschland nach der Rücknahme der Vorbehalte, 2011, p. 7. 57 See, e.g., Higher Regional Court Karlsruhe, Judgment of 2 December 2010, 2 UF 172/10, para. 21.

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F. OVERVIEW OF THE INDIVIDUAL COMMUNICATIONS PROCEDURE (ARTICLES 5 TO 11 OF THE THIRD OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD) Article 5 Individual communications 1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in any of the following instruments to which that State is a party: (a) The Convention; (b) The Optional Protocol to the Convention on the sale of children, child prostitution and child pornography; (c) The Optional Protocol to the Convention on the involvement of children in armed conflict. 2. Where a communication is submitted on behalf of an individual or group of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.

Article 6 Interim measures 1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State party concerned for its urgent consideration a request that the State party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations. 2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication.

Article 7 Admissibility The Committee shall consider a communication inadmissible when: (a) The communication is anonymous; (b) The communication is not in writing; (c) The communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of the Convention and/or the Optional Protocols thereto; (d) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;

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F. Individual Communications Procedure (e) All available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief; (f) The communication is manifestly ill-founded or not sufficiently substantiated; (g) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State party concerned, unless those facts continued after that date; (h) The communication is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit.

Article 8 Transmission of the communication 1. Unless the Committee considers a communication inadmissible without reference to the State party concerned, the Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State party concerned as soon as possible. 2. The State party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that it may have provided. The State party shall submit its response as soon as possible and within six months.

Article 9 Friendly settlement 1. The Committee shall make available its good offices to the parties concerned with a view to reaching a friendly settlement of the matter on the basis of respect for the obligations set forth in the Convention and/or the Optional Protocols thereto. 2. An agreement on a friendly settlement reached under the auspices of the Committee closes consideration of the communication under the present Protocol.

Article 10 Consideration of communications 1. The Committee shall consider communications received under the present Protocol as quickly as possible, in the light of all documentation submitted to it, provided that this documentation is transmitted to the parties concerned. 2. The Committee shall hold closed meetings when examining communications received under the present Protocol. 3. Where the Committee has requested interim measures, it shall expedite the consideration of the communication. 4. When examining communications alleging violations of economic, social or cultural rights, the Committee shall consider the reasonableness of the steps taken by the State party in accordance with article 4 of the Convention. In doing so, the Committee shall bear in mind that the State party may adopt a range of possible policy measures for the implementation of the economic, social and cultural rights in the Convention.

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F. Individual Communications Procedure 5. After examining a communication, the Committee shall, without delay, transmit its views on the communication, together with its recommendations, if any, to the parties concerned.

Article 11 Follow-up 1. The State party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee a written response, including information on any action taken and envisaged in the light of the views and recommendations of the Committee. The State party shall submit its response as soon as possible and within six months. 2. The Committee may invite the State party to submit further information about any measures the State party has taken in response to its views or recommendations or implementation of a friendly settlement agreement, if any, including as deemed appropriate by the Committee, in the State party’s subsequent reports under article 44 of the Convention, article 12 of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography or article 8 of the Optional Protocol to the Convention on the involvement of children in armed conflict, where applicable. I. Object, Purpose and Guiding Principles of the Individual Communications Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Admissibility of an Individual Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Individual Communications Procedure before the CRC Committee . . . . . . . . . IV. Decision-Making of the CRC Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Object, Purpose and Guiding Principles of the Individual Communications Procedure The Third Optional Protocol to the CRC on a Communications Procedure is organi- 1 cally related to the CRC. In addition to the inquiry procedure (Articles 13 and 14 OPIC) and the inter-State communications procedure (Article 12 OPIC), Part II of the Third Optional Protocol to the CRC on a Communications Procedure (Articles 5 to 11 OPIC) sets forth the rules for an individual communications procedure. This procedure, which was so controversial that the CRC Committee’s competence over it was made optional, is modelled essentially on the existing individual complaint procedures of other human rights conventions. After a long political preparatory work, the CRC finally closes up to the other human rights treaties established in the UN system.1 The individual communications procedure constitutes an individual mechanism for enforcing and monitoring the State obligations under the Convention and its two substantive Optional Protocols to the CRC, insofar as they have been ratified by the State concerned. Responsible for the monitoring of individual communications is the CRC Committee (see Article 1 OPIC), the composition of which is determined by Article 43 CRC.2

1 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 3; E Rossa, Ein Individualbeschwerderecht für Kinder, Archiv des Völkerrechts (52) 2014, p. 566, at 569 et seq. See also → Articles 44/45 mns. 54 et seq. 2 See → Article 43 mn. 3.

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F. Individual Communications Procedure Because of its practical importance, the individual communications procedure will be considered in more detail below. In contrast, the possibility of inter-State communications under Article 12 OPIC, according to which one State Party to the Protocol may claim that another State Party is not fulfilling its obligations under the Convention is rather irrelevant in practice. This procedure has so far not been used in the context of the CRC. In the area of other human rights treaties, which provide for an inter-State complaint procedure to be optional or obligatory,3 the inter-State mechanism was also used in extremely rare cases only, namely with regard to ICERD exclusively.4 The causes for the scarce use of this instrument lie mainly in diplomatic considerations; States generally refrain to submit themselves to the verdict of other States in human rights law. 5 Conflicts between States are regularly categorised as political disputes, which have to be solved by means of political instruments and not by international procedures – with the exception of proceedings before the International Court of Justice and arbitration. Moreover, the burden of an inter-State complaint on the States involved does not seem to be worthwhile due to the non-binding nature of the result. The fact that the inter-State complaint has been nevertheless enshrined in Article 12 OPIC, despite its presumably far-reaching ineffectiveness, is due to the general orientation of international law. States are still the dominant legal subjects in international law. Therefore, it is logical to grant them a complaint possibility, in particular when even the individual is given a grievance.6 3 Also, the inquiry procedure under Articles 13 and 14 OPIC, which has been largely modelled on the Optional Protocol to CEDAW,7 has not gained momentum so far. An inquiry can be instituted in case the CRC Committee receives reliable information indicating grave systematic violations by a State Party of rights set forth in the Convention, or in OPSC or OPAC. An inquiry can be instituted by any person, including NGOs, ombudspersons or national human rights institutions, to lodge reports and make complaints. The location or designation of the person is irrelevant for instituting the investigation.8 In these cases, the CRC Committee shall invite the State Party to cooperate in the examination of the information and, to this end, to submit observations without delay with regard to the information concerned. The inquiry procedure may to some extent compensate for the lack of a collective communications mechanism. 9 However, because of its particularly sensitive political implications, the instrument of the inquiry procedure is subject to the possibility of the States Parties to OPIC of completely excluding it from the outset (see Article 13 para. 7 OPIC). At present (as of May 2020), only 23 countries have themselves submitted to this instrument. 2

3 See, e.g., Article 14 ICCPR, Article 21 CAT, Article 11 ICERD, Article 10 of the Optional Protocol to the ICESCR, Article 74 CMW, Article 32 CED. 4 See D Keane, ICERD and Palestine’s Inter-State Complaint, EJILtalk.org of 30 April 2018; S Sakran, Observations on Palestine’s Inter-State Communication Against Israel under the CERD, ASIL Insights, Vol. 23, 2019, Issue 9 of 16 October 2019. 5 See M Engels, Verbesserter Menschenrechtsschutz durch Individualbeschwerdeverfahren?, 2000, p. 13 et seq.; PH Kooijmans, Inter-State Dispute Settlement in the Field of Human Rights, Leiden Journal of International Law 3 (1990), p. 87, at 92 et seq. 6 M Engels, Verbesserter Menschenrechtsschutz durch Individualbeschwerdeverfahren?, 2000, p. 14. 7 See C Evans, in: F Mégret/P Alston (eds.), The United Nations and Human Rights, 2 nd edn. 2020, p. 519, at 541. 8 See T Buck/M Wabwile, The Potential and Promise of Communications Procedures under the Third Protocol to the Convention on the Rights of the Child, International Human Rights Law Review 2 (2013), p. 205-239; A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 73. 9 See → Individual Communications Procedure mn. 10.

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F. Individual Communications Procedure Compared to the other human rights treaties, the Third Optional Protocol to the 4 CRC on a Communications Procedure has specific, child-oriented provisions designed to promote an overall child-friendly procedure. The Protocol’s main objective lies in considering children as genuine human rights-holders and as such to give them the opportunity to commit themselves for their rights.10 Fundamental guiding principles of the individual communications procedure are the priority given to children's best interests under Article 3 CRC and the child’s right to express views according to Article 12 CRC. 11 The concrete expression of these two core principles of the Convention can be found in various provisions of OPIC. For instance, an individual communication on behalf of a child or a group of children may not be submitted without their consent unless the author can justify acting on their behalf without such consent (Article 5 para. 2 OPIC). 12 In addition, according to Article 2, sentence 2 OPIC, the views of the child must be given due weight in accordance with the age and maturity of the child during the entire individual communications procedure. Therefore, any request from the CRC Committee for clarification and information, throughout the proceedings, shall be made in a format appropriate, accessible and comprehensible to adults and children alike, to the extent possible, in view of the age and maturity of the child, even if the child is represented by an adult.13 Also, the possibility for the CRC Committee to decline to examine an individual complaint that it considers not to be in the child’s best interests in order to prevent the manipulation of the child (see Article 3 para. 2 OPIC) indicates clearly the child-friendly nature of the individual communications procedure under OPIC.14 Furthermore, in order to protect the best interests of the child, the author's identity shall not be revealed publicly without prior and express consent of the child concerned (Article 4 para. 2 OPIC).15 Finally, Article 4 para. 1 OPIC calls on the States Parties to take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to any human rights violation, ill-treatment or intimidation as a consequence of communications or cooperation with the CRC Committee.

II. Admissibility of an Individual Communication The individual communications procedure before the CRC Committee under Article 5 5 OPIC aims to give an individual the opportunity to claim to be a victim of a violation by a State Party of any of the rights set forth in the Convention and its substantive Optional Protocols, OPSC and OPAC. The prerequisite for this is, of course, that the State Party concerned is a party to the aforementioned Optional Protocols and has also ratified OPIC. This comprehensive object of the individual complaint mechanism goes back to a recommendation of the working group of the UN Human Rights Council which, during the drafting of OPIC, pointed to the necessity of a homogenous and 10 See E Rossa, Kinderrechte: Das Übereinkommen über die Rechte des Kindes im internationalen und nationalen Kontext, 2013, p. 156. 11 See Article 2 para. 2 OPIC. 12 For more detail see Rule 13 paras 2 and 3 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 13 See Rule 14 para. 2 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 14 See T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 118; A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 289. 15 See also Rule 13 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. Overly critical assessment in this regard by J Eilebrecht/L Gölz, Die Individualbeschwerde vor dem Kinderrechtsausschuss der Vereinten Nationen, MenschenRechtsMagazin 2020, p. 116, at 123.

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F. Individual Communications Procedure interdependent protection of the rights of the child. The working group was sceptical to give the States Parties the possibility to choose a set of rights eligible for monitoring in the individual communications procedure.16 Yet, since the Convention and its Optional Protocols contain a wide range of legal guarantees covering both civil and political as well as economic, cultural and social rights, and are further closely linked to psychological and philosophical issues, it would have been better for the effectiveness of the individual communications procedure and the protection of the rights of the child to consider only some of the guarantees enshrined in the CRC and its Optional Protocols to be an admissible object of the procedure.17 Also, Article 10 para. 4 OPIC only helps to a limited extent for a better understanding of the permissible object of the procedure. According to this provision, the CRC Committee, when examining communications alleging violations of economic, social or cultural rights, shall consider the reasonableness of the steps taken by the State Party in accordance with Article 4 CRC. 18 In doing so, the CRC Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the economic, social and cultural rights in the Convention. Hence, Article 10 para. 4 OPIC does not highlight which concrete economic, social and cultural rights are considered to be particularly elementary for the child and establish an obligation of result rather than an obligation of conduct only. Moreover, Article 10 para. 4 OPIC remains silent as regards other typologies of rights, such as the rights of the child to be heard. For this reason, even in the context of the individual communications procedure, it has to be pre-determined by interpretation of each individual guarantee whether and to what extent its standards justify the existence of a true and directly applicable individual right of the child. It is apparent that some rights of the CRC are immediately enforceable, while others are subject to progressive realisation over time.19 This difference naturally has an impact upon the nature of the implementation obligation and may also determine the direct applicability of the rights contained in the Convention and their suitability for the individual communications procedure. 6 According to Article 5 para. 1 OPIC, communications may be submitted by or on behalf of an individual or groups of individuals claiming to be victims of a violation of the rights guaranteed by the CRC or its first two Optional Protocols. The nationality of the individual is irrelevant in that regard.20 However, anonymous and non-written communications are always inadmissible.21 The chosen term "individual" deliberately does not restrict the right to lodge a complaint to children within the meaning of Article 1 CRC.22 Even persons of legal age can assert a violation of children’s rights that they had suffered before having reached majority.23 What is decisive is the minority age at the See Human Rights Council, A/HRC/17/36, 25 May 2011, para. 36. See C Tomuschat, Human Rights: Between Idealism and Realism, 3rd edn. 2014, p. 244. Different view by E Rossa, Ein Individualbeschwerderecht für Kinder, Archiv des Völkerrechts (52) 2014, p. 566, at 571. 18 See W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. OPIC.24. 19 J Sloth-Nielsen, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 31, at 32. 20 A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 99. 21 See Article 7 lit. a and lit. b OPIC. Further see A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 102. Critical view as to the written form requirement by G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 376. 22 See Human Rights Council, A/HRC/17/36, 25 May 2011, para. 10. 23 Rightly so, T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 120 et seq.; M Langford/S Clark, A Complaints Procedure for the Convention on the Rights of the Child: Commentary on the Second Draft, 2011, p. 3; M Payandeh, Die Individualbeschwerde 16

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F. Individual Communications Procedure time of the events. This has been underlined by the CRC Committee in several recent individual communications procedures.24 Children are entitled to submit an individual communication regardless of their 7 age and legal capacity. The provisions of national law – in particular concerning the representation of the child – are irrelevant in this respect.25 Restricting the right to submit a communication to adults would have been in conflict not only with the object and purpose of the CRC but also with the prerequisites of individual complaints procedures before other UN human rights committees which do not provide for age limitation either.26 Groups of individuals are also entitled to lodge a claim if they can conclusively assert a violation of the rights set forth in the Convention or in the Optional Protocols as a group. However, it has not yet been completely clarified how such a group of individuals should be defined and which criteria have to be met.27 Irrespective of the possibility to function as a complainant, the authors of an indi- 8 vidual communication, whether children, adults or their legal representatives, may be represented by a counsel before the CRC Committee, which must not necessarily be a legal counsel but can also be an NGO, an ombuds-institution or a national human rights institution.28 Unlike the individual complaint under Article 34 ECHR, there is no lawyer or legal counsel requirement in the proceedings before all UN human rights committees. On the other hand, if the author of an individual communication decides to be represented by a legal counsel, he or she must pay the costs of legal representation independently of the outcomes of the proceedings.29 The UN expert committees, including the CRC Committee, rarely comment on whether a power of attorney has been filed and whether that power of representation relates to the entire individual communications procedure, both in substance and in time.30 The general right to submit an individual communication has to be sharply separated 9 from the individual entitlement to lodge a complaint.31 Both individuals and groups of individuals are only entitled to lodge a claim if they sufficiently assert a violation of the rights set forth in the Convention or its Protocols. This means that the authors must describe in the context of their written communication a fact which, at least at first sight, indicates an infringement against the rights guaranteed in the CRC or its

zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 35. More restrictively, A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 293 et seq. 24 See, e.g., CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 11.2; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 12.2. 25 See Rule 13 para. 1 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. See also H Cremer, Neue Beschwerdemöglichkeit für Kinder, Vereinte Nationen 2014, p. 22, at 24. 26 See G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 381. 27 See → Article 12 mn. 4. 28 See, e.g., CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 1 (legal counsel), and CRC Committee, J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 1 (NGO). 29 As for the ICCPR see C Pappa, Das Individualbeschwerdeverfahren zum Fakultativprotokoll des Internationalen Paktes über bürgerliche und politische Rechte, 1996, p. 86. 30 See, e.g., Human Rights Committee, Gómez v. Spain, Views adopted on 20 July 2000, CCPR/C/69/D/701/1996, No. 701/1996, para. 7.4.; Baban et al. v. Australia, Views adopted on 6 August 2003, CCPR/C/78/D/1014/2001, No. 1014/2001, paras 4.1, 6.3. 31 C Pappa, Das Individualbeschwerdeverfahren zum Fakultativprotokoll des Internationalen Paktes über bürgerliche und politische Rechte, 1996, p. 113.

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F. Individual Communications Procedure Optional Protocols.32 A communication on matters which do not fall under the scope of these instruments is excluded (Article 1 para. 2 OPIC) and leads to the inadmissibility of the complaint. In addition, only subjective individual rights can be asserted. Capable of being challenged before the CRC Committee are the classic civil and political rights as far as they are guaranteed in the Convention and its Protocols, e.g., Articles 6 to 9 and Articles 14 to 16 CRC. Children’s rights of participation and inclusion, such as Articles 12, 23, 24, 28 and 31 CRC, are also eligible as rights that may be the object of an individual communication procedure. Due to the explicit regulation in Article 4 paras 1 and 2 CRC, an individual communication can in principle also relate to economic, social and cultural rights. However, it remains questionable whether an obligation of result upon the States Parties can be derived from these rights. As mentioned, in many cases, only an obligation of conduct can be assumed which raises doubts about the effectiveness of individual communications that exclusively relate to economic, social and cultural rights.33 In any case, purely intergovernmental obligations such as the duty to international cooperation that do not result in any direct obligation of the States towards children cannot be enforced with an individual communication. Whether an international legal norm establishes an individual's right must be determined by interpretation;34 this common rule, enshrined in both Article 31 VCLT and in international customary law, also applies to the rights and guarantees set forth in the CRC and its Protocols. To the extent that the Convention or its Protocols require States Parties to take positive measures, this may eventually substantiate a subjective-legal content of the State's duty to protect, to ensure and to fulfil human rights.35 In addition, the claimant of an individual communication must claim to be a victim of a violation by the State (see Article 5 para. 1 OPIC). In contrast, the author of an individual communication means the person who is submitting the individual communication, irrespective of whether being the alleged victim or not.36 10 Popular complaints (actio popularis) are excluded, as are collective complaints. 37 Collective complaints would allow for complaints (e.g., by national or international children’s rights organisations) in the public interest in situations of violations of a structural nature where an individual complaint would be impossible or impractical. However, the possibility to submit collective complaints did not receive sufficient support during the drafting process.38 This prerequisite is in line with other human rights treaties, for 32 See Article 5 para. 1 lit. a, lit. b, and lit. c OPIC. For more detail see M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 26 et seq. 33 See M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 43 et seq.; E Rossa, Ein Individualbeschwerderecht für Kinder, Archiv des Völkerrechts (52) 2014, p. 566, at 572. See also → Individual Communications Procedure mn. 5. 34 See RA Lorz, Der Vorrang des Kindeswohls nach Art. 3 der UN-Kinderrechtskonvention in der deutschen Rechtsordnung, 2003, p. 64 et seq. 35 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 41. See also → Article 4 mn. 22. 36 Rule 12 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 37 See G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 381 et seq.; M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 25, 29. Critical view with regard to the failure of introducing a collective complaint into the Protocol: A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 308 et seq.; T Buck/M Wabwile, The Potential and Promise of Communications Procedures under the Third Protocol to the Convention on the Rights of the Child, International Human Rights Law Review 2 (2013), p. 205, at 211 et seq. 38 For more detail see T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 126 et seq.; W Vandenhole/GE Türkelli/S Lembrechts, Children’s Rights, 2019, mn. OPIC.13.

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F. Individual Communications Procedure instance with the First Optional Protocol to the ICCPR, which mostly do not permit collective complaints but limit the standing of the complainant to a person who is a direct victim of the violation of the rights.39 Only the European Social Charter and the African Charter on the Rights and Welfare of the Child permit collective complaints which are not dependent on a victim being identifiable.40 On the other hand, parents, guardians, national human rights institutions and NGOs may submit an individual communication to the CRC Committee in representation for and with the explicit or, in some instances, with the alleged consent of the child.41 This possibility of representation does, however, not establish any legal obligation. Even minors do not need any representation pursuant to Article 5 para. 1 OPIC.42 In addition, if children opt for representation, they are not limited to the legal counsels, representatives or other agents designated under national law, since their interests do not necessarily have to be in line with those of the child.43 This becomes particularly clear in situations involving a conflict between the child and his or her parents or other persons entitled to care.44 In these cases, the child necessarily has to rely on persons outside the circle of parents or caregivers who can assert his or her rights.45 It is crucial that the representation of the child takes place in the best interests and, as a rule, with the express consent of the child. This is to counter any suspicion of improper pressure or inducement on the child.46 Only in special circumstances, the express consent of the child to represent his or her interests is dispensable. 47 This may be the case if, for lack of maturity, the child is not yet able to consent and the CRC Committee has learned about it and formulated an opinion on how to protect the child's best interests on the basis of the specific case.48 Article 5 para. 1 OPIC further provides for the possibility of submitting an individual 11 communication on behalf of an individual or group of individuals. This situation might be described as the possibility of de facto representation.49 Especially in deportation cases, it is often the parents or guardians who initiate a communications procedure before the CRC Committee in representation of the affected child.50 If the victim is unable to file a complaint but will be represented by another person who is claiming the best interests of the child, this person acts as a de facto representative. 51 The de facto representative is not appointed by the victim; the victim does not even have to M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 1 First OP mn. 13. A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 74, 79. 41 See Rules 12 and 13 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 42 H Cremer, Neue Beschwerdemöglichkeit für Kinder, Vereinte Nationen 2014, p. 22, at 24. 43 See G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 380; M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 24; A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 295 et seq. 44 See E Rossa, Ein Individualbeschwerderecht für Kinder, Archiv des Völkerrechts (52) 2014, p. 566, at 572 et seq. Similar assessment also by F Sprecher, Die Stellung des Kindes in der EMRK, in: P Sutter/ U Zelger (eds.), 30 Jahre EMRK-Beitritt der Schweiz: Erfahrungen und Perspektiven, 2005, p. 289. 45 A Parkes, Children and International Human Rights Law, 2014, p. 94 et seq. 46 Rule 13 para. 2 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 47 See Rule 13 para. 3 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 48 E Rossa, Ein Individualbeschwerderecht für Kinder, Archiv des Völkerrechts (52) 2014, p. 566, at 575. 49 A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 283 et seq., 297 et seq. 50 See, e.g., CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D/3/2016, para. 3.1. 51 H Cremer, Neue Beschwerdemöglichkeit für Kinder, Vereinte Nationen 2014, p. 22, at 24. 39

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F. Individual Communications Procedure have knowledge of the representation. But the de facto representative must speak on the behalf of the victim.52 Although he or she is the author of the complaint, it is not clear in detail whether he or she will become a complainant or whether he or she is only acting on behalf of the victim.53 The CRC Committee’s practice is not uniform in that regard. It is, however, clear that additional hurdles have to be established in order to prevent abuse of the right to submit a communication on the victim’s behalf, since such a communication bears the risk to be against the best interests of the child. This is the case if a child is instrumentalised for the purposes of adults, for instance, in custody disputes between parents. In that regard, the case-law of the Human Rights Committee can provide guidance on possible limiting factors.54 For the assumption of a de facto representation, an actual and proven proximity relationship between the child and the complainant, acting on behalf of the child, is required.55 If possible, the alleged victim on whose behalf the communication is presented shall be informed of the communication and his or her views shall be given due weight in accordance with his or her age and maturity.56 12 Article 5 para. 1 OPIC remains silent about the necessary age at which a child can be considered as being able to postulate before the CRC Committee. While it is reasonable to assume that the CRC Committee will generously interpret the age criterion and regard children as capable of taking an active part in the individual communications proceedings irrespective of their age, a clear decision to that effect in the formulation of Article 5 para. 1 would have made sense. In this way, it could have been avoided that the required determination was ultimately left to the domestic law of the Contracting States.57 In order for younger children to be able to make effective use of the legal remedies provided for by OPIC, it is advisable to set up national monitoring centres to support the children in the individual communications procedure and to provide them with appropriate legal assistance, if necessary.58 In Germany, for instance, a particular monitoring body was set up with the German Institute for Human Rights (Menschenrechtsinstitut) in order to fulfil this task. Both the particular vulnerability of children and the duty of the CRC Committee to ensure that the best interests of the child are duly respected in the individual communications procedure justify to interpret the right to postulate widely and not in an overly formalistic manner.59 To compare: the Human Rights Committee also attaches particular importance to the best interests of the child in the individual complaint procedure under the Additional Protocol to the ICCPR because of the particular vulnerability of the child.60 However, the Human Rights Committee is stricter and more formalistic about the child's eligibility to initiate a procedure than the Third Optional Protocol to the CRC provides for the CRC Committee's individual A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 297. A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 110. 54 See, e.g., Human Rights Committee, P.S. v. Denmark, Views of 22 July 1992, CCPR/C/45/D/397/1990, paras 2.11, 5.2.; Santacana v. Spain, Views of 14 July 1994, CCPR/C/51/D/417/1990, para. 6.1. 55 Rightly so, H Cremer, Neue Beschwerdemöglichkeit für Kinder, Vereinte Nationen 2014, p. 22, at 24. See also B Schäfer, Die Individualbeschwerde nach dem Fakultativprotokoll zum Zivilpakt, 2 nd edn. 2007, p. 65 et seq.; A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 307 et seq. 56 See Rule 13 para. 3 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 57 C Tomuschat, Human Rights: Between Idealism and Realism, 3rd edn. 2014, p. 244. 58 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 24. 59 Rightly so, A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 282 et seq. See also ECtHR, Judgment of 20 May 1996, No. 23715/94 – S.P., D.P. and A.T. v. The United Kingdom. 60 Human Rights Committee, Laing v. Australia, Views adopted on 9 July 2004, CCPR/C/81/D/901/1999, Communication No. 901/1999, para. 7.3. 52

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F. Individual Communications Procedure communications procedure. 61 This in turn shows very clearly the particular added value of the CRC compared to all general human rights treaties.62 The admissibility of an individual communication further requires that it be formally 13 correct and is raised against a correct respondent.63 The communication must be substantiated in writing and may not be made anonymously (Article 7 lit. a and b OPIC).64 The requirement of a written form of the communication in Article 7 lit. b OPIC represents a challenge for younger children in particular. Therefore, they will often have to be represented when filing their complaint.65 In principle, the communication can be filed in any language. However, the use of one of the three working languages of the CRC Committee is preferable.66 Translations must be submitted by the author of a communication at his or her own expense.67 Insofar as the author claims a right guaranteed under the Convention or its Protocols, he or she must assert that, and to which extent, the State Party against which the complaint is raised, has infringed this right. On the one hand, this means that the individual communication must be directed against a State that is a party to the Third Optional Protocol to the CRC (see Article 1 para. 3 OPIC). Alleged infringements against children’s rights committed by a State Party to the Convention but before that State has ratified OPIC can regularly not be sued successfully, unless the alleged violation persists. Under Article 7 lit. g OPIC, a communication is inadmissible when the facts that are the subject of the communication occurred prior to the entry into force of the Third Optional Protocol to the CRC for the State Party concerned, unless those facts continued after that date. Thus, the first individual communication ever initiated under Article 5 OPIC has been declared inadmissible since all relevant events and judicial decisions had happened before the entry into force of the Third Optional Protocol to the CRC for the relevant State.68 Also, other individual communications have been declared inadmissible ratione temporis under Article 7 lit. g OPIC, since all the facts mentioned in the communications occurred prior to the date of entry into force of OPIC for the State Party.69 Only in 2020, the CRC Committee concluded for the first time that it was not precluded by Article 7 lit. g OPIC from considering the communication ratione temporis. The facts – noncompliance with the agreement on arrangements for visitation and other forms of contact between a parent and a child – occurred prior to the entry into force of the Third Optional Protocol for the State Party but endured after that date, since the father continued to encounter obstacles to communicating and maintaining a relationship with his daughter.70

61 See, e.g., Human Rights Committee, Humanitarian Law Center v Republic of Serbia, Views adopted on 26 March 2007, CCPR/C/89/D/1355/2005, Communication No. 1355/2005, paras 6.3 et seq. 62 A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 291 et seq. 63 See Article 7 OPIC and Rule 16 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 64 See also Rule 16 para. 1 lit. a and b of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 65 J Eilebrecht/L Gölz, Die Individualbeschwerde vor dem Kinderrechtsausschuss der Vereinten Nationen, MenschenRechtsMagazin 2020, p. 116, at 121. 66 See → Article 43 mn. 10. 67 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 23. 68 See CRC Committee, A.H.A. v. Spain, Decision adopted on 4 June 2015, CRC/C/60/D/1/2014, para. 4.2. 69 See, e.g., CRC Committee, S.C.S. v. France, Decision adopted on 25 January 2018, CRC/C/77/D/10/2017, paras 6.2 and 6.3. 70 See CRC Committee, N.R. v. Paraguay, Views adopted on 3 February 2020, CRC/ C/83/D/30/2017, para. 7.2.

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F. Individual Communications Procedure The responsibility of the State Party has to be determined exactly in an individual communication. Violations of children’s rights under Convention law may emanate from State organs or from other persons entrusted with the performance of sovereign tasks under national law. Federal peculiarities in domestic law are irrelevant in this respect. Actions and omissions of all State authorities and at all levels of the State are in principle attributable to the State.71 In contrast, the State is only responsible for actions and omissions of private persons and non-State actors if it directs or controls their actions, if it accepts their actions on the basis of due diligence or does not comply otherwise with its duty to protect children’s rights.72 Such State’s positive obligations may emanate, for instance, from Article 19 and Articles 32 to 36 CRC. Since the Contracting States have to respect the rights under the Convention in the exercise of their sovereignty and jurisdiction pursuant to Article 2 para. 1 CRC, they are also bound by the Convention when they act extraterritorially.73 15 Furthermore, the author of a communication must have exhausted all available domestic remedies before being able to apply successfully to the CRC Committee (see Article 7 lit. e OPIC).74 According to the Human Rights Committee, domestic remedies refer primarily to judicial remedies, but also include administrative remedies.75 The CRC Committee concurs with this view.76 The term administrative remedies also encompasses decisions enacted by bodies such as international human rights institutions provided that these institutions are independent and their findings are enforceable,77 which, however, is rarely the case in practice. In contrast, there is a finding of the African Commission on Human and Peoples’ Rights (AComHPR) which unequivocally states that a complaint of this nature must be followed by approaching a domestic court.78 On the other hand, not only administrative and judicial, but also constitutional remedies before national constitutional courts fall under the prerequisite of the exhaustion of domestic legal remedies.79 In practice, the CRC Committee has already noted that in cases where the author’s claims had never been raised before national authorities, the requirements under Article 7 lit. e OPIC to exhaust domestic remedies have not been met. The CRC Committee therefore considered the claims inadmissible.80 16 The rule of the exhaustion of all available domestic remedies does not apply if, for objective reasons, an application of domestic remedies is unreasonably prolonged or unlikely to bring effective relief (see Article 7 lit. e, sentence 2 OPIC). 81 It is with good rea14

71 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 28. For more detail see → Article 4 mn. 6. 72 See Articles 8 and 11 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, A/56/10, as adopted by the UN General Assembly on 12 December 2001, A/RES/56/83. 73 See → Article 2 mn. 2. 74 See also Rule 16 para. 3 lit. g of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 75 Human Rights Committee, Sankara v. Burkina Faso, Views adopted on 28 March 2006, Communication No. 1159/2003, CCPR/C/86/D/1159/2003, para. 6.4. 76 See, e.g., CRC Committee, N.R. v. Paraguay, Views adopted on 3 February 2020, CRC/C/83/D/30/2017, para. 7.3. 77 A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 70. 78 AComHPR, Cudjoe v. Ghana, Admissibility Decision of 5 May 1999, No. 211/98, para. 14. 79 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 30. 80 See, e.g., CRC Committee, Z.Y. and J.Y. v. Denmark, Decision adopted on 31 May 2018, CRC/C/78/D/7/2016, para. 8.3. 81 Examples of unlikely effective domestic remedies can be found in: CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 7.2; N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 11.3; J.A.B. v. Spain, Views adopted

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F. Individual Communications Procedure son that the African Commission on Human and Peoples’ Rights stated in the case of Jawara v. the Gambia that a remedy must be available, effective and sufficient. 82 This was not the case, for instance, in a communications procedure before the African Committee of Experts on the Rights and Welfare of the Child regarding a practice which denied the right to nationality to persons of Nubian descent resident in Kenya. The matter was ruled admissible before the Committee because local remedies had proved ineffective and thus were de facto exhausted.83 Similar considerations can be found in the case-law of the CRC Committee. In the cases N.B.F. v. Spain (2018), A.L. v. Spain (2019) and R.K. v. Spain (2019) regarding age-assessment during a deportation procedure, the CRC Committee considers that, in the context of the author’s imminent expulsion from Spanish territory, any remedies that are excessively prolonged or do not suspend the execution of the existing deportation order cannot be considered effective.84 Accordingly, Article 7 lit. e OPIC did not constitute an obstacle to the admissibility of the communication. In contrast, in the matter of J.A.B.S v. Costa Rica (2017), the CRC Committee observed that the author, a father acting on behalf of his twin sons who were born by means of in vitro fertilisation, had not properly demonstrated the extent of his inability to challenge the decision of the civil registry before the issue had actually impaired his children’s rights, as he was able to appeal that decision.85 Generally, the question of the exhaustion of the legal remedies does not depend on the date of the submission of the communication but on the date of the decision of the CRC Committee.86 Overall, the requirement of the exhaustion of domestic legal remedies serves not only 17 to protect the sovereignty of the State Party concerned, but also as an incentive for the States Parties to establish and maintain effective domestic remedies for the child's best interests.87 Thus, in human rights law, the issue of the principle of the exhaustion of domestic remedies is less on the protection of State sovereignty but more about the subsidiarity of international human rights protection. A matter should only be elevated to an international complaint mechanism if all reasonable steps have been taken to resolve the complaint at the domestic level.88 The advantage of this subsidiarity principle is that a solution may be sought by those authorities closest to the problem which know the facts and the legal system of the country the best.89 These reasons also apply to children’s rights, as stated in Article 7 lit. e OPIC. The fact that children encounter additional hurdles in domestic processes in that they generally do not have legal standing and need the

on 31 May 2019, CRC/C/81/D/22/2017, para. 12.3.; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 11.3. 82 AComHPR, Jawara v. the Gambia, Decision of 11 May 2000, Nos. 147/95, 149/96, para. 31. 83 ACERWC, Institute for Human Rights and Development in Africa and Open Society Justice Initiative on Behalf of Children of Nubian Descent in Kenya v. Kenya, Decision of 22 March 2011, Com/002/2009, paras 28 et seq. 84 See CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 11.3; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 11.3; R.K. v. Spain, Views adopted on 18 September 2019, CRC/C/81/D/27/2017, para. 8.3. 85 CRC Committee, J.A.B.S. v. Costa Rica, Decision adopted on 17 January 2017, CRC/C/74/D/5/2016, para. 4.4. 86 Similarly, see Human Rights Committee, Koi v. Portugal, Views adopted on 22 October 2001, Communication No. 925/2000, CCPR/C/73/D/925/2000, para. 6.4. 87 E Rossa, Ein Individualbeschwerderecht für Kinder, Archiv des Völkerrechts (52) 2014, p. 566, at 578. 88 A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 71. 89 See A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 77.

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F. Individual Communications Procedure assistance of a guardian, a curator or a guardian ad litem, may however give rise to exceptions in relation to the strictness of rules of exhaustion of internal remedies. 90 18 A further prerequisite for the admissibility of the individual communication before the CRC Committee is the prohibition of cumulation. A communication is inadmissible if it has already been or is currently under examination by the CRC Committee or any other international investigation or dispute settlement procedure (see Article 7 lit. d OPIC).91 However, a multiple parallel or successive referral before various international human rights bodies is only excluded if the other procedure is, if not almost identical, at least comparable to the individual communications procedure. Therefore, the State reporting procedure according to Article 44 CRC or the complaint procedure before the UN Human Rights Council do not form part of the prohibition of cumulation.92 Whether, and to what extent, the procedural principles of lis pendens or res judicata are applicable to comparable (pending or already decided) individual complaints procedures at regional or universal level has to be determined by the identity of the subject of the dispute and the identity of the parties to the proceedings.93 However, it does not matter whether the other human rights treaties guarantee the right concerned in an identical manner. For instance, the possible objection that the rights of the CRC are designed in a more child-friendly way than the corresponding guarantees of the ICCPR is not sufficient to avoid the prohibition of cumulation.94 19 Finally, the submission of an individual communication must, according to Article 7 lit. h OPIC, take place within one year after the exhaustion of domestic remedies. Exceptions to this deadline of lodging the complaint are only admissible if the author can demonstrate that it had not been possible to submit the communication within that time limit. For instance, this is the case where an individual was not aware of the possibility of instigating an individual communications procedure or where he or she, because of young age or lack of maturity, was overstrained to comply with the deadline.95 Insofar as the person's ignorance is due to the inadequate publication and dissemination of the Third Optional Protocol by appropriate and active means and in accessible formats to adults and children alike, this does not only contradict the rules in Article 17 OPIC. The respondent State Party is also prevented from relying on the lapse of the deadline under Article 7 lit. h OPIC.96

90 Rightly so, A Skelton, in: U Kilkelly/T Liefaard (eds.), International Human Rights of Children, 2019, p. 65, at 72 and 76. 91 For more detail see Rule 16 para. 3 lit. f of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 92 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 32 et seq. 93 Similarly, with regard to the First Optional Protocol to the ICCPR, M Nowak/WA Schabas, CCPR, Commentary, 3rd edn. 2019, Article 5 First OP mns. 8 et seq. 94 See M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 33 et seq. Different view by T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 122 et seq. 95 T Löhr, Die Individualbeschwerde zur Kinderrechtskonvention, MenschenRechtsMagazin 2011, p. 115, at 123 et seq.; R Smith, The Third Optional Protocol to the UN Convention on the Rights of the Child – Challenges Arising Transforming the Rhetoric into Reality, International Journal of Children’s Rights 21 (2013), p. 305, at 312 et seq. 96 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 35.

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III. Individual Communications Procedure before the CRC Committee The course of the individual communications proceedings is based on a uniform 20 pattern. The procedure results from the regulations laid down in Articles 5 to 11 OPIC as well as from the Rules of Procedure under the Optional Protocol to the CRC on a communication procedure adopted by the CRC Committee in 2013,97 which complement the general rules of procedure of the CRC Committee98 and modify them with a view to the specificities for the individual communications procedure and the functions of the CRC Committee conferred on it by the Third Optional Protocol (see Article 3 OPIC). The procedure begins with the lodging of a complaint by the complainant, which is 21 referred to in Article 5 OPIC as a communication of the author. The communication should be addressed to the Secretariat of the CRC Committee, which is institutionally assigned to the Office of the UN High Commissioner of Human Rights (OHCHR) as a subdivision of the UN General Secretariat.99 The Secretariat of the CRC Committee is responsible for receiving the communication and for any further initial communication with the author.100 Before the Secretariat forwards a complaint to the CRC Committee, it checks whether the formal minimum requirements for a communication have been met.101 In the case of ambiguity or unclarity, it may address questions to the author and/or the alleged victim of a communication.102 If the communication has been brought to the attention of the CRC Committee, it 22 shall first examine, ex officio, and as quickly as possible, by a simple majority, whether the communication is admissible under the Protocol.103 In their structure and in the conditions of an individual complaint to be admissible, all UN human rights conventions are similar.104 The CRC Committee may dismiss a communication as (manifestly) inadmissible without informing the State concerned (see Article 8 para. 1 OPIC). 105 This is regularly the case if the communication is not adequately or sufficiently substantiated or is otherwise manifestly unfounded (see Article 7 lit. f OPIC), for example, because it is directed against a State which has not ratified the Third Optional Protocol. If the violation of several rights under the Convention is asserted, the CRC Committee habitually decides on a case-by-case basis whether the conditions of admissibility under Article 7 lit. f OPIC are met. For instance, in the case I.A.M. v. Denmark (2018) where the author of a communication asserted a violation of Articles 2, 3 and 19 CRC, the CRC Committee observed that the author made the claim based on Article 2 CRC in a very general manner. Therefore, the CRC Committee declared this claim manifestly ill-founded and inadmissible under Article 7 lit. f OPIC. In contrast, the Committee considered that, in 97 CRC Committee, Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 6 April 2013. 98 CRC Committee, Rules of Procedure, CRC/C/4/Rev.5, 1 March 2019. 99 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 17. 100 A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 99. 101 See Rule 16 paras 2 and 3 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 102 See Rule 15 and Rule 16 para. 2 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 103 See Rule 20 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 104 See A-K Wolf, Aktivlegitimation im UN-Individualbeschwerdeverfahren, 2018, p. 101. 105 See also Rule 18 para. 1 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013.

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F. Individual Communications Procedure the light of the author’s allegations regarding the circumstances under which she would be returned to her country of origin, the author’s claims based on Articles 3 and 19 CRC had been sufficiently substantiated for purposes of admissibility.106 A similar decisionmaking can, for instance, be found in the case of Y.B. and N.S. v. Belgium (2018) where the CRC Committee noted that, while the authors referred to Article 20 CRC, they failed to substantiate their claims, and thus declared only the sufficiently substantiated claims concerning Articles 2, 3, 10 and 12 CRC as admissible.107 In other cases, the CRC Committee ruled that the complaint was inadmissible in terms of Article 7 lit. f, read in conjunction with Article 7 para. 3 OPIC, because the author, a paternal aunt of the child in a custody proceeding, had not only failed to substantiate the claim but failed on the grounds that as an adult she is not protected by the provisions of the Convention.108 In a case concerning the deportation of a family with children from Denmark to Afghanistan where they claimed a risk of persecution based on their alleged conversion from Islam, the CRC Committee considered that the authors had failed to justify a personal risk of a serious violation of the children’s rights upon return to Afghanistan. The CRC Committee therefore stressed that the communication was insufficiently substantiated and declared it inadmissible under Article 7 lit. f OPIC.109 Also, other communications have been declared to be manifestly ill-founded and thus inadmissible by the CRC Committee.110 23 Furthermore, the CRC Committee shall consider a communication inadmissible under Article 7 lit c. OPIC if it constitutes an abuse of the right of submission of such communications, for instance, because of doubts as to the seriousness of the request for legal protection. Mere inconsistencies or ambiguities in the letter of notification have to be clarified by asking the author.111 However, a complaint is incompatible with the provisions of the Convention, which protects the rights of children, when documents reliably prove that the author of the communication was an adult at the time of the alleged human rights violation.112 Nevertheless, more prominent in practice are cases where the respondent State Party raises the argument that the communication is inadmissible ratione personae under Article 7 lit. c and lit. f. OPIC on the ground that it constitutes an abuse of the right of submission because the author is an adult and has not provided any reliable evidence to the contrary. This is often the case of unaccompanied foreign persons seeking asylum in a State Party. The CRC Committee, acting in accordance with the case-law of the Human Rights Committee,113 recalls in these cases that the burden of proof regarding the age does not rest solely on the author of the communication, especially considering that the author and the State Party do not always have equal access to 106 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D/3/2016, paras 10.3 and 10.4. 107 CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 7.3 and 7.4. 108 CRC Committee, A.A.A. v. Spain, Decision adopted on 30 September 2016, CRC/C/73/D/2/2015, paras 4.2 et seq. 109 CRC Committee, Z.Y. and J.Y. v. Denmark, Decision adopted on 31 May 2018, CRC/C/78/D/7/2016, para. 8.13. 110 See, e.g., CRC Committee, J.A.B.S. v. Costa Rica, Decision adopted on 17 January 2017, CRC/C/74/D/5/2016, para. 4.5. 111 See Rule 15 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 112 CRC Committee, Y.M. v. Spain, Decision adopted on 31 May 2018, CRC/C/78/D/8/2016, paras 8.2 and 8.3. 113 See Human Rights Committee, El Hassy v. The Libyan Arab Jamahiriya, Views adopted on 24 October 2007, Communication No. 1422/2005, CCPR/C/91/D/1422/2005, para. 6.7; Medjnoune v. Algeria, Views adopted on 14 July 2006, Communication No. 1297/2004, CCPR/C/87/D/1297/2004, para. 8.3.

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F. Individual Communications Procedure the evidence and that frequently the State Party alone has access to the relevant information.114 In the case A.L. v. Spain (2019), the CRC Committee noted that the author claimed to have declared that he was a minor upon entry into Spain, that he had provided a detailed and consistent account of the events, and that he submitted a copy of his birth certificate attesting his status as a minor to the Spanish authorities, but did not get a response, because the authorities had doubts as to the validity of his birth certificate. 115 Since the Spanish authorities did not contact the consular authorities of the author’s country of origin to verify the identity of the author, the CRC Committee considered that Article 7 lit. c OPIC did not constitute an obstacle to the admissibility of the communication.116 Likewise, in the case J.A.B. v. Spain (2019), the CRC Committee observed that, in the absence of other information or evidence in the file that detracted from the validity of the official passport issued by the author's county of origin, it could be presumed to be valid and the authorities of the State Party had to recognise it.117 Irrespective of the admissibility of a communication, a suspension or termination of 24 the individual communications procedure is considered in case the communication is to be discontinued under Rule 26 of the Rules of Procedure under the Optional Protocol to the CRC. This may be the case in deportation issues where the whereabouts of the respective authors of a communication had become unknown.118 Another possibility to discontinue the consideration of a communication is present in cases where the author or the author’s representative requests so.119 The CRC Committee also discontinued a communication of a child with disabilities against his deportation to his country of origin after the State Party had re-examined the author’s specific case and granted him a residency permit.120 However, in a case of a girl to be deported from Denmark to her country of origin where she allegedly was exposed to a real risk of irreparable harm caused by female genital mutilation, the fact that the girl and her mother were no longer at the asylum centre was not deemed to be a sufficient reason to preclude jurisdiction of the CRC Committee. This was all the more so, because the departure from Denmark was merely speculative as it had not been confirmed. Also, the deportation order issued against the girl and her mother remained in effect, which means that they both would still face deportation should they be located. The CRC Committee therefore stressed that it was not precluded from examining the communication on the basis of Rule 13 para. 1 of the Rules of Procedure under the Optional Protocol to the CRC.121 If there are no serious concerns as to the admissibility of the communication and 25 if there is no need for a discontinuance of the procedure, the CRC Committee shall, as soon as possible after the receipt of a communication, transmit it confidentially to 114 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 11.2. See also CRC Committee, R.K. v. Spain, Views adopted on 18 September 2019, CRC/C/81/D/27/2017, para. 8.2. 115 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, paras 5.2 and 11.2. 116 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 11.2. 117 CRC Committee, J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 12.2. 118 Similarly, e.g., Human Rights Committee, M.R.R. v. Denmark, CCPR/C/188/D/2440/2014; B.N.A. v. Denmark, CCPR/C/118/D/2468/2014. In both cases, the Human Rights Committee discontinued the consideration of the cases. 119 See, e.g., CRC Committee, M.E.B. v. Spain, Decision adopted on 20 June 2017, CRC/C/75/D/9/2017; M.B. v. Spain, Decision adopted on 12 June 2018, CRC/C/78/D/39/2017; K.A.B. v. Germany, Decision adopted on 11 July 2018, CRC/C/8/D/35/2017; R.L. v. Spain, Decision adopted on 8 March 2018, CRC/C/77/D18/2017. 120 CRC Committee, J.G. v. Switzerland, Views adopted on 28 June 2019, CRC/C/81/D/47/2018, para. 3. 121 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D/3/2016, para. 10.5.

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F. Individual Communications Procedure the State Party concerned and request that the State Party provides written observations and comments (Article 8 para. 2 OPIC). As soon as possible and within six months after receipt of the CRC Committee’s request,122 the State Party shall submit to the CRC Committee written explanations or statements that relate to the admissibility and the merits of the communication, as well as to any remedy that may have been provided in the matter.123 Additional written explanations or observations relevant to the issues of the admissibility or the merits of a communication by both the author and the State Party are also possible upon request of the CRC Committee.124 Also, third-party submissions are permitted and have, in practice, regularly been made with regard to age-assessment procedures.125 Any of these statements, explanations and observations must be forwarded to the opposing party which shall be afforded an opportunity to comment on this documentation within fixed time limits in order to take account of the principle of equality of arms.126 The CRC Committee may decide to invite the author and/or alleged victims as well as representatives of the State Party concerned in order to provide, in person or by way of video or teleconference, further clarifications or to answer questions on the merits of the communication, provided that the CRC Committee deems it to be in the best interests of the child. Any hearing shall be conducted in a closed meeting.127 The CRC Committee may decide to consider the admissibility of a communication separately from the merits.128 A joint decision on the admissibility and merits of the individual communication is also possible and to be found frequently in practice.129 26 As regards the merits, the CRC Committee regularly recalls the margin of appreciation of the States Parties. It is for the national authorities to examine the facts and evidence and to interpret and enforce domestic law, unless their assessment has been clearly arbitrary or amounts to a denial of justice.130 It is therefore not for the CRC Committee to assess the facts of the case and the evidence in place of the national authorities but to ensure that their assessment was not tantamount to a denial of justice and that the best interests of the child were a primary consideration in that assessment. For instance, in a case of a denial of a humanitarian visa to a child taken under Islamic kafalah (fostering arrangement) by a Belgian-Moroccan couple, the CRC Committee 122 Previous drafts envisaged a period of only three months, see G de Beco, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: Good News?, Human Rights Law Review 13 (2013), p. 367, at 377. 123 See Rule 18 para. 3 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 124 See Rule 18 para. 9 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 125 See the third-party submission of the Defender of Rights of France in: CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, paras 8.1 et seq., and in: CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, paras 8.1 et seq., J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, paras 8.1. et seq., all with further references. 126 See Article 10 para. 1 OPIC and Rule 18 para. 10 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 127 See Rule 19 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 128 See Rule 18 paras 6 and 7 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 129 See, e.g., CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D/3/ 2016; Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017. 130 See CRC Committee, A.A.A. v. Spain, Decision adopted on 30 September 2016, CRC/C/73/D/2/ 2015, para. 4.2; Z.Y. and J.Y. v. Denmark, Decision adopted on 31 May 2018, CRC/C/78/D/7/2016, para. 8.8; Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 8.4.

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F. Individual Communications Procedure observed that the Belgian immigration authorities refused to grant a visa mainly because of kafalah arrangements and no adoption. These reasons were too general and did reflect a failure to consider the girl child’s specific situation, both financially and with regard to her emotional ties to her de facto family that have naturally been forged by their life together over the years.131 Under Article 6 para. 1 OPIC, the CRC Committee has the competence, at any time 27 after receipt of a communication and before a determination on the merits has been reached, of urgently recommending to the State Party the adoption of interim measures in exceptional circumstances in order to avoid possible irreparable damage to the victim of the alleged violations. Conceivable here are primarily cases in which minors are about to be deported.132 For instance, in a case of deportation of a girl to Somalia, where she would allegedly risk being forcefully subjected to female genital mutilation, the working group on communications, acting on behalf of the CRC Committee, requested the State Party, Denmark, to refrain from returning the girl and her mother to their country of origin while their case was under consideration by the CRC Committee.133 The CRC Committee has also imposed interim measures on age-assessment proceedings. 134 As long as the person's age has not been established adequately and in a child-friendly manner, the State Party was requested to place the alleged child in a child protection centre, while his or her case was pending consideration. The CRC Committee considers that a greater risk would be to send someone who may be a child to a centre reserved for individuals recognised as adults. Consequently, the failure of the State Party to implement the requested interim measure in itself constitutes a violation of Article 6 OPIC. 135 In the case A.L. v. Spain (2019), the CRC Committee came to a similar conclusion and recalled that, by ratifying the Third Optional Protocol, States Parties take on an international obligation to comply with the interim measures requested under Article 6 OPIC, which, by preventing irreparable harm while a communication is pending, ensure the effectiveness of the individual communications procedure.136 However, in any case, where the CRC Committee exercises its discretion to request that the State Party take interim measures, this does not imply a determination on admissibility or on the merits of the communication (see Article 6 para. 2 OPIC).

IV. Decision-Making of the CRC Committee As demonstrated, the CRC Committee's decision-making is based on the parties' 28 written and, if appropriate, oral submissions. In addition, the CRC Committee may consult or receive, as appropriate, relevant documentation emanating from all other UN organs, bodies, specialised agencies, funds, programmes and mechanisms, including the other treaty bodies instituted by international instruments and the special procedures of the United Nations, and other international organisations, including from regional 131 CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 8.5. 132 H Cremer, Neue Beschwerdemöglichkeit für Kinder, Vereinte Nationen 2014, p. 22, at 25. 133 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D/3/2016, para. 1.2. 134 See, e.g., CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 1.2; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 1.2; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 1.2. 135 See CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.11; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.11; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.13. 136 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.12.

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F. Individual Communications Procedure human rights systems, as well as non-governmental organisations, national human rights institutions and other relevant specialised institutions mandated to promote and protect the rights of the child, and all relevant State institutions, agencies or offices that may assist in the examination of the communication.137 Pursuant to Article 10 para. 2 OPIC, the CRC Committee shall hold closed meetings when examining individual communications. As far as no agreement on a friendly settlement with the responding State Party according to Article 9 OPIC is reached, the CRC Committee examines the case conclusively.138 29 The procedure ends with a decision that is not legally binding, in which the CRC Committee presents its opinion on the admissibility and merits of the communication and, if necessary, makes recommendations for reparations.139 The non-binding nature of the decisions in the individual communications procedure is clearly expressed in the wording of Article 10 para. 5 OPIC, which speaks of "views" and "recommendations". However, as in the State reporting procedure under Articles 44 and 45 CRC,140 it is also true here that the States Parties are obliged in good faith to give due consideration to the views of the CRC Committee (Article 11 para. 1 OPIC). The interim measures urgently requested by the CRC Committee under Article 6 para. 1 OPIC can even be regarded as quasi-binding based on the principle of good faith.141 The final decision or views, which may be appended by concurring and dissenting individual opinions of the CRC Committee members,142 must be notified to both parties.143 One prominent example in this regard is the case N.B.F. v. Spain (2018) which has generated several concurring and dissenting individual opinions to the CRC Committee’s views.144 30 To the extent that the CRC Committee has identified a violation of the CRC or its substantive Protocols and has made recommendations to the State Party, the State Party is called upon to adopt the necessary measures ensuring the best interests of the child to be respected which may include the provision of adequate reparation to the author for the damage suffered,145 and to take all steps necessary to prevent similar violations from occurring in the future.146 The State Party is also requested to undergo

137 See Rule 23 para. 1 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 138 H Cremer, Neue Beschwerdemöglichkeit für Kinder, Vereinte Nationen 2014, p. 22, at 25. 139 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 18, 53. 140 See → Articles 44/45 mn. 13. 141 This is at least the view of the CRC Committee, see CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.11; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.12. Similarly, H-G Dederer, in: A Uhle (ed.), Kinder im Recht. Kinderrechte im Spiegel der Kindesentwicklung, 2019, p. 287, at 319 et seq. 142 Rule 24 of the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communication procedure, CRC/C/62/3, 16 April 2013. 143 See Article 10 para. 5 OPIC. 144 See the Joint concurring opinion of CRC Committee members B Dawit Mezrmur, OA Khazova, AM Skelton and V Todorova to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex I, and the individual dissenting opinions of CRC Committee members M Otani, ibid, Annex II, and H Kotrane, ibid., Annex III. See also → Article 1 mns. 12 et seq. 145 See CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 13; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 14; R.K. v. Spain, Views adopted on 18 September 2019, CRC/C/81/D/27/2017, para. 10. 146 Clearly so, CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 13; Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 9; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 14.

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F. Individual Communications Procedure a follow-up procedure.147 Under this follow-up procedure set forth in Article 11 OPIC, the State Party is obliged to report on measures taken to implement the views of the CRC Committee. This logically requires that the CRC Committee has exercised the functions conferred to it by the Optional Protocol appropriately. This means that the CRC Committee’s decision may not recommend general measures to prevent similar violations in the future without making any recommendations on the remedies for the author.148 The State Party is also requested to include information about any such measures in its periodic reports to the CRC Committee under Article 44 CRC and to publish the views of the CRC Committee and to have them widely disseminated in the official language of the State Party.149 Up to now, only a few individual communications before the CRC Committee have 31 had success in substance: In I.A.M. v. Denmark (2018), the CRC Committee concluded that the State Party failed to consider the best interests of the child when assessing the alleged risk of the author’s daughter being subjected to female genital mutilation if deported to Puntland (Somalia) and to take proper safeguards to ensure the child’s well-being upon return, in violation of Articles 3 and 19 CRC.150 In Y.B. and N.S. v. Belgium (2018), the CRC Committee found the denial of a humanitarian visa to a child taken under kafalah (Islamic fostering arrangement) by a Belgian-Moroccan couple as a violation of Articles 3, 10 and 12 CRC, because the best interests of the child and her views on the de facto family ties have not been taken into account.151 In N.B.F. v. Spain (2018) and in R.K. v. Spain (2019), the CRC Committee considered that the age-determination procedure undergone by the author, who claimed to be a child, was not accompanied by the child-friendly safeguards needed to protect his rights under Article 3 and 12 CRC.152 Similar conclusions are drawn in the cases A.L. v. Spain and J.A.B. v. Spain (2019), where the CRC Committee in addition to the infringement of Articles 3 and 12 CRC also found a violation of Article 8 CRC.153 In particular, in the case A.L. v. Spain (2019), the CRC Committee found a violation of Article 8 CRC, since the State authorities did not analyse the validity of the documents provided by the author and did not check the data of said document with the authorities of the author’s country of origin.154 Given the length of time that had passed since the judicial decision establishing visitation rights was taken in 2015, and bearing in mind the young age of the author’s daughter at that time, the CRC Committee, in the case N.R. v. Paraguay (2020), was of the view that the State authorities did not carry out the domestic court’s orders in a timely and effective manner so as to ensure contact between the author 147 M Payandeh, Die Individualbeschwerde zum Kinderrechtsausschuss der Vereinten Nationen, 2014, p. 19, 55 et seq. 148 Rightly so, the individual dissenting opinion of Committee member M Otani to CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, Annex II, para. 5. 149 See, e.g., CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/ 2016, para. 14; Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, para. 11; N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 15; A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 15; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 16. 150 CRC Committee, I.A.M. v. Denmark, Views adopted on 25 January 2018, CRC/C/77/D3/2016, para. 11.9. 151 CRC Committee, Y.B. and N.S. v. Belgium, Views adopted on 27 September 2018, CRC/C/79/D/12/2017, paras 8.13 et seq. 152 CRC Committee, N.B.F. v. Spain, Views adopted on 27 September 2018, CRC/C/79/D/11/2017, para. 12.9; R.K. v. Spain, Views adopted on 18 September 2019, CRC/C/81/D/27/2017, para. 9.9. 153 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.13; J.A.B. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/22/2017, para. 13.12. 154 CRC Committee, A.L. v. Spain, Views adopted on 31 May 2019, CRC/C/81/D/16/2017, para. 12.1 et seq.

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F. Individual Communications Procedure and his daughter. The CRC Committee concluded that this amounted to a violation of Article 3 and Article 9 para. 3 CRC.155 32 The above-mentioned successful communications under the Third Optional Protocol, which is in force since 2014, may sound like little. But they can in fact be regarded as an enormous result when compared to the African Charter on the Rights and Welfare of the Child which came into force in 1999 and, from the beginning, provided for an individual communications procedure in Article 44 ACRWC. It was only in 2005 that its Committee, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), received its first communication in the case Michelo Hunsungule et al. v. Uganda directed against the recruitment of children in the Ugandan People’s Defence Force.156 The second communication dates from 2009 and is known as the “Nubian children case”.157 The complaint was directed against the practice which denied the right to Kenyan nationality to persons of Nubian descent resident in Kenya. The third decision handed down by the ACERWC is related to children in Senegal who were sent away allegedly to attend private religious schools but in fact were exploited and abused physically and morally there.158 The Committee held that the Government of Senegal did not take sufficient measures to protect these children against the behaviour of private schools and called for the child-specific training of the duty-bearers. The fourth communication made, against the Government of Malawi, was resolved through an amicable settlement.159

155 CRC Committee, N.R. v. Paraguay, Views adopted on 3 February 2020, CRC/ C/83/D/30/2017, para. 8.8. 156 ACERWC, Michelo Hunsungule and Others v. Uganda, Decision adopted on 19 April 2013, Com/001/2005. 157 ACERWC, Institute for Human Rights and Development in Afria and Open Society Justice Initiative on Behalf of Children of Nubian Descent in Kenya v. Kenya, Decision adopted on 22 March 2011, Com/002/2009. 158 ACERWC, The Centre for Human Rights (University of Pretoria) and La Rencontre Africaine Pour la Défence des Droits de l’Homme (Senegal) v. Senegal, Decision adopted on 15 April 2014, 003/Com/001/2012. 159 ACERWC, Institute for Human Rights Development in Africa v. Malawi, 004/Com/001/2014, 27 October 2016.

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ANNEX A. OPAC OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT The States Parties to the present Protocol, Encouraged by the overwhelming support for the Convention on the Rights of the Child, demonstrating the widespread commitment that exists to strive for the promotion and protection of the rights of the child, Reaffirming that the rights of children require special protection, and calling for continuous improvement of the situation of children without distinction, as well as for their development and education in conditions of peace and security, Disturbed by the harmful and widespread impact of armed conflict on children and the long-term consequences this has for durable peace, security and development, Condemning the targeting of children in situations of armed conflict and direct attacks on objects protected under international law, including places generally having a significant presence of children, such as schools and hospitals, Noting the adoption of the Statute of the International Criminal Court and, in particular, its inclusion as a war crime of conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities in both international and noninternational armed conflicts, Considering, therefore, that to strengthen further the implementation of rights recognized in the Convention on the Rights of the Child there is a need to increase the protection of children from involvement in armed conflict, Noting that article 1 of the Convention on the Rights of the Child specifies that, for the purposes of that Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier, Convinced that an optional protocol to the Convention raising the age of possible recruitment of persons into armed forces and their participation in hostilities will contribute effectively to the implementation of the principle that the best interests of the child are to be a primary consideration in all actions concerning children, Noting that the twenty-sixth international Conference of the Red Cross and Red Crescent in December 1995 recommended, inter alia, that parties to conflict take every feasible step to ensure that children under the age of 18 years do not take part in hostilities, Welcoming the unanimous adoption, in June 1999, of International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which prohibits, inter alia, forced or compulsory recruitment of children for use in armed conflict, Condemning with the gravest concern the recruitment, training and use within and across national borders of children in hostilities by armed groups distinct from the armed forces of a State, and recognizing the responsibility of those who recruit, train and use children in this regard,

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A. OPAC Recalling the obligation of each party to an armed conflict to abide by the provisions of international humanitarian law, Stressing that this Protocol is without prejudice to the purposes and principles contained in the Charter of the United Nations, including Article 51, and relevant norms of humanitarian law, Bearing in mind that conditions of peace and security based on full respect of the purposes and principles contained in the Charter and observance of applicable human rights instruments are indispensable for the full protection of children, in particular during armed conflicts and foreign occupation, Recognizing the special needs of those children who are particularly vulnerable to recruitment or use in hostilities contrary to this Protocol owing to their economic or social status or gender, Mindful of the necessity of taking into consideration the economic, social and political root causes of the involvement of children in armed conflicts, Convinced of the need to strengthen international cooperation in the implementation of this Protocol, as well as the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict, Encouraging the participation of the community and, in particular, children and child victims in the dissemination of informational and educational programmes concerning the implementation of the Protocol, Have agreed as follows: Article 1 States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities. Article 2 States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces. Article 3 1. States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under 18 are entitled to special protection. 2. Each State Party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.

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A. OPAC 3. States Parties that permit voluntary recruitment into their national armed forces under the age of 18 shall maintain safeguards to ensure, as a minimum, that: (a)

Such recruitment is genuinely voluntary;

(b) Such recruitment is done with the informed consent of the person=s parents or legal guardians; (c)

Such persons are fully informed of the duties involved in such military service;

(d) Such persons provide reliable proof of age prior to acceptance into national military service. 4. Each State Party may strengthen its declaration at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall inform all States Parties. Such notification shall take effect on the date on which it is received by the Secretary-General. 5. The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties, in keeping with articles 28 and 29 of the Convention on the Rights of the Child. Article 4 1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. 2. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. 3. The application of the present article under this Protocol shall not affect the legal status of any party to an armed conflict. Article 5 Nothing in the present Protocol shall be construed as precluding provisions in the law of a State Party or in international instruments and international humanitarian law that are more conducive to the realization of the rights of the child. Article 6 1. Each State Party shall take all necessary legal, administrative and other measures to ensure the effective implementation and enforcement of the provisions of this Protocol within its jurisdiction. 2. States Parties undertake to make the principles and provisions of the present Protocol widely known and promoted by appropriate means, to adults and children alike. 3. States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

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A. OPAC Article 7 1. States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary to the Protocol and in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with concerned States Parties and relevant international organizations. 2. States Parties in a position to do so shall provide such assistance through existing multilateral, bilateral or other programmes, or, inter alia, through a voluntary fund established in accordance with the rules of the General Assembly. Article 8 1. Each State Party shall submit, within two years following the entry into force of the Protocol for that State Party, a report to the Committee on the Rights of the Child providing comprehensive information on the measures it has taken to implement the provisions of the Protocol, including the measures taken to implement the provisions on participation and recruitment. 2. Following the submission of the comprehensive report, each State Party shall include in the reports they submit to the Committee on the Rights of the Child, in accordance with article 44 of the Convention, any further information with respect to the implementation of the Protocol. Other States Parties to the Protocol shall submit a report every five years. 3. The Committee on the Rights of the Child may request from States Parties further information relevant to the implementation of this Protocol. Article 9 1. The present Protocol is open for signature by any State that is a party to the Convention or has signed it. 2. The present Protocol is subject to ratification and is open to accession by any State. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations. 3. The Secretary-General, in his capacity as depositary of the Convention and the Protocol, shall inform all States Parties to the Convention and all States that have signed the Convention of each instrument of declaration pursuant to article 13. Article 10 1. The present Protocol shall enter into force three months after the deposit of the tenth instrument of ratification or accession. 2. For each State ratifying the present Protocol or acceding to it after its entry into force, the present Protocol shall enter into force one month after the date of the deposit of its own instrument of ratification or accession.

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A. OPAC Article 11 1. Any State Party may denounce the present Protocol at any time by written notification to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the Convention and all States that have signed the Convention. The denunciation shall take effect one year after the date of receipt of the notification by the SecretaryGeneral. If, however, on the expiry of that year the denouncing State Party is engaged in armed conflict, the denunciation shall not take effect before the end of the armed conflict. 2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Protocol in regard to any act that occurs prior to the date on which the denunciation becomes effective. Nor shall such a denunciation prejudice in any way the continued consideration of any matter that is already under consideration by the Committee prior to the date on which the denunciation becomes effective. Article 12 1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval. 2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties. 3. When an amendment enters into force, it shall be binding on those States Parties that have accepted it, other States Parties still being bound by the provisions of the present Protocol and any earlier amendments that they have accepted. Article 13 1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States Parties to the Convention and all States that have signed the Convention.

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B. OPSC OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY

The States Parties to the present Protocol, Considering that, in order further to achieve the purposes of the Convention on the Rights of the Child and the implementation of its provisions, especially articles 1, 11, 21, 32, 33, 34, 35 and 36, it would be appropriate to extend the measures that States Parties should undertake in order to guarantee the protection of the child from the sale of children, child prostitution and child pornography, Considering also that the Convention on the Rights of the Child recognizes the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development, Gravely concerned at the significant and increasing international traffic of children for the purpose of the sale of children, child prostitution and child pornography, Deeply concerned at the widespread and continuing practice of sex tourism, to which children are especially vulnerable, as it directly promotes the sale of children, child prostitution and child pornography, Recognizing that a number of particularly vulnerable groups, including girl children, are at greater risk of sexual exploitation, and that girl children are disproportionately represented among the sexually exploited, Concerned about the growing availability of child pornography on the Internet and other evolving technologies, and recalling the International Conference on Combating Child Pornography on the Internet (Vienna, 1999) and, in particular, its conclusion calling for the worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography, and stressing the importance of closer cooperation and partnership between Governments and the Internet industry, Believing that the elimination of the sale of children, child prostitution and child pornography will be facilitated by adopting a holistic approach, addressing the contributing factors, including underdevelopment, poverty, economic disparities, inequitable socio-economic structure, dysfunctioning families, lack of education, urban-rural migration, gender discrimination, irresponsible adult sexual behaviour, harmful traditional practices, armed conflicts and trafficking of children, Believing that efforts to raise public awareness are needed to reduce consumer demand for the sale of children, child prostitution and child pornography, and also believing in the importance of strengthening global partnership among all actors and of improving law enforcement at the national level,

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B. OPSC Noting the provisions of international legal instruments relevant to the protection of children, including the Hague Convention on the Protection of Children and Cooperation with Respect to Inter-Country Adoption, the Hague Convention on the Civil Aspects of International Child Abduction, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, and International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, Encouraged by the overwhelming support for the Convention on the Rights of the Child, demonstrating the widespread commitment that exists for the promotion and protection of the rights of the child, Recognizing the importance of the implementation of the provisions of the Programme of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography and the Declaration and Agenda for Action adopted at the World Congress against Commercial Sexual Exploitation of Children, held at Stockholm from 27 to 31 August 1996, and the other relevant decisions and recommendations of pertinent international bodies, Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Have agreed as follows: Article 1 States Parties shall prohibit the sale of children, child prostitution and child pornography as provided for by the present Protocol. Article 2 For the purpose of the present Protocol: (a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration; (b) Child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration; (c) Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes. Article 3 1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether these offences are committed do-mestically or transnationally or on an individual or organized basis:

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B. OPSC (a) In the context of sale of children as defined in Article 2: (i) The offering, delivering or accepting, by whatever means, a child for the purpose of: a. Sexual exploitation of the child; b. Transfer of organs of the child for profit; c. Engagement of the child in forced labour; (ii) Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption; (b) Offering, obtaining, procuring or providing a child for child prostitution, as defined in Article 2; (c) Producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in Article 2. 2. Subject to the provisions of a State Party's national law, the same shall apply to an attempt to commit any of these acts and to complicity or participation in any of these acts. 3. Each State Party shall make these offences punishable by appropriate penalties that take into account their grave nature. 4. Subject to the provisions of its national law, each State Party shall take measures, where appropriate, to establish the liability of legal persons for offences established in paragraph I of the present Article. Subject to the legal principles of the State Party, this liability of legal persons may be criminal, civil or administrative. 5. States Parties shall take all appropriate legal and administrative measures to ensure that all persons involved in the adoption of a child act in conformity with applicable international legal instruments. Article 4 1 . Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 3, paragraph 1, when the offences are committed in its territory or on board a ship or aircraft registered in that State. 2. Each State Party may take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 3, paragraph 1, in the following cases: (a) When the alleged offender is a national of that State or a person who has his habitual residence in its territory; (b) When the victim is a national of that State. 3. Each State Party shall also take such measures as may be necessary to establish its jurisdiction over the above-mentioned offences when the alleged offender is present in its territory and it does not extradite him or her to another State Party on the ground that the offence has been committed by one of its nationals. 4. This Protocol does not exclude any criminal jurisdiction exercised in accordance with internal law.

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B. OPSC Article 5 1. The offences referred to in Article 3, paragraph 1, shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties and shall be included as extraditable offences in every extradition treaty subsequently concluded between them, in accordance with the conditions set forth in those treaties. 2. If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Protocol as a legal basis for extradition in respect of such offences. Extradition shall be subject to the conditions provided by the law of the requested State. 3. States Parties that do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State. 4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with Article 4. 5. If an extradition request is made with respect to an offence described in Article 3, paragraph 1, and if the requested State Party does not or will not extradite on the basis of the nationality of the offender, that State shall take suitable measures to submit the case to its competent authorities for the purpose of prosecution. Article 6 1. States Parties shall afford one another the greatest measure of assistance in connection with investigations or criminal or extradition proceedings brought in respect of the offences set forth in Article 3, paragraph 1, including assistance in obtaining evidence at their disposal necessary for the proceedings. 2. States Parties shall carry out their obligations under paragraph 1 of the present Article in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in accordance with their domestic law. Article 7 States Parties shall, subject to the provisions of their national law: (a) Take measures to provide for the seizure and confiscation, as appropriate, of: (i) Goods such as materials, assets and other instrumentalities used to commit or facilitate offences under the present Protocol; (ii) Proceeds derived from such offences; (b) Execute requests from another State Party for seizure or confiscation of goods or proceeds referred to in subparagraph (a) (i); (c) Take measures aimed at closing, on a temporary or definitive basis, premises used to commit such offences.

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B. OPSC Article 8 1. States Parties shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process, in particular by: (a) Recognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their special needs as witnesses; (b) Informing child victims of their rights, their role and the scope, timing and progress of the proceedings and of the disposition of their cases; (c) Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a mariner consistent with the procedural rules of national law; (d) Providing appropriate support services to child victims throughout the legal process; (e) Protecting, as appropriate, the privacy and identity of child victims and taking measures in accordance with national law to avoid the inappropriate dissemination of information that could lead to the identification of child victims; (f) Providing, in appropriate cases, for the safety of child victims, as well as that of their families and witnesses on their behalf, from intimidation and retaliation; (g) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting compensation to child victims. 2. States Parties shall ensure that uncertainty as to the actual age of the victim shall not prevent the initiation of criminal investigations, including investigations aimed at establishing the age of the victim. 3. States Parties shall ensure that, in the treatment by the criminal justice system of children who are victims of the offences described in the present Protocol, the best interest of the child shall be a primary consideration. 4. States Parties shall take measures to ensure appropriate training, in particular legal and psychological training, for the persons who work with victims of the offences prohibited under the present Protocol. 5. States Parties shall, in appropriate cases, adopt measures in order to protect the safety and integrity of those persons and/or organizations involved in the prevention and/or protection and rehabilitation of victims of such offences. 6. Nothing in the present Article shall be construed as prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial.

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B. OPSC Article 9 1. States Parties shall adopt or strengthen, implement and disseminate laws, administrative measures, social policies and programmes to prevent the offences referred to in the present Protocol. Particular attention shall be given to protect children who are especially vulnerable to these practices. 2. States Parties shall promote awareness in the public at large, including children, through information by all appropriate means, education and training, about the preventive measures and harmful effects of the offences referred to in the present Protocol. In fulfilling their obligations under this Article, States Parties shall encourage the participation of the community and, in particular, children and child victims, in such information and education and training programmes, including at the international level. 3. States Parties shall take all feasible measures with the aim of ensuring all appropriate assistance to victims of such offences, including their full social reintegration and their full physical and psychological recovery. 4. States Parties shall ensure that all child victims of the offences described in the present Protocol have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible. 5. States Parties shall take appropriate measures aimed at effectively prohibiting the production and dissemination of material advertising the offences described in the present Protocol. Article 10 1. States Parties shall take all necessary steps to strengthen international cooperation by multilateral, regional and bilateral arrangements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism. States Parties shall also promote international cooperation and coordination between their authorities, national and international non-governmental organizations and international organizations. 2. States Parties shall promote international cooperation to assist child victims in their physical and psychological recovery, social reintegration and repatriation. 3. States Parties shall promote the strengthening of international cooperation in order to address the root causes, such as poverty and underdevelopment, contributing to the vulnerability of children to the sale of children, child prostitution, child pornography and child sex tourism. 4. States Parties in a position to do so shall provide financial, technical or other assistance through existing multilateral, regional, bilateral or other programmes. Article 11 Nothing in the present Protocol shall affect any provisions that are more conducive to the realization of the rights of the child and that may be contained in: (a) The law of a State Party; (b) International law in force for that State.

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B. OPSC Article 12 1. Each State Party shall submit, within two years following the entry into force of the Protocol for that State Party, a report to the Committee on the Rights of the Child providing comprehensive information on the measures it has taken to implement the provisions of the Protocol. 2. Following the submission of the comprehensive report, each State Party shall include in the reports they submit to the Committee on the Rights of the Child, in accordance with Article 44 of the Convention, any further information with respect to the implementation of the Protocol. Other States Parties to the Protocol shall submit a report every five years. 3. The Committee on the Rights of the Child may request from States Parties further information relevant to the implementation of this Protocol. Article 13 1. The present Protocol is open for signature by any State that is a party to the Convention or has signed it. 2. The present Protocol is subject to ratification and is open to accession by any State that is a party to the Convention or has signed it. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations. Article 14 1. The present Protocol shall enter into force three months after the deposit of the tenth instrument of ratification or accession. 2. For each State ratifying the present Protocol or acceding to it after its entry into force, the present Protocol shall enter into force one month after the date of the deposit of its own instrument of ratification or accession. Article 15 1. Any State Party may denounce the present Protocol at any time by written notification to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the Convention and all States that have signed the Convention. The denunciation shall I take effect one year after the date of receipt of the notification by the Secretary-General of the United Nations. 2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Protocol in regard to any offence that occurs prior to the date on which the denunciation becomes effective. Nor shall such a denunciation prejudice in any way the continued consideration of any matter that is already under consideration by the Committee prior to the date on which the denunciation becomes effective.

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B. OPSC Article 16 1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval. 2. An amendment adopted in accordance with paragraph I of the present Article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties. 3. When an amendment enters into force, it shall be binding on those States Parties that have accepted it, other States Parties still being bound by the provisions of the present Protocol and any earlier amendments that they have accepted. Article 17 1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States Parties to the Convention and all States that have signed the Convention.

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C. OPIC

C. OPIC OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON A COMMUNICATIONS PROCEDURE

The States parties to the present Protocol, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Noting that the States parties to the Convention on the Rights of the Child (hereinafter referred to as “the Convention”) recognize the rights set forth in it to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status, Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms, Reaffirming also the status of the child as a subject of rights and as a human being with dignity and with evolving capacities, Recognizing that children’s special and dependent status may create real difficulties for them in pursuing remedies for violations of their rights, Considering that the present Protocol will reinforce and complement national and regional mechanisms allowing children to submit complaints for violations of their rights, Recognizing that the best interests of the child should be a primary consideration to be respected in pursuing remedies for violations of the rights of the child, and that such remedies should take into account the need for child-sensitive procedures at all levels, Encouraging States parties to develop appropriate national mechanisms to enable a child whose rights have been violated to have access to effective remedies at the domestic level, Recalling the important role that national human rights institutions and other relevant specialized institutions, mandated to promote and protect the rights of the child, can play in this regard, Considering that, in order to reinforce and complement such national mechanisms and to further enhance the implementation of the Convention and, where applicable, the Optional Protocols thereto on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, it would be appropriate to enable the Committee on the Rights of the Child (hereinafter referred to as “the Committee”) to carry out the functions provided for in the present Protocol, 628

C. OPIC Have agreed as follows: Part I General provisions Article 1 Competence of the Committee on the Rights of the Child 1. A State party to the present Protocol recognizes the competence of the Committee as provided for by the present Protocol. 2. The Committee shall not exercise its competence regarding a State party to the present Protocol on matters concerning violations of rights set forth in an instrument to which that State is not a party. 3. No communication shall be received by the Committee if it concerns a State that is not a party to the present Protocol. Article 2 General principles guiding the functions of the Committee In fulfilling the functions conferred on it by the present Protocol, the Committee shall be guided by the principle of the best interests of the child. It shall also have regard for the rights and views of the child, the views of the child being given due weight in accordance with the age and maturity of the child. Article 3 Rules of procedure 1. The Committee shall adopt rules of procedure to be followed when exercising the functions conferred on it by the present Protocol. In doing so, it shall have regard, in particular, for article 2 of the present Protocol in order to guarantee child-sensitive procedures. 2. The Committee shall include in its rules of procedure safeguards to prevent the manipulation of the child by those acting on his or her behalf and may decline to examine any communication that it considers not to be in the child’s best interests. Article 4 Protection measures 1. A State party shall take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to any human rights violation, ill-treatment or intimidation as a consequence of communications or cooperation with the Committee pursuant to the present Protocol. 2. The identity of any individual or group of individuals concerned shall not be revealed publicly without their express consent.

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C. OPIC Part II Communications procedure Article 5 Individual communications 1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in any of the following instruments to which that State is a party: (a)

The Convention;

(b) The Optional Protocol to the Convention on the sale of children, child prostitution and child pornography; (c) The Optional Protocol to the Convention on the involvement of children in armed conflict. 2. Where a communication is submitted on behalf of an individual or group of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent. Article 6 Interim measures 1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State party concerned for its urgent consideration a request that the State party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations. 2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication. Article 7 Admissibility The Committee shall consider a communication inadmissible when: (a)

The communication is anonymous;

(b)

The communication is not in writing;

(c) The communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of the Convention and/or the Optional Protocols thereto; (d) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement; (e) All available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief;

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C. OPIC (f) The communication is manifestly ill-founded or not sufficiently substantiated; (g) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State party concerned, unless those facts continued after that date; (h) The communication is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit. Article 8 Transmission of the communication 1. Unless the Committee considers a communication inadmissible without reference to the State party concerned, the Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State party concerned as soon as possible. 2. The State party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that it may have provided. The State party shall submit its response as soon as possible and within six months. Article 9 Friendly settlement 1. The Committee shall make available its good offices to the parties concerned with a view to reaching a friendly settlement of the matter on the basis of respect for the obligations set forth in the Convention and/or the Optional Protocols thereto. 2. An agreement on a friendly settlement reached under the auspices of the Committee closes consideration of the communication under the present Protocol. Article 10 Consideration of communications 1. The Committee shall consider communications received under the present Protocol as quickly as possible, in the light of all documentation submitted to it, provided that this documentation is transmitted to the parties concerned. 2. The Committee shall hold closed meetings when examining communications received under the present Protocol. 3. Where the Committee has requested interim measures, it shall expedite the consideration of the communication. 4. When examining communications alleging violations of economic, social or cultural rights, the Committee shall consider the reasonableness of the steps taken by the State party in accordance with article 4 of the Convention. In doing so, the Committee shall bear in mind that the State party may adopt a range of possible policy measures for the implementation of the economic, social and cultural rights in the Convention. 5. After examining a communication, the Committee shall, without delay, transmit its views on the communication, together with its recommendations, if any, to the parties concerned.

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C. OPIC Article 11 Follow-up 1. The State party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee a written response, including information on any action taken and envisaged in the light of the views and recommendations of the Committee. The State party shall submit its response as soon as possible and within six months. 2. The Committee may invite the State party to submit further information about any measures the State party has taken in response to its views or recommendations or implementation of a friendly settlement agreement, if any, including as deemed appropriate by the Committee, in the State party’s subsequent reports under article 44 of the Convention, article 12 of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography or article 8 of the Optional Protocol to the Convention on the involvement of children in armed conflict, where applicable. Article 12 Inter-State communications 1. A State party to the present Protocol may, at any time, declare that it recognizes the competence of the Committee to receive and consider communications in which a State party claims that another State party is not fulfilling its obligations under any of the following instruments to which the State is a party: (a)

The Convention;

(b) The Optional Protocol to the Convention on the sale of children, child prostitution and child pornography; (c) The Optional Protocol to the Convention on the involvement of children in armed conflict. 2. The Committee shall not receive communications concerning a State party that has not made such a declaration or communications from a State party that has not made such a declaration. 3. The Committee shall make available its good offices to the States parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the Convention and the Optional Protocols thereto. 4. A declaration under paragraph 1 of the present article shall be deposited by the States parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communications by any State party shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State party concerned has made a new declaration.

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C. OPIC Part III Inquiry procedure Article 13 Inquiry procedure for grave or systematic violations 1. If the Committee receives reliable information indicating grave or systematic violations by a State party of rights set forth in the Convention or in the Optional Protocols thereto on the sale of children, child prostitution and child pornography or on the involvement of children in armed conflict, the Committee shall invite the State party to cooperate in the examination of the information and, to this end, to submit observations without delay with regard to the information concerned. 2. Taking into account any observations that may have been submitted by the State party concerned, as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State party, the inquiry may include a visit to its territory. 3. Such an inquiry shall be conducted confidentially, and the cooperation of the State party shall be sought at all stages of the proceedings. 4. After examining the findings of such an inquiry, the Committee shall transmit without delay these findings to the State party concerned, together with any comments and recommendations. 5. The State party concerned shall, as soon as possible and within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee. 6. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2 of the present article, the Committee may, after consultation with the State party concerned, decide to include a summary account of the results of the proceedings in its report provided for in article 16 of the present Protocol. 7. Each State party may, at the time of signature or ratification of the present Protocol or accession thereto, declare that it does not recognize the competence of the Committee provided for in the present article in respect of the rights set forth in some or all of the instruments listed in paragraph 1. 8. Any State party having made a declaration in accordance with paragraph 7 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General of the United Nations. Article 14 Follow-up to the inquiry procedure 1. The Committee may, if necessary, after the end of the period of six months referred to in article 13, paragraph 5, invite the State party concerned to inform it of the measures taken and envisaged in response to an inquiry conducted under article 13 of the present Protocol.

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C. OPIC 2. The Committee may invite the State party to submit further information about any measures that the State party has taken in response to an inquiry conducted under article 13, including as deemed appropriate by the Committee, in the State party’s subsequent reports under article 44 of the Convention, article 12 of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography or article 8 of the Optional Protocol to the Convention on the involvement of children in armed conflict, where applicable. Part IV Final provisions Article 15 International assistance and cooperation 1. The Committee may transmit, with the consent of the State party concerned, to United Nations specialized agencies, funds and programmes and other competent bodies its views or recommendations concerning communications and inquiries that indicate a need for technical advice or assistance, together with the State party’s observations and suggestions, if any, on these views or recommendations. 2. The Committee may also bring to the attention of such bodies, with the consent of the State party concerned, any matter arising out of communications considered under the present Protocol that may assist them in deciding, each within its field of competence, on the advisability of international measures likely to contribute to assisting States parties in achieving progress in the implementation of the rights recognized in the Convention and/or the Optional Protocols thereto. Article 16 Report to the General Assembly The Committee shall include in its report submitted every two years to the General Assembly in accordance with article 44, paragraph 5, of the Convention a summary of its activities under the present Protocol. Article 17 Dissemination of and information on the Optional Protocol Each State party undertakes to make widely known and to disseminate the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular with regard to matters involving the State party, by appropriate and active means and in accessible formats to adults and children alike, including those with disabilities. Article 18 Signature, ratification and accession 1. The present Protocol is open for signature to any State that has signed, ratified or acceded to the Convention or either of the first two Optional Protocols thereto. 2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Convention or either of the first two Optional Protocols thereto. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

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C. OPIC 3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention or either of the first two Optional Protocols thereto. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General. Article 19 Entry into force 1. The present Protocol shall enter into force three months after the deposit of the tenth instrument of ratification or accession. 2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or instrument of accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession. Article 20 Violations occurring after the entry into force 1. The Committee shall have competence solely in respect of violations by the State party of any of the rights set forth in the Convention and/or the first two Optional Protocols thereto occurring after the entry into force of the present Protocol. 2. If a State becomes a party to the present Protocol after its entry into force, the obligations of that State vis-à-vis the Committee shall relate only to violations of the rights set forth in the Convention and/or the first two Optional Protocols thereto occurring after the entry into force of the present Protocol for the State concerned. Article 21 Amendments 1. Any State party may propose an amendment to the present Protocol and submit it to the Secretary-General of the United Nations. The Secretary-General shall communicate any proposed amendments to States parties with a request to be notified whether they favour a meeting of States parties for the purpose of considering and deciding upon the proposals. In the event that, within four months of the date of such communication, at least one third of the States parties favour such a meeting, the Secretary-General shall convene the meeting under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States parties present and voting shall be submitted by the Secretary-General to the General Assembly for approval and, thereafter, to all States parties for acceptance. 2. An amendment adopted and approved in accordance with paragraph 1 of the present article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States parties that have accepted it.

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C. OPIC Article 22 Denunciation 1. Any State party may denounce the present Protocol at any time by written notification to the Secretary-General of the United Nations. The denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General. 2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under articles 5 or 12 or any inquiry initiated under article 13 before the effective date of denunciation. Article 23 Depositary and notification by the Secretary-General 1. The Secretary-General of the United Nations shall be the depositary of the present Protocol. 2.

The Secretary-General shall inform all States of: (a)

Signatures, ratifications and accessions under the present Protocol;

(b) The date of entry into force of the present Protocol and of any amendment thereto under article 21; (c)

Any denunciation under article 22 of the present Protocol.

Article 24 Languages 1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States.

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Index Bold numbers refer to articles, normal ones to margin numbers. 3AQ model 7 6, 24 2 4-A scheme – education 28 3, 8 Abduction 7 4, 8 8, 9 3, 35 1, 4 – international child 11 1 Abortion 1 7, 17, 3 10, 6 5, 7 28, 24 23 – selective 2 10, 6 6 Abuse 9 5 et seq., 19 4 – protection against 25 1 – religiously motivated 19 7 – sexual 34 1, 37 6 Accession – Convention on the Rights of the Child 46-54 2 Accomodation – child-friendly 22 30 – collective 22 30, 31 2, 4 Accomodation facilities 22 22, 30 Accompanied minors 22 10, 13 Actio popularis F 10 Action plans – national 4 15 et seq., 17 8, 23 13, 26 6, 29 3, 33 4, 34 7, 35 6, 38 27 Additional Protocols to the Geneva Conventions (1977) D 19, 22 5, 8, 37 32, 38 2, 7, 8, 16, 23, 30, 34, 41, 44, 49 Adequate standard of living 30 9 – deprivation of liberty 37 24 – right to 26 8, 27 1, 4, 15 Administrative detention 37 2, 13 et seq. Admissibility – of individual communications F 5 Adolescents 6 3, 18, 7 10, 19, 9 3, 10 20, 12 35, 14 11, 15 2, 16 8, 17 1, 20 3, 24 5, 18, 25, 28 15, 18, 32 3, 21, 33 3 et seq., 37 6, 38 6, 40 9, 26, 36 Adoption 7 17, 24, 8 8, 10 9, 12 12, 21 1, 44-45 23, 46-54 10 – anonymous 7 19 – Convention on the Rights of the Child D 4 – domestic 21 3 – homosexuality 21 22 – illegal 34 10 – informed consent 21 9 – inter-country 21 11, 16, 19, 35 5 – Optional Protocols to the CRC D 5 et seq. – prerequisites 21 4 – stepchild 21 22 Adoption proceedings – best interests of the child 21 4, 21 – competent authority 21 7 – hearing of the child 21 9 – minimal safeguards 21 7

– prohibition of discrimination 21 8 – views of the child 21 5 Adoptive family 16 6 Adoptive parents 21 4, 6 Adult prison 37 21 Adult-child relationship 12 1 Adults – young 40 5, 27 Adversary proceedings – principle of 40 17 Advertising bans 13 14 Advertising practice – online 17 20 Affirmative action 2 18, 19, 30 9 African Charter on the Rights and Welfare of the Child (1990) D 21 Age – biological 12 14 – chronological 12 14 Age limit 1 3 Age of employment 28 10 Age of majority F 6, 1 3, 22 14, 34 5, 37 7, 32, 44-45 20 – digital 17 1 Age-assessment process F 16, 25, 27, 31, 1 10, 12 25, 36 – benefit of the doubt 1 12, 13, 22 11 – Greulich and Pyle test 1 11, 18 – legal advisor 22 18 Airport – transit area 3 21, 22 17 Albinism 2 29, 6 12, 44-45 40 Alcohol 13 14, 24 23, 33 3 Alternative care 20 1, 21 1, 25 6, 27 7, 37 14, 27, 44-45 23 – best interests of the child 20 12 – child-sensitive 20 10 – measure of last resort 20 8, 13 – monitoring 20 14 – views of the child 20 12 Alternative dispute mechanisms 12 20 Alternative education 28 16, 22 Alternative institutional care 20 5 Alternative measures 40 13 Alternative substitute care 20 7 Amendment – Convention on the Rights of the Child 46-54 4 Anonymity F 6, 13, 17 14, 22, 23, 34 14, 40 24 Anonymous adoption 7 19 Anonymous birth 7 19, 28

637

Index Anti-discrimination convention 29 11 Anti-discrimination instrument D 45 Applicability – direct F 5 Argentina 8 2, 8 Armed conflict 6 8, 12, 16, 20 4, 22 5, 38 1, 20, 39 5, 44-45 26, 40 et seq. – children’s rights 38 4 – definition of 38 10 – derogation clause 38 3 – international 38 2, 11 – non-international 38 2, 11 – refugee children 38 5 – right to education 38 47 Armed forces 38 2, 19 – recruitment 38 6 Arrest 37 1, 10 et seq. Artifical reproduction 7 28 Artificial insemination 7 20, 8 4 Artificial procreation 21 12 Artistic life 31 6 et seq. Assembly – freedom of peaceful 15 1 – peaceful 15 5, 7 Assimilationist policies 30 7 Assistance – free of charge 23 14 Association – freedom of 15 1 – right to form 15 6 – right to join 15 6 – right to leave 15 6 Asylum – right to 22 1, 25 Asylum facility 22 10 Asylum law 3 21, 37 14 Asylum procedure 12 36, 19 12, 22 1 – best interests of the child 22 6 – competent authorities 22 19 – hearing of the child 22 17 – procedural fairness 22 9 – qualified legal counsel 22 17 – translator 22 19 Asylum proceedings 10 11, 12 13 Asylum seeking children 2 32 Asymmetric warfare 38 11 Asymmetrical approach – prohibition of discrimination 2 7 Attention deficit disorder 20 13, 24 3, 25 2 Authentic language versions – Convention on the Rights of the Child 46-54 15 Autism 40 27 Autistic children 28 13

638

Available resources 4 21, 6 20, 11 5, 23 4, 24 14, 26 7, 27 8 – maximum extent possible 4 20, 23 11 Awareness-raising 2 39, 4 17, 17 23, 18 6, 11, 19 6, 8, 10, 20 8, 24 24, 33 3, 4, 34 10, 12 Babies 12 9, 11 Backlog – State reports 43 6 Barriers – social 23 12 Beginning of life Preamble 5, 6 5 Beijing Rules (1985) D 29, 37 20, 23, 40 25, 28, 30, 35 Benefit of the doubt 1 12, 37 7, 40 26 – age-assessment process 22 11, 18 – refugee status determination procedure 22 17 Best interests of the child – adoption proceedings 21 4 – alternative care 20 12 – asylum procedure 22 6 – basic concern of parents 18 1 – customary law 3 24 – dynamic interpretation 3 11 – European Union law 3 25 – evolving capacities of the child 3 13 – family reunification 10 4 – guidelines 3 15 – guiding principle 3 5 et seq. – health care 24 3 – horizontal effects 3 7 – immigration proceedings 37 15 – method for determining 3 12, 12 40 – migration policy 3 16 – optimisation tool 3 9 – parents 3 8, 19 – perspective of a temporal nature 3 14 – primary consideration 3 3 et seq. – prohibition of exploitation Introduction Art. 32-36 4 – right to express views 12 40 – self-executing norm 3 6 – separation 9 5 – surrogate motherhood 7 29 Biological father 9 12 Biological parents 7 17 Birth – anonymous 7 19, 28 Birth certificate F 23, 8 6 Birth registration 7 31, 8 5, 38 27, 40 5 – right to 7 2, 4, 6 Bonded labour 32 8 Books 17 11 Border controls 22 14 Braille 28 13 Breastfeeding 24 23 et seq. Brussels II-a Regulation 11 13, 17

Index Brussels II-b Regulation 11 13, 17 Budget 4 27 et seq. – right to education 28 11 Bullying 19 5, 28 24 et seq. Burkini 14 14 Burqa – female teachers 14 14 Business enterprises 32 14 Capacity-building 4 18, 44-45 52 Capital punishment 44-45 21 – prohibition of 6 9, 22, 37 7 Care – alternative 20 1, 7, 12, 21 1, 25 6, 27 7, 37 14, 27, 44-45 23 – by parents 7 25 – children with disabilities 23 9 – extra-familial 20 2 et seq., 13, 18, 21 13 Care facilities – child-friendly 20 2 Care institutions – child-friendly 20 20 – child-friendly standards 20 15 – complaint mechanism 20 16 – monitoring 20 14 Care providers – qualification of 20 10 Care standards 20 7 Caregivers 9 5, 11, 10 18, 12 7, 19 4, 40 19, 20 Catch-all provision Introduction Art. 32-36 1, 22 3, 36 1, 37 6 Child – definition of 1 1, 14, 15, 38 15 – unborn 3 10 Child abduction – expeditious reversal 11 17 – international 11 1 et seq., 17, 22 – multilateral agreements 11 7 Child allowances 26 3, 27 8 Child justice system 40 1 Child labour 28 12 – exploitative 32 1, 3 Child maintenance 27 11 – recovery of 27 12, 14 – transnational situations 27 13 Child marriage 1 4, 2 24, 3 18, 10 3 Child mortality 24 15, 33, 30 9 Child pornography 34 15 Child Rights Connect D 7, 44-45 36 Child soldiers 6 8, 32 18, 38 1, 30, 51, 39 3 et seq., 11, 40 5 Child terrorists 38 1, 39 3 Child-care services 18 9 et seq., 12 Child-friendly infrastructure – deprivation of liberty 37 20 Child-friendly measures 12 2, 19, 29

Childhood – beginning of 1 7 – definition of 1 2, 14 et seq. – end of 1 3, 5 – Middle Ages D 1 – philosophical approach D 2 – Roman law D 1 Child-rearing responsibilities 18 8 Children commissioner 4 9 Children’s ombudsmen 44-45 36 Child’s advocate 12 20 et seq., 23 Circumcision of boys 3 13, 18, 12 32, 14 15, 19 9, 24 29, 35 Citizenship 30 7 Citizenship Directive – European Union 10 18 Civil society organisations 43 7, 44-45 36 et seq., 46, 49 Civilian population – armed conflict 38 1, 3, 16, 43, 44 – children’s subjective rights 38 45 Class distinctions – abolitions of 2 21 Climate change 24 22, 31 Clothing 27 5 Clusters – State reports 44-45 18, 29 et seq., 32 et seq. Codes of conduct 17 13 Cohabitation 5 15 Coherence 3 17, 4 24, 13 11 Cold War D 35, 46 Collective complaints F 10 Collective rights 24 32, 28 27, 30 6 Combatants 6 8, 38 1, 16 Common Article 3 of the Geneva Conventions 38 45 Common core document 44-45 31 Communication – non-verbal 12 9 Compensation 37 5, 39 9 Concluding Observations 44-45 42 – legally non-binding 44-45 12 – preparation of 44-45 10 – principle of good faith 44-45 13 – reputational accountability 44-45 13 – structure 44-45 11 Concurring opinions – individual communications procedure F 29 Confession 40 11 – by torture 37 5, 40 20 Conflict – armed 38 1 Conscience – freedom of 14 1

639

Index Conscription – compulsory 38 35 et seq. – forced 38 35, 39 4 – voluntary 38 35 et seq. Consent – informed 23 17 Constitutional implementation – of children’s rights D 31, 4 3, 4 Constructive dialogue 44-45 2, 8 et seq., 39, 52 Contact – restrictions 9 12 – right to maintain 9 11, 13, 15, 21, 10 12 et seq., 21, 11 8 Contraception 24 25 Convention on Action against Trafficking in Human Beings (2005) 35 10 Convention on the Access Rights of Children (2003) 9 21 Convention on the Exercise of Children’s Rights (1996) 4 31 Convention on the Reduction of Statelessness (1961) 7 12 Convention Relating to the Status of Refugees (1951) 7 15, 22 1, 3, 5, 24 et seq., 35 10, 37 6 – refugee definition 22 4 Convention relating to the Status of Stateless Persons (1954) 7 15 Corporal punishment 19 1, 3, 14 et seq., 37 4, 44-45 44 – in schools 19 1, 28 24, 31 – prohibition of 19 6 Corporations – transnational 4 11 Correspondence – freedom of 17 20 – online 17 20 – protection of 16 2, 8, 13 Council of Europe 44-45 36 – activities with regard to children D 22 Country of destination 22 9, 16 Country of habitual residence 11 19, 21, 23 Country of origin F 23, 10 11, 20, 11 10, 21 14, 22 9, 16, 20 Country of relocation 11 21 Country of residence 10 2, 11, 20, 11 11 Country of return 22 9, 16 Country of transit 22 9, 16 Courts – juvenile 40 25 COVID-19 24 13, 28 12, 44-45 45 CRC Committee – agenda 43 15 – Bureau 43 12 – Chair 43 11, 12 – composition 43 3 et seq. – duration of meetings 43 14

640

– electoral procedure for appointing members 43 7 – emoluments 43 17, 44-45 14 – independence and impartiality 43 4 – informal meetings 43 16 – internal organisation 43 5 – list of issues 44-45 6 – membership 43 2 – place of meetings 43 14 – plenary session 43 6, 44-45 4, 6 et seq. – pre-hearing session 44-45 4, 6 – preparation of Concluding Observations 44-45 10 – private meetings 43 11, 44-45 10 – public meetings 43 11, 44-45 9 – rapporteur 43 12, 44-45 8 – regular sessions 43 15 – renumeration of members 43 17 – rules of procedure 43 5, 9 – Rules of Procedure under OPIC F 20 – Secretariat F 21 – sessions 43 14 – special sessions 43 16 – two-chamber system 43 6 – urgent actions 44-45 43 – vacancy of seats 43 8 – voting procedure 43 13 – working group 43 10, 44-45 4 et seq., 36 – working languages F 13, 43 10 – workload 43 6, 44-45 14, 57 Criminal charges – prompt information of 40 13 Criminal detention 37 31 Criminal justice – child-friendly 40 25, 33 Criminal justice system 34 10, 40 1 Criminal laws 6 11, 40 3 – retroactivity 40 10 Criminal offence 10 20, 40 3 Criminal records 40 24, 28 Criminal responsibility – maximum age 40 27 – minimum age 1 5, 2 9, 40 1, 26 et seq., 33 Culpability 40 31 Cultural identity 29 6, 30 7 Cultural life 31 6 et seq. Cultural relativism 46-54 13 Custody 12 12, 18 2 – joint 18 5, 13 – parental 9 10 – restoration of 11 15 Custody decisions 11 1, 14, 20 19 – expeditious procedure 11 6, 18 – jurisdictional rules 11 19 – recognition of 11 9 Custody disputes 11 11, 22 Custody procedure – expeditious procedure 11 16, 22

Index – hearing of the child 11 15, 20 Custody rights 11 10, 11 Customary law D 24, F 9, 3 24, 7 11, 38 8, 12, 30, 36, 51, 41 3, 4, 44-45 55, 46-54 6, 15 Cyber bullying 13 13, 17 15, 20, 28 25 Cyber mobbing 17 14, 28 25 Cyber violence 16 8 Cybercrime Convention (2001) 34 17 Darknet 34 14 Data – disaggregated 2 37, 4 16, 29 3 Day of General Discussion 17 4, 5, 24 32, 44-45 44, 45, 46 De facto family F 26 Death penalty – prohibition of 1 16, 6 9, 22, 37 1, 7, 32, 46-54 8 Debt bondage 32 8, 35 3 Declaration of the Right to Development (1986) 6 18 Declaration of the Rights of the Child (1924) D 2 et seq., 12 et seq., Preamble 3, 6 15, 22 24, 28 28 Declaration of the Rights of the Child (1959) D 14, Preamble 3, 3 4, 23, 6 15, 23 20, 27 3, 31 1, 9 Declaration on the Rights of Disabled Persons (1975) 23 6 Declaration on the Rights of Indigenous People (2007) 12 42, 30 13 Degrading treatment – prohibition of 37 3, 6 Delinquency 40 2, 25 Democracy 29 5 Demonstrations 15 7 Denial of justice F 26 Denunciation – Convention on the Rights of the Child 46-54 5 Deportation F 11, 16, 22, 24, 27, 6 13, 22 4, 24 28, 37 16, 35, 39 11 – detention 22 30, 37 14 Depositary – Convention on the Rights of the Child 46-54 2 Deprivation of liberty 37 1, 2, 9, 33 – adequate standard of living 37 24 – alternatives to 40 30 – forms of 37 19 – judicial review 37 27 – legality 37 28 – measure of last resort 37 10, 25, 34 – right to a prompt decision 37 29 – right to family contact 37 23 – separation from adults 37 21

– shortest appropriate period of time 37 10, 16 – translator 37 29 Derogation – of rights 6 4, 14 1, 37 5, 20, 38 3, 49 Derogation clause 38 3, 49 Descent – knowledge of one’s 7 18 Detention 37 1 et seq., 10 et seq., 31, 33, 35 – deportation 22 30 – immigration 22 30 – incommunicado 37 6 – of children 22 10 – preventive 25 7 Detention centres 19 2, 37 19 Development – right to 6 1, 27 5 Development of personality 29 4 Dialogue – constructive 44-45 2, 8, 39, 52 Digital environment 6 3, 17 11, 31 4 Digital media 17 5 Digitisation – of societies 17 4, 34 15 Dignity – human 7 4, 23, 12 5, 13 1, 14 2, 16 3, 19 14, 23 6 et seq., 28 24, 31, 29 10, 30 5, 9, 34 11, 37 20, 39 4, 12, 40 1, 3, 33 Dimensions of human rights D 35, 4 19 et seq., 28 27 Direct applicability F 5, 3 6, 20 2, 7, 27 4, 38 33 – of children’s rights D 32 Direct participation in hostilities – definition of 38 29 Disability – children with 2 10, 3 17, 6 12, 19, 7 7, 9 3, 7, 10, 12 4, 38, 18 14, 19 1, 20 6, 8, 13, 21 5, 23 1, 19, 24 9, 12, 25 2, 26 1, 27 9, 28 13, 29 3, 31 2 et seq., 8, 34 13, 40 9, 22, 27, 42 1, 44-45 21, 24, 46-54 11 – definition of the term 2 30, 23 3 – human-rights-based approach 23 5, 8, 25 – mental 23 3, 17 – physical 23 3 – psychosocial 23 8, 24 3 – soft law instruments 23 23 – welfarist approach 23 5, 22, 25 Disappearances – forced 7 25, 8 2, 8, 10, 9 16, 23 Disasters – natural 39 5 Discipline – in schools 28 24 Discontinuance – individual communications procedure F 24 et seq. Discovery of family members 22 23

641

Index Discrimination – caste-based 2 21 – de facto 2 17, 21, 36, 30 5 – de jure 2 17, 36 – definition of the term 2 14 – direct 2 15 – gender-based 44-45 21 – grounds of 2 20 – hidden 2 15 – in education 2 25 – indirect 2 15, 21 – intersectional 2 10 et seq., 4 16, 23 2, 30 2 – mediated 2 8, 11, 20, 33, 35, 38, 7 8, 23 26 – multiple 2 10 et seq., 23 14 – non-autonomous prohibition of 2 12 – of women and girls 2 23 et seq., 7 13 et seq. – on grounds of disability 2 29 – on grounds of ethnic origin 2 31 – on grounds of national origin 2 22 – on grounds of „other status” 2 32 – on grounds of race 14 19 – on grounds of religion 2 28, 14 4 – on grounds of sex 2 23 – on grounds of sexual orientation 2 27 – on grounds of statelessness 7 15 – open 2 15 – prohibition of 2 5, 8, 17 6, 20 3, 37 12, 20 – prohibition of (European Union law) 2 41 – reverse 2 18 Disease – chronic 24 10 Displaced children 8 5, 38 43 Dissemination – Convention on the Rights of the Child 4 15, 17, 42 2 – General Comments 44-45 48 – of information 17 8 – of online content 17 22 – of the Third Protocol to the CRC (OPIC) F 19 – of the views of the CRC Committee F 30 Dissemination clause 42 1, 3 Dissenting opinions – individual communications procedure F 29 Diversionary measures 40 13, 28 – consent of the child 40 29 – right to review 40 29 Diversity 29 7 – religious 14 16 Divorce 9 11, 10 12, 11 1, 12 12, 28, 18 2, 4 Double jeopardy – principle of 40 10, 34 Drafting process – Convention on the Rights of the Child D 8 et seq. Drug abuse 44-45 24 Drug addiction 24 10, 23 Drug detention centres 33 4

642

Drugs 13 14, 17 14, 23 17, 38 1 – narcotic 33 1, 2, 4, 6 – trafficking in 33 5 Drugs strategy – European Union 33 7 Due process rights 12 24, 29, 40 1, 7, 24 – return procedure 22 16 Duplication – of children’s rights D 24, 40, 13 2 Duty to ensure F 9, 2 4, 14 4, 38 17 Duty to fulfil F 9, 4 22, 13 4, 14 4, 24 2, 4, 31 8 Duty to protect F 9, 4 22, 13 4, 14 4, 24 4, 31 8 Duty to respect 2 4, 4 22, 13 4, 14 4, 24 4, 31 8, 38 17 Dynamic interpretation 3 11, 13 17, 17 4, 7, 23 5, 13, 24, 41 1 Dyscalculia 28 13 Dyslexia 28 13 Ecological rights 24 31 Economic exploitation 28 12, 32 1 et seq. – definition of 32 3, 7 – protection against 32 6 ECOSOC D 9 Education – 4-A scheme 28 8 – access to 22 12, 23 15 – alternative 28 16, 22 – bilingual 29 6 – child-friendly 29 4 – concept of 28 4, 6, 29 1, 12 – content and values 29 1 – deprivation of liberty 37 2 – digital 29 5 – hidden costs 28 11 – higher 28 18 – in schools 31 2, 32 10 – inclusive 23 15 et seq., 28 13 – migrant children 28 14 – multi-lingual 28 21 – non-violent 19 8 – objectives 29 2 – parental rights 28 12, 30 – personality development 28 4 – pre-school 28 7 – primary 28 9, 29 – quality of 29 10, 30 10 – rehabilitation programmes 39 10 – right to 17 10, 18, 28 1, 28, 30 10, 37 24, 38 47, 44-45 25 – rights in 28 1 – rights through 28 1, 29 4 et seq. – secondary 28 15, 17 – sex 28 21 – vocational 28 16 Education policies 29 2 et seq. – right to express views 12 34 Education system – participation rights 28 23

Index Educational curricula 4 17, 29 3 Educational environment 14 8 Educational institutions – private 29 9 – public 29 9 Educational objectives 29 1 et seq., 10, 40 4 – direction to a responsible life 29 7 – respect for cultural identity 29 6 – respect for human rights 29 5 – respect for parents 29 6 – respect for the natural environment 29 7 et seq. Electroconvulsive treatment 19 8 Emancipation 37 12 Emancipatory approach 15 3 Emancipatory character D 37, 45, 12 1, 13 11, 23 24 Embryo Preamble 5, 1 16 et seq. Emergency – situation of 38 3 – times of 6 4, 37 20 Emergency clauses 38 10 Emigration 10 16 Employment – minimum age 32 2, 10, 19 Empowerment 23 5, 30 8, 10, 34 8, 10, 37 29 Endemic problems 44-45 47, 54 Enforced disappearances 7 25, 8 2, 8, 10, 9 16, 23 Enlistment – to armed forces 38 35 Enter a country – right to 10 6, 14, 19 Enterprises – business 6 21, 17 16, 32 14 – multinational 2 3, 4 11, 32 1, 12 et seq. Entry into force – Convention on the Rights of the Child D 10, 46-54 3 Environmental degradation 24 32 Environmental education 29 8 Environmental pollution 24 18, 22, 31, 27 1 Equal opportunities 2 4 – school education 28 5 Equal treatment – principle of 2 6 Equality of arms 40 16 et seq., 20 – principle of F 25 European Charter for Regional or Minority Languages (1992) 30 14 European Convention on Nationality (1997) 7 31 European Convention on the Adoption of Children (2011) 21 20 European Convention on the Exercise of Children’s Rights (1996) 19 14

European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (1980) 11 8, 13 European Rules for Juvenile Offenders 37 25 European Union – activities with regard to children D 22 European Union law – best interests of the child 3 25 – prohibition of discrimination 2 41 Evidence 40 11 – by torture 37 5, 40 20 Evolving capacities 3 13, 5 11 et seq., 12 11, 31, 13 8, 14 2, 10 et seq., 15 9, 16 5, 11, 17 21, 20 7, 24 5, 31 5, 40 1 Exchange – of information 23 18 Exhaustion of domestic remedies F 15 et seq. Expeditious procedure 9 13, 11 6 Exploitation 19 4, 22 4, 39 1, 44-45 26, 46-54 11 – definition of 36 2 – economic Introduction Art. 32-36 3, 28 12, 32 1, 2 – forms of 36 1 – prohibition of Introduction Art. 32-36 4 – sexual Introduction Art. 32-36 3, 17 22, 34 1, 38 43 – various forms of Introduction Art. 32-36 1 Exploitative child labour 32 1, 3, 21 Expression – freedom of 12 39, 13 1, 17 17 Expulsion F 16, 10 7, 21, 22 7 – of Union citizens 10 18 Extended family 5 2 et seq., 6, 10 9, 16 6, 20 5, 27 6 Extradition 6 13, 35 6 Extra-familial care 20 2 et seq., 13, 18, 21 13 Extraordinary renditions 9 23 Extraterritorial – effects 24 28 – jurisdiction F 14, 2 2 et seq., 4 25, 34 7 Extraterritorial application – of human rights 32 12 et seq., 34 7, 9 Fair hearing 12 17, 19, 25, 40 17, 28, 36 – child-friendly circumstances 12 26 Fair trial 12 17, 40 4, 7, 12, 22 Family – de facto F 26, 5 14, 10 9 – definition of 5 4, 14 – extended 5 2 et seq., 6, 10 9, 16 6, 20 5, 27 6 – nuclear 5 3, 6 – private life 5 17 – protection of 16 2, 6, 13 Family abuse 19 13 Family cohesion 9 1

643

Index Family contact – right to 37 26 Family disputes – cross-border 11 1 Family environment 9 2 et seq., 10 4 – children deprived of 20 1, 4, 7, 21 3 Family life – right to a 9 3, 18, 10 17, 11 2, 37 24 Family members – discovery 22 23 Family planning services 24 25 Family reunification 3 21, 10 2, 5, 17, 22 8, 21 – best interests of the child 10 4, 6, 20 – cross-border situations 11 2 – expeditious procedure 10 8 Family reunion 9 6 Family ties 9 18, 10 20 Family unit 9 3, 17, 10 4, 18 1 Family unity 10 12 Father – biological 5 14, 9 12, 18 13 – non-marital 7 16 – role of the 18 2 Favourability clause 11 9, 38 13, 31, 41 1 Federal States F 14, 4 6 Federal States clause 46-54 1 Female genital mutilation F 24, 27, 3 18, 6 12, 20, 9 19, 11 31, 14 15, 19 9, 12, 24 26, 28 et seq., 34 et seq., 30 7, 37 6, 44-45 49, 46-54 12 Files – right to inspect 40 17 Film – freedom of 17 19 First Optional Protocol to the CRC (OPAC) D 5, 38 6, 24 et seq., 27, 34, 36 et seq., 42, 39 1, 11, 44-45 41, 44, 46-54 14 – reporting guidelines 44-45 17 Flexibility clause 2 24 – risk of discrimination 1 6 – upper age limit 1 3, 6 Follow-up procedure 44-45 14 – individual communications procedure F 30 – State reports 44-45 42 Forced labour 32 20 Forced marriage 2 33, 6 20, 24 26, 34 13, 35 1, 44-45 49, 46-54 12 Foreign terrorist fighter 38 1, 39 4, 40 5 Forum shopping 11 1 Foster care placement 22 10 Foster families 20 6, 11, 13, 15, 19 Foster parents 5 4, 15, 9 11, 10 9, 12 10 Foster placements 20 5, 10, 25 4 “Four P’s” D 38 Framework Convention for the Protection of National Minorites (1994) 30 14

644

Freedom of association 15 1, 6, 10 Freedom of conscience 14 1, 3, 18 – child-specific interpretation 14 2 – definition of 14 6 Freedom of expression 12 39, 13 1, 17 17 – scope 13 4 Freedom of information 12 39, 13 7, 17 15, 18 Freedom of peaceful assembly 15 1, 7, 10 Freedom of religion 14 1, 3, 18, 46-54 11 – child-specific interpretation 14 2 – definition of 14 7 – manifestation 14 7 Freedom of thought 14 1, 3, 18 – child-specific interpretation 14 2 – definition of 14 5 Freedom to form opinions 13 5, 16 Freedom to hold opinions 13 5, 16 “Fridays for Future” 29 8 Gender equality 17 9, 18 1, 29 3 Gender stereotypes 2 24, 18 2 General Comments – authoritative guidance 44-45 47 – dissemination 44-45 48 – drafting of 44-45 38, 44 – elaboration of 44-45 46 – interpretative aid 44-45 47 – joint 44-45 49, 51 – legally non-binding 44-45 47 General Data Protection Regulation – European Union 17 21 General principles – Convention on the Rights of the Child D 41, 2 5, 3 2, 4 3, 5, 5 1, 6 1, 16, 12 1, 42 1, 44-45 21 Geneva Conventions (1949) D 19, 6 8, 8 13, 22 5, 8, 24, 37 3, 32, 38 2, 7, 8, 16, 21, 44, 49 Genital mutilation – female 3 18 German Democratic Republic 7 17 Germany D 31, 43, F 12, 20, 2 22, 3 3, 20, 4 3, 5 7, 6 3, 7 11, 9 12, 14 13, 17 24, 18 10, 19 7, 8, 21 2, 12, 24 31, 32, 29 7, 37 22, 30, 31, 38 37, 39 11, 46-54 13, 16 Gestational parents 7 17 Global warming 24 31 Globalisation 11 1, 34 1, 9 Good faith – principle of F 29, 44-45 13 Grandparents 5 5, 14 et seq., 9 10, 20 5 Greulich and Pyle test 1 11 et seq., 18 Grooming 17 14, 34 2, 18, 35 11 Groups of children F 7, 4 16, 12 4, 13 Guardian 5 2, 18 7, 19 4, 5, 40 19, 20 Guardian ad litem F 17, 9 10, 20

Index Guidelines on child-friendly justice – Council of Europe 2 9, 11, 12 30, 43, 40 36 Habeas corpus 37 27 Hague Convention No. 23 27 14 Hague Convention No. 24 27 14 Hague Convention No. 38 27 14 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (1993) 21 16, 19 Hague Convention on the Civil Aspects of International Child Abduction (1980) 11 8, 10, 12 42 Harmful practices – traditional 24 26, 27 Harmonised guidelines – State reporting procedure 44-45 31 et seq. Hate speech 13 13, 16, 17 6 Havana Rules (1990) 37 12, 18, 20, 23 et seq., 40 35 Hazardous work 32 7, 10 – definition of 32 11 – protection against 32 10 Headscarves – Islamic 14 14 Health – definition of 24 7 – mental 25 2 – physical 25 2 – reproductive 24 25 – right to 4 12 – right to the highest attainable standard 24 1, 33 – sexual 13 9 Health care 12 13, 44-45 24 – access to 22 12 – best interests of the child 24 3 – deprivation of liberty 37 2 – post-natal 24 23 – pre-natal 24 23 – preventive 23 1, 18 – primary 24 13, 17 – right to 37 24 – right to express views 12 32 Health care services 23 15, 24 11 Health facilities 24 2 Health sector – privatisation 24 4 Hearing – fair 40 17, 28, 36 – public 40 24 Hearing of the child – adoption proceedings 21 9 – asylum procedure 22 17 – custody procedure 11 15 Higher education 28 18 HIV/AIDS 2 33, 20 13, 24 13, 15, 17, 23, 25, 33 1, 34 12, 38 4

Holistic approach D 34, 39, 6 15, 18 8, 27 1, 5, 8, 28 3, 29 4, 31 1, 2, 6, 34 17, 38 3, 43 3 – right to development 6 18 – right to life 6 15 Holy See D 10, 2 3, 7 18, 32 8, 34 8, 46-54 2 Home – protection of 16 2, 7, 13 Homeless children 27 9, 31 3 Home-schooling 28 12 Homophobia 29 7 Homosexual children 2 10 Homosexual relationships 5 16 Homosexuality 18 13, 22 3, 44-45 37 – adoption 21 22 Honour – protection of 16 2, 9 Horizontal clause 30 1 Horizontal effects 2 4, 34 et seq., 3 7, 6 11, 16 12 Hospitalisation 37 17 Host country 22 11 Hostilities 38 11 – definition of 38 28 – direct partipation in 38 22 Household social benefits 27 9 Housing 27 2, 5 Human rights education 29 5, 7 Humanitarian assistance 22 7, 24 30 Humiliation 19 4 ICRC 38 7, 36, 45, 48 ICTY 37 4 Identity – cultural 21 11, 30 7 – disclosure of 40 23 – falsification of documents 8 10 – preservation of 7 9, 8 1, 12 – re-establishment of 8 3, 9 – right to 7 1, 27, 8 3 Illness 24 8 ILO Convention No. 102 26 9 ILO Convention No. 138 D 19, 15 6, 32 2, 12, 17 ILO Convention No. 142 28 19 ILO Convention No. 169 30 3, 10 ILO Convention No. 182 32 12 et seq., 18, 33 5, 34 16, 38 34 Immigration 7 4 Immigration control 10 2, 6, 11 Immigration detention 37 2, 15 Immigration detention centre 37 14, 21 Immigration procedure 12 9 et seq., 13 Immigration proceedings – best interests of the child 37 15

645

Index Impairment – medical 23 3, 8 Implementation – action plans 4 15 – available resources 4 21, 24 – budget 4 27 et seq. – child-friendly review 4 7 – Convention on the Rights of the Child D 33 – coordination system 4 6 – cross-sectional task 4 8 – effective 4 5 – federal States 4 6 – international cooperation 4 25 – legal remedies 4 13 – lobbyism 4 29 – monitoring mechanisms 4 9 – national human rights institutions 4 9 – national strategies 4 15 – NGOs 4 8, 12 – non-retrogression 4 26 – progressive realisation 4 21, 23 – regional and local levels 4 6, 10 Implementation mechanisms – Convention on the Rights of the Child D 43 Imprisoned parents 2 39, 3 9, 17, 9 2, 21 Imprisonment 37 1, 10 et seq. In dubio pro reo 40 26 In vitro fertilisation F 16, 1 16 Inalienable rights 6 4 In-camera principle 40 8, 24 Incest 2 40 Inclusion 2 19, 23 26 – definition of 23 16 – right to 23 8 Inclusive education 23 15 et seq., 28 13 Indigenous children 2 18, 31, 3 13, 7 10, 8 5, 9 7, 9, 12 4, 17 12, 20 8, 21 6, 23 14, 30 1 et seq., 32 7 et seq., 38 4, 42 1, 44-45 21, 25 – definition of 30 3 Indigenous cultures 30 6 Indigenous languages 30 10 Indigenous traditional territories 30 11 Indirect participation in hostilities – definition of 38 29 Individual communication – admissibility 11 5, 13 – author F 8 – entitlement to lodge a complaint F 9 – entitlement to submit a complaint F 7 – inadmissibility ratione personae F 23 – inadmissibility ratione temporis F 13 – manifestly ill-founded F 22 – merits F 25 – written form F 13 Individual communications procedure F 1, 3 et seq., 20, 40, D 7, 43, 43 3, 44-45 35, 54 et seq. – abuse F 23 – child-friendly nature F 4

646

– – – – – –

collective complaints F 10 concurring opinions F 29 course of proceedings F 20 de facto representation F 11 deadline F 19 decision-making by the CRC Committee F 28 – discontinuance F 24 et seq. – dissenting opinions F 29 – exhaustion of domestic remedies F 15 et seq. – follow-up F 30 – friendly settlement F 28 – fundamental guiding principles F 4 – hearing F 25 – interim measures F 27 – legal age F 6 – non-binding views F 29 – permissible object F 5 – prohibition of cumulation F 18 – representation F 8 – suspension F 24 – termination F 24 – third-party submissions F 25 Individualisation – principle of 39 8 Indoctrination – religious 14 9 Infant mortality 24 15, 16, 30 9 Infant mortality rate 6 16 Infanticide 6 6 Infants 12 9, 11, 14 11, 24 12 Information – child-friendly 17 16 – dissemination of 13 10, 17 8 – freedom of 12 39, 13 7, 17 8, 15, 18 – of the whereabouts of family members 9 16 – right to 9 10, 12 7, 40 12, 14 – right to receive 13 8 et seq. – right to seek 13 8 Information exchange 23 18 Information on the whereabouts 37 25 Informed consent 23 17 Informed decision 12 7 Inherent rights 6 4 Inhuman punishment 37 6 Inhuman treatment 22 30, 34 19, 37 6 – prohibition of 20 20, 37 3 Initial report 44-45 3, 11, 15 – guidelines for 44-45 17 Injury 19 4 Innovation – Convention on the Rights of the Child D 28 Inquiry procedure F 1, 3, D 7, 44-45 1 Institutional standards – child-friendly 3 22 Institutionalised care 20 3, 21 14 – complaint mechanism 20 16 – cultural identity 20 17

Index – monitoring 20 14 – precautions 20 14 Instruction – religious 14 13 Inter-American system of human rights – reference to children D 23 Inter-country adoption 35 5, 44-45 23 – measure of last resort 21 13 Interdisciplinary approach 43 3 Interdisciplinary measures 40 2 Intergenerational equity – principle of 24 32 International Bill of Human Rights D 15, Preamble 2 International Convention for the Suppression of the Traffic in Women and Children (1921) D 11 International cooperation Preamble 5, F 9, D 33, 4 23, 25, 11 2 et seq., 17 9, 13, 21 17, 22 20, 23 18, 24 30, 28 27, 32 13, 34 10, 44-45 39 International Criminal Court 6 8, 38 50, 39 4 International criminal tribunals 37 4, 38 50 International humanitarian law 38 2, 8, 17, 49, 39 4 – applicability 38 9 International Union for Child Welfare D 13 Internet 8 13, 9 2, 13 7, 17 1, 28 25, 29 5, 34 2, 15, 42 1, 2 – freedom of expression 13 13 – freedom of information 13 13 Internet access 17 4 Internet chat rooms 15 6 Internet providers 17 16 Interpretation – dynamic 13 17 Interpreter 12 36 – right to 40 22 Interrogation techniques 40 20 Intersectional discrimination 2 10 et seq., 4 16, 23 2, 30 2 Intersex children 24 5, 44-45 37 Intersexual persons 2 26 Inter-State communications procedure F 1 et seq., D 7, 44-45 1, 54 Investigation – in cases of violence 19 11 In-vitro fertilisation 8 4 Islamic headscarves – in school 14 14 Isolation 37 16 Jebb, Eglantyne D 2, 3 Joint General Comments 44-45 49, 51 Judgment – child-friendly version 40 18

Judicial review – deprivation of liberty 37 27 Judiciary – independent and impartial 40 17, 21 Jurisdiction 2 1, 10 2 – custody procedure 11 19 – extraterritorial F 14, 2 2, 4 25, 34 7 Jus cogens 6 4, 37 4, 38 8 Jus in bello 38 7, 9, 18 Jus sanguinis 7 11 Jus soli 7 11, 31 Justiciability 44-45 56 Juvenile courts 40 25 Juvenile delinquency 40 2, 25 Juvenile justice 37 5 Juvenile justice policy 40 2 Juvenile justice system 20 4, 25 2, 37 8, 10, 12, 39 6, 40 1, 18, 44-45 26 – acceleration of proceedings 40 18 – legal counsel 40 16 – legal representation 40 16 – right to appeal 40 21 – social worker 40 16 Juveniles 40 5 Kafalah arrangements F 10, 26, 31, 10 9, 20 2, 21 2, 21, 46-54 10 Key, Ellen D 2 Killings – investigations of 6 11 Kindeswohl (welfare of the child) 3 3, 46-54 16 Knowledge – of one’s descent 7 18 – of one’s origin 13 8 Korczak, Janusz D 2, 8 Labour – forced 32 20 Land grabbing 30 8 Land rights – indigenous 30 11 Landmines – anti-personnel 38 16 Lanzarote Convention (2007) 34 17, 39 13 Last resort – measure of 9 6, 17, 20 8, 13, 21 13, 28 20, 37 10, 25, 34 Law enforcement authorities 40 3 Leave a country – right to 10 6, 14 et seq., 19 Legal guardians 5 2 Legal personality 7 4 Legal remedies 12 26 Legal representation 12 22, 25 Legal representative 22 15

647

Index Legality – principle of 37 9, 28 Leisure – right to 31 1, 3, 9, 37 24 Lex specialis principle 11 4, 12 38, 34 1, 38 3, 31, 40 12 Liberty – deprivation of 37 1 Life – beginning of Preamble 5, 6 5 – right to 6 1, 23 7, 26 Life imprisonment 40 6 – possibility of release 37 8, 40 6 – prohibition of 37 8 Life-survival-development continuum 6 2 Light work 32 3, 16, 17 Linguistic rights 30 9 Lis pendens F 18 List of Issues Prior to Reporting (LOIPR) 44-45 34 Literacy – media 17 8 – online 17 10 Living – standard of adequate 22 29 Lobbying 15 8, 44-45 12, 53 Lobbyism 4 29 Local levels 4 6, 29 3 Mainstreaming 23 24 Mainstreaming measures 2 4, 4 8 Malnutrition 6 16, 23, 24 18, 33, 30 9 Maltreatment 19 15 – in family settings 19 2 Margin of appreciation/discretion D 42, F 26, 1 17, 3 11, 22, 25, 4 4, 24, 7 6, 8 5, 9 18, 21, 11 5, 12 2, 5, 21, 13 14, 16 12, 17 9, 19 6, 20 20, 22 9, 20, 23 4, 10, 24 23, 25 4, 26 6, 27 8, 28 7, 10, 29 12, 32 9, 34 6, 35 6, 36 3, 38 23, 28, 39 8, 40 26, 29, 41 3 Marriage 12 12 – early 28 21 – forced 2 10, 33, 6 20, 24 26, 34 13, 35 1, 44-45 49, 46-54 12 – minimum age 1 4, 44-45 20 – of children 1 4, 3 18, 10 3 – of convenience 5 16 – same-sex 5 16 Mass media 16 4, 17 2 et seq., 7, 13 – codes of conduct 17 13 – diversity of 17 9 Massive influx 22 17 Maturity F 10 et seq., 19, 12 14, 21 9, 40 5, 15, 36 – religious 14 12 Measure of last resort 28 20, 37 10, 25, 34

648

Media 13 9 – child-specific 13 4 – digital 17 5 – mass 17 2 et seq., 7, 13 – new 17 2 – offline 17 4 – online 17 4 – social 17 7 – transfer of knowledge about 17 10 Media influence 17 10 Media literacy 17 8 Media monitoring institutions 17 13 Media participation 17 8 Mediated discrimination 2 8, 11, 20, 33, 35, 38, 7 8, 23 26 Medical assistance 24 17 Medical experiments 36 2 Medical treatment 12 12, 43, 24 34 – informed consent 23 17, 24 5 Medicine – alternative 24 4 – marketing of 24 4 – traditional 24 4 Migrant children 2 10, 16, 22, 32, 3 16, 21, 4 16, 6 13, 12 9, 20 4, 22 9, 24 2, 27 16, 28 14, 32 9, 44-45 26, 49 Migrant workers 10 17 Migration 27 1 Migration policy 3 21 Military schools 38 36 et seq. Minimum age 7 4, 17, 12 9 – criminal responsibility 1 5, 40 26, 33 – for direct participation in hostilities 38 22, 24, 26 – for employment 32 2, 10, 16, 19, 21 – for marriage 1 4, 44-45 20 – for recruitment in the armed forces 38 6, 32, 34 – of criminal responsibility 40 1 – right to postulate F 12 Minority – collective 30 5 – definition of 30 4 – ethnic 30 4 – individual 30 5 Minority protection 30 5 Misogyny 29 7 Monitoring – State-reporting procedure 44-45 2 Monitoring mechanism 44-45 3, 5, 14 – UN human rights bodies 44-45 52 Mortality – infant and child 24 15 et seq., 33, 30 9 – youth 24 16 Moscow Declaration of the Rights of the Child (1918) D 3

Index Mother – genetic 7 21 – gestational 7 21 – intended 7 24 – single 9 18, 21 10 – surrogate 7 21, 24 Multidisciplinary approach 1 11, 9 6, 25 6 Multi-lingual education 28 21 Multi-lingual treaty 46-54 15 Name – right to a 7 2, 9, 30 Narcotic drugs 33 1, 4, 6 – definition of 33 2 National action plans 4 15 et seq., 17 8, 23 13, 26 6, 29 3, 33 4, 34 7, 35 6, 38 27 National human rights institutions F 3, 8, 10, 28, 4 9, 10, 23 13, 44-45 19, 36 National security 13 14 National strategies 4 15 et seq., 32 9 National values 29 6 Nationality F 6, 16, 2 1, 21 15, 22 11, 28 14, 30 4 – right to a 7 2, 11, 26, 30 Natural disasters 39 5 Naturalisation 22 11 Ne bis in idem 40 10, 34 Neglect 9 5 et seq., 19 4 – physical 9 5 – psychological 9 5 Newborns 21 21 NGO F 3, 8, 10, 4 8, 12, 44-45 5, 18, 36, 43 et seq., 46 – Child Rights Connect D 7 Nomadic populations 7 5 Non-derogable rights 6 4, 14 1 Non-discrimination – criterion of comparison 2 8 – principle of 2 6, 6 18, 7 8, 17 6 Non-international armed conflict 38 2, 11 Non-marital children 2 21, 32, 40, 5 15, 9 7, 12, 10 21, 18 4, 13 Non-marital father 7 16 Non-refoulement – principle of 6 13, 19 12, 22 25, 24 28, 37 6 Non-State actors F 14, 4 11, 6 11, 21, 9 3, 13 4, 15 5, 16 12, 18 10, 19 12, 20 4, 22 3, 25, 25 3, 30 8, 32 14, 37 4, 38 19, 25 Nuclear family 5 3, 6 Nulla poena, nullum crimen sine lege 40 10 Nutrition 24 17, 18, 27 2, 5 – deprivation of liberty 37 2 Obesity 24 18, 19 Obligation of conduct F 5, 7, 9, 4 23, 28 27, 38 21, 44-45 56

Obligation of result F 5, 7, 9, 4 23, 18 4, 38 21, 39 7 Official translation – Convention on the Rights of the Child 46-54 16 OHCHR F 21, 44-45 10 Oligation to endeavour 38 39 Online privacy 16 4 Open treaty 46-54 2 Opinions – freedom to express 13 5 – freedom to form 13 5 – freedom to hold 13 5 Optional Protocols to the CRC – adoption D 7 Origin – knowlede of one‘s 13 8 Orphanage 20 19, 21 14, 37 31 Orphans 32 9, 38 43 Overlaps – of children’s rights D 24, 6 16, 13 3, 15 1 – of human rights 3 22, 38 46 Ovus donation 7 21 Palermo Protocol (2000) 35 8, 10 Palestine D 10, 46-54 2 Paramilitary groups 38 19, 25 Parent 5 1 et seq., 10 18, 12 7, 40 19, 20 – abandoned 11 9 et seq., 12, 14, 16, 23 – abducting 11 1, 8, 23 – adoptive 10 9, 21 4, 6, 21 – best interests of the child 3 8, 19 – biological 7 17, 21 4, 21 – common responsibilities 18 1 – definition of 5 7 – foster 5 4, 15, 10 9, 12 10 – genetic 5 7, 10 7 – gestational 7 17 – imprisoned 2 39, 3 9, 17, 9 2, 21, 20 1, 44-45 23 – intentional 5 7 – juvenile justice system 40 8 – key role D 37, Preamble 4 – rehabilitation programmes 39 12 – single 3 20, 18 10 – social 5 7, 10 7 – unmarried 18 5 – upbringing of children 5 8 – working 18 10 Parental authority 17 15, 20 5 Parental care 9 4 – shared 18 4 Parental child abduction 11 1, 4 et seq., 35 4 Parental guidance 12 41, 15 9, 16 5 – in religious matters 14 11 Parental leave 18 8, 14 Parental maintenance 11 3, 27 11

649

Index Parental responsibilities 5 9, 13, 6 19, 9 22, 27 6, 10, 11 – allocation 18 3 – child-rearing 18 8 – joint 18 1, 2, 12, 13 Parental rights 3 19, 5 2, 14 1, 19, 15 3, 19 13 – education 28 12 – in religious upbringing 14 10 Parent-child relationship 20 19, 21 2, 4 Parenthood – fragmentation of 5 6 et seq. – pluralisation of 5 6 Parenting courses 19 10 Parenting function 13 6 Parenting model 5 12 Parent-State-relationship 3 19, 6 19 Parity caregiver model 9 12, 18 5 Participation in cultural and artistic life – right to 31 6 et seq., 10 Participation rights D 3, 28, 9 10, 20, 11 20, 12 1, 3, 40, 13 2, 15 1, 16 1, 4, 23 16, 28 11, 23, 31 7, 39 12 – education 28 23 Passport 10 15, 19 Patchwork families 5 5 Peace education 29 7 Peacebuilding 38 4 Peacetime 38 20, 33 Peacetime international law 38 2 Periodic reporting 44-45 11 Perpetrator 39 6 Persecution 19 12 – causes of 22 3 – child-specific forms of 22 4 – fear of 22 14 Personal liberty – right to 37 9 Personal scope – Convention on the Rights of the Child 1 1 et seq. Personality – development of 29 4 Physical education – mixed-sex 14 14 Physical punishment 3 18, 19 1 Placement 25 1 et seq., 37 16 et seq. – compulsory 37 1 – periodic review 25 3 et seq., 7, 40 6 Placement process 20 20 Play – right to 17 11, 31 1, 4, 9, 37 24, 44-45 25 Playgrounds 31 8 Pocket money 19 8

650

Polish draft – Convention on the Rights of the Child D 8, 36, 4 21, 25, 12 12, 38 12, 29 Political suffrage 12 35 Political voting rights 12 35, 13 10 Polygamy 2 24, 5 3 et seq., 14, 18 2 Pornography 17 14, 22 – forced 34 4, 14 et seq. Positive obligations F 14, 2 36, 6 11, 9 13, 12 6, 13 4, 7, 14 4, 9, 19, 15 5, 16 12, 17 17, 19 12, 14, 23 14, 28 12, 29 2, 30 5, 7, 31 7, 32 10, 33 4, 34 6, 19, 35 6 Post-conflict process 38 4 Poverty 4 28, 6 3, 16, 18, 9 5, 18, 20 3, 21 4, 20, 23 15, 18, 24 25, 27 5, 7, 9, 28 14, 29 3, 30 2, 9, 32 3, 4, 9, 34 13 Poverty spiral 32 5 Poverty-alleviation strategies 27 9 Preamble – Interpretive tool Preamble 1 Pregnancy 24 9, 28 21, 33 3, 34 12 Preimplantation diagnostic 6 6 Pre-school education 28 7 Press – freedom of 17 19 Presumption of innocence 40 11 Pre-trial detention 37 2, 21, 27, 31 Pre-trial stage 40 15 Preventive detention 37 31 Preventive measures 6 11 Primary education 28 29 – compulsory 28 9, 12 – definition of 28 10 – free of charge 28 9, 11 Priority clause 38 40 et seq. Prison 37 21 Privacy – online 16 4 – protection of 16 2, 5, 13 – right to 7 18, 23, 12 5, 16 3, 17 14, 37 24, 40 23 – unlawful interference 16 10 Private educational institutions 29 9 Private life – protection of 16 5 – right to a 7 27, 8 13, 17 20 Privatisation 4 12 Procedural fairness – asylum procedure 22 9 Procedural rights 40 32 Programmatic standard 23 4 et seq. Progressive implementation – Convention on the Rights of the Child D 33 Progressive realisation F 5, 4 21, 23, 24 14

Index Prohibition of discrimination – asymmetrical approach 2 7 Promotion clause 42 3 Proportionality – principle of 2 15, 19, 6 7, 8 11, 9 6, 10 16, 12 14, 13 14 et seq., 17 15, 18 6, 25 5, 37 9, 15, 40 31 Prosecuting authority 40 11 Prostitution 22 4 – forced 34 4, 12 Psychiatric clinics 25 2 Psychiatric hospital 37 16, 19, 31 Psychostimulants 24 3, 25 2 Psychotropic substances 33 1, 4, 6 Public defender 37 30 Public hearing 12 22, 40 24 Public morality 13 14 Public order 10 15, 13 14 Public security 40 31 Punishment 40 10 – corporal 19 1, 3, 14 et seq. – physical 19 1 Quasi-judicial tasks 43 3 Racial discrimination 14 19 Racial incitement 13 12 Racism 2 20, 36, 29 3, 7, 30 13 Radio broadcasting 17 19 Raison d’être – Convention on the Rights of the Child D 28, 31 Rana Plaza disaster 32 1 Rape 34 13, 16, 19, 38 43 Ratification – Convention on the Rights of the Child D 10, 46-54 2 Reciprocity – principle of 38 18, 46-54 7 Reconciliation 40 1 Recovery 23 15, 32 9, 34 12, 35 1, 6, 36 3, 38 5, 39 2, 3, 5, 8, 9 Recreation – right to express views 12 38 Recreational activities – right to 31 1, 4 Recruitment – minimum age 38 6 – to armed forces 38 34 et seq., 37, 42 Recruitment process 38 40 Refoulement – prohibition of 6 13, 19 12, 22 25, 24 28, 37 6 Refugee – definition of 22 3 Refugee accomodation facilities 22 22

Refugee children 2 1, 32, 3 16, 6 19, 7 8, 10 7, 11, 20 20, 22 20, 24 2 et seq., 12, 25 2, 28 14, 32 9, 44-45 26 – armed conflict 38 5 – collective accomodation 31 2, 4 – European Union law 22 27 et seq. – identification 22 11 – prohibition of discrimination 22 9 – registration 22 11 Refugee status 19 12, 20 2, 22 2, 4 et seq. – determination process 22 17 Refugees' camps 37 21 Regional human rights treaties – with reference to children D 16 Regional levels 4 6, 29 3 Registration – right to 7 26 – upon birth 7 2, 6, 31, 8 5 Regression – Convention on the Rights of the Child D 27 Rehabilitation 4 13, 6 12, 11 5, 23 15, 24 10, 38 5, 39 3, 13 Rehabilitation services 22 12 Reintegration 19 11, 32 9, 34 12, 35 1, 36 3, 37 10, 21, 26, 38 5, 39 2 et seq., 5, 8, 40 1, 5, 31 – familial 20 9 et seq. Relationships – homosexual 5 16 Relativism – cultural 46-54 13 Religion – free choice of 14 7 et seq., 12 – freedom of 14 1, 37 24, 46-54 11 Religious diversity 14 16 Religious education 14 9 – in school 14 3 Religious indoctrination 14 9 Religious institution 14 8 Religious instruction 14 13 Religious maturity 14 12 Religious minorities 14 4 Religious symbols – in school 14 13 et seq. Remedial measures 39 6 Remedial provision 39 2 Removal 22 20 Renditions – extraordinary 9 23 Reparations 37 5, 39 9 Reporting guidelines – OPAC and OPSC 44-45 17 Reporting State 44-45 7 Representation – legal 12 22 Reproductive health 12 33, 24 25, 44-45 24

651

Index Reputation – protection of 16 2, 9 Reputation of others 13 12 Res judicata F 18 Reservations D 43, 6 9, 30 5, 40 21, 46-54 6 – compatibility with the object and purpose of the treaty 46-54 7, 9 – Convention on the Rights of the Child 2 22 – First Optional Protocol to the CRC (OPAC) 46-54 14 – integrity of the treaty 46-54 6 – of a general nature 46-54 12 – Second Optional Protocol to the CRC (OPSC) 46-54 14 – Sharia law 46-54 12, 14 – withdrawal 4 2, 46-54 13 Resilience 40 27 Resources – available 4 20 et seq., 6 20, 11 5, 23 4, 11, 24 14, 26 7, 27 8 Rest – right to 31 2, 9 Restorative justice model 40 1 Restorative measures 11 5, 39 6 Restriction clause 13 11, 14 6, 13, 17, 15 8 Retroactivity – criminal laws 40 10 Retrogression – prohibition of 4 26, 24 14, 26 7 Return procedure – due process safeguards 22 16 Reunification – familial 10 5 Reverse discrimination 2 18 Right to be heard 12 2, 8 et seq. – administrative proceedings 12 16 et seq., 19, 30 – adoption proceedings 12 20, 28 – age and maturity 12 14 – age-appropriate advise 12 15 – children as victims and witnesses 12 30 – civil proceedings 12 28 – criminal proceedings 12 29 – imposition of sanctions 12 18 – judicial proceedings 12 17, 19 – pre-trial stage 12 17 Right to be informed 12 18 Right to defence 12 24 Right to enter a country 10 6, 14, 19 Right to express views 12 5 et seq. – capability of children 12 6, 9 – guiding principle 12 1 – Medical treatment 12 32 et seq. Right to information 12 7 Right to leave a country 10 6, 14 et seq., 19 Right to life – children with disabilities 6 12

652

Right to remain silent 12 8, 16 Rights-holder D 1, 14, 23, 3 3, 5 9, 13 6, 30 6 Riyadh Guidelines (1990) 4 9, 40 35 Roma children 2 18, 31, 20 8, 21 8, 24 34, 27 16, 28 11, 29 et seq., 29 3, 30 5, 12, 14, 46-54 9 Rule of law 29 5 Rural areas 2 37, 3 17, 4 16, 28, 7 5, 18 10, 24 12, 27 9, 28 14, 30 9 et seq., 32 4, 7 Sabotage – acts of 38 29 et seq. Sale of children 34 4, 10, 35 1 et seq. Same-sex couples 21 22 Same-sex marriage 5 16 Sanitation 24 17, 21, 27 5, 9 – deprivation of liberty 37 2 Save the Children Foundation D 2, 12 Saving clause 41 1, 4 Scholarships 28 5, 18 School – religious education 14 3 School attendance – irregular 28 21 School children 13 15 School decisions – right to express views 12 34 School discipline 28 24 School education 31 2, 32 10 – 4-A scheme 28 3 – equal opportunies 28 5 – Internet 17 23, 29 5 – three-track approach 28 3 School environment 29 3 School meals 24 19 School non-attendance 28 20 Schools – corporal punishment 19 1 – religious symbols 14 13 Seaborne refugees 22 25 Second Optional Protocol to the CRC (OPSC) D 6, 34 4, 9 et seq., 16, 35 2, 39 1, 46-54 14 – reporting guidelines 44-45 17 Secondary education 28 15, 17 Security – national 10 15 et seq., 13 14 Security Council 38 51 Segregation 23 1, 30 11 – children with disabilities 23 1 – in education 28 11, 29 Self-executing provision D 32, 19 5 Self-incrimination – right against 40 20 Separation 9 16, 18 4 – alternatives to 9 18

Index – best interests of the child 9 5 – consent to 9 4 – familial 9 2 et seq., 10 1 – inter-State dimension 10 1, 4 – measure of last resort 9 6, 17 – right to maintain contact 9 11 – transitory nature 9 6 Separation grounds 9 5 Separation procedure – competent authority 9 8 – multidisciplinary approach 9 6, 9 Servitude 32 16, 20, 35 3, 9 Sex education 28 21 Sex tourism 34 2, 7, 9, 12 et seq. Sexting 34 5 Sexual abuse 34 1, 6, 37 6 – child victims 34 7 – definition of 34 2 – in church 34 8 – protection against 34 16 Sexual activity – consent to 34 2 et seq. – lawful 34 3 – unlawful 34 3 Sexual assault 34 19 Sexual exploitation 17 22, 34 1, 6 – combat of (European Union law) 34 18 – definition of 34 2 – protection against 34 16 Sexual harassment 34 2 Sexual health 13 9 Sexual orientation 2 27, 32, 40 Sexual violence 34 13 Shadow reports 44-45 37 – State reporting procedure 44-45 52 Sharia law 46-54 10, 12 Siblings 9 14, 20 5, 10 et seq. Signature – Convention on the Rights of the Child 46-54 2 Simplified State reporting procedure 44-45 34 Single mother 9 18, 21 10 Single parent 3 20, 18 10 Slavery 32 8, 16, 18, 20, 34 19, 35 3, 9 Slavery-like practices 35 3 Slavery-like work 32 8, 20 Smartphone 17 13, 31 8 Social assistance system 20 8 Social barriers 23 12 Social insurance 26 3 Social media 13 13, 16 8, 17 7, 34 15, 42 2 Social security – indirect child’s right 26 2, 5 – right to 26 1, 8, 10 Social security systems 26 3 et seq.

Social worker 40 16, 36 Soft law 4 25, 23 23, 29 10, 40 36 Soldiers – child 38 1 Solitary confinement 37 6, 25 Special care – request to 23 10 – right to 23 9 Special Court for Sierra Leone 38 50 Sperm donation 7 20 Standard of living – adequate 26 8, 27 1, 4, 15, 30 9 Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (1993) 23 23 State reporting procedure 44-45 1 – civil society organisations 44-45 37 et seq. – expert opinions 44-45 36 – follow-up 44-45 14, 42 – harmonised guidelines 44-45 31 et seq. – list of issues 44-45 6 – List of Issues Prior to Reporting (LOIPR) 44-45 34 – lobbying 44-45 53 – participation of children 44-45 38 – practice 44-45 57 – shadow reports 44-45 37, 52 – simplified 44-45 34 – weaknesses 44-45 53 – working group 44-45 36 State reports – backlog 43 6, 44-45 57 – clusters 44-45 18, 29 et seq., 32 et seq. – guidelines for 44-45 9, 16 Stateless children 2 1 Statelessness 7 3, 12, 30 et seq., 21 15 State-reporting procedure 44-45 3 – constructive dialogue 44-45 2, 8, 39, 52 – monitoring 44-45 2 – self-accountability 44-45 2 States Parties – margin of appreciation/discretion D 42 States Parties to the CRC D 4, 10, 44-45 9 Stepfather 19 14 Stereotypes 2 24, 23 7, 29 7, 34 10 – gender 18 2 Sterilisation 23 15, 17, 24 3 Stigmatisation 40 18, 23 et seq., 28 Straight-18 approach 38 6 Street situations – children in 2 10 et seq., 32, 3 19 et seq., 5 2, 6 10, 12, 8 5, 15 7, 16 7, 9, 20 4, 11, 26 6, 27 5, 9, 31 3, 32 9, 33 4, 34 13, 44-45 26, 49 Street workers 20 11 Student councils 12 34, 15 3 Study grants 28 23

653

Index Subsequent periodic reports 44-45 11, 15, 29 – guidelines for 44-45 17 Subsidiarity 36 1 – principle of F 17 Subsidiary protection 22 5, 27 Suicide 6 17 Suicide prevention 44-45 21 Surrogacy agreement 7 21, 29, 8 4 Surrogate motherhood 7 21 Survival – right to 6 1, 23 7 Systemic problems 44-45 52 Teacher-student relationship 28 24 Teaching materials 29 3 Teleological interpretation 1 8, 10 13, 38 35 Television 17 13 Termination – Convention on the Rights of the Child 46-54 5 Terrorism 40 10 Terrorist 39 3 – child 38 1 Terrorist attacks 17 24 Terrorist organisations 17 24, 38 1, 19, 30 Third Optional Protocol to the CRC (OPIC) F 1, 20, D 7, 42 3, 44-45 1, 3, 35, 56 – dissemination of F 19 Third-party effect D 46, 2 34 et seq., 5 17, 6 21, 17 15, 28 25 Thought – freedom of 14 1 Tobacco 13 14, 33 2, 3 Tolerance 17 9, 28 12, 29 7, 11 Torture – definition of 37 4 – prohibition of 37 1, 3, 5, 25, 31, 40 20 – threats of 37 31 Tracing of family members 22 21 Trade liberalisation 32 15 Trade protectionism 32 15 Trade union 15 6, 10 – right to join a 15 2 Traditional harmful practices 24 26 et seq. Traffic accidents 6 14 Trafficking – in children 7 4, 29, 11 4, 19 12, 21 13, 22 4, 35 1, 3, 6, 8 et seq. – in drugs 32 18, 33 5 – in human beings 35 3 – protection against (European Union law) 35 11 – victims of 35 10 Training of professionals 19 10 Transgender 2 26

654

Transit zones 22 16 Translator 37 29 – asylum procedure 22 19 Transnational corporations 2 3, 4 11, 32 13 Transnational dissemination – of online content 17 22 Trauma 11 1, 19 3, 22 17, 29 6, 38 43, 39 9 Treaty-based committees 43 18 Treaty-specific guidelines 44-45 17 et seq., 30 Treaty-specific report 44-45 31 Tripartite typology – of human rights 4 22, 24 4 Truancy 28 20 Ultra vires action 1 9, 4 4, 7 18, 38 19, 40 31, 43 9 Umbrella clause 33 5, 36 4 Umbrella provision 2 1, 3 1, 19, 4 1, 30, 5 1 Umbrella right 16 2 UN budget 43 17 UN Commission on Human Rights D 8 UN Guidelines for the Alternative Care of Children (2009) 3 16, 20 18, 21 18 UN Guiding Principles on Business and Human Rights (2011) 17 16 UN Human Rights Council F 5 UN specialised agencies 43 11, 44-45 7, 36 UN Sustainable Development Goals 19 13, 26 4, 28 5, 32 18 Unaccompanied minors F 23, 8 8, 10 11, 17, 12 25, 36, 20 2, 6, 20, 22 5 et seq., 13, 14, 20, 28 11, 29 3, 6, 35 5, 37 14, 16, 30, 35 – adequate standard of living 22 29 – qualified legal representative 22 15 Unborn child 3 10, 6 5 Unborn life 1 7 et seq., 16 et seq. Undernutrition 24 18 UNESCO D 8, 23 18, 28 19, 44-45 36 UNESCO Convention against Discrimination in Education (1960) 2 25, 29 11 UNHCR 22 6, 12, 14, 23 – guidelines 22 26 UNICEF D 8, 14, 4 25, 6 3, 22 12, 23, 23 18, 24 30, 38 1, 43 11, 44-45 7, 18, 36, 39 United Nations Charter D 14 United States of America D 4, 10, 2 1, 6 9, 7 17, 15 9, 21 12, 38 22, 44-45 33 Universal Declaration of Human Rights (1948) D 14 Universal human rights treaties – with reference to children D 15 Universities 28 18 Upbringing – non-violent 19 4 Upper age limit 38 6, 15

Index Urban areas 2 37, 4 16, 28, 31 5 Urgent actions 44-45 43 Use of force – prohibition of 38 9 Vaccination 6 16, 24 4, 15 Venice Commission – Council of Europe 4 10, 31 Vienna Convention on the Law of Treaties (1969) F 9, Preamble 1, 1 8, 4 6, 38 18, 44-45 55, 46-54 1, 3 et seq., 14 et seq. Vienna World Conference on Human Rights (1993) D 35, 29 5 Views of the CRC Committee – principle of good faith F 29 Violence 44-45 22, 41, 44 – against children 19 1, 3, 13 – armed conflict 38 4 – domestic 19 14 – freedom from 19 5 – gender-based 19 12, 38 4 – in armed conflict 35 8 – investigation 19 11 – mental 19 4 – physical 19 4 – prevention of 19 13 – sexual 34 13 Virginity testing 6 20, 16 13, 24 26 Visitation rights F 31, 9 13 Vocational education 28 16 Vocational training 32 3, 44-45 25 Voting rights – political 12 35, 13 10 Vulnerable groups – of children 34 12

War 38 1 – acts of 6 8 War crimes 38 44, 50, 39 4, 40 5 Warming – global 24 31 Water – safe 24 17, 20, 27 5, 9, 31 5 Welfarist model 40 1 Whereabouts – family members 9 16 – information on 37 25 WHO D 8, 14 15, 19 9, 22 12, 23 18, 24 1, 10, 22, 29 et seq., 35, 33 2 et seq., 44-45 36 Withdrawal – Convention on the Rights of the Child 46-54 5 Witness protection 35 6, 10 Witnesses – cross-examination of 40 20 – juvenile 40 37 Work – age-appropriate 32 3 – beneficial 32 3 – hazardous 32 7, 10 – light 32 3, 16 et seq. – slavery-like 32 8, 20 Working conditions 31 3, 32 11 Working hours 32 11 Workplace flexibility 18 8, 11 World Bank 24 20 Xenophobia 2 36, 29 7 Young adults 40 5, 27 Youth welfare institution 37 16

655