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The UN Convention on the Rights of the Child - A Commentary edited by Tobin, John

Introduction: The Foundation for Children’s Rights

John Tobin

From: The UN Convention on the Rights of the Child: A Commentary

Edited By: John Tobin

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 30 March 2020

Subject(s):
Human rights

(p. 1) Introduction

The Foundation for Children’s Rights

The UN Convention on the Rights of the Child (‘CRC’, ‘the Convention’) was adopted by the UN General Assembly on 20 November 1989 and came into force on 2 September 1990. It remains the most widely ratified human rights treaty and provides an extraordinary catalogue of rights for children. Its impact has been extensive. Its influence can be seen in the content of national constitutions,1 judicial decision-making,2 the work of international and national institutions,3 law reform,4 policy development,5 (p. 2) advocacy efforts,6 service delivery, and research concerning children across a multitude of disciplines.7 Whether it be in a resolution of the Security Council or on the wall of a maternal health clinic, the Convention has been found to be deserving of a place of significance in a remarkably vast range of matters concerning children at the local, national, regional, and international level.

This is to not to suggest that the Convention is without its detractors, has necessarily transformed the lives of all children, or is necessarily known to every individual who works with/or on matters concerning children. It is after all an international human rights treaty and like its normative siblings, it harbours progressive ambitions in areas ranging from health and education to juvenile justice and child protection, the realization of which will be gradual and time consuming. That said, it has already contributed to ‘a qualitative transformation’ in the status of children as the holders of rights8—an idea that must now surely be taken seriously.9 It also continues to bear its imprint on matters concerning children and provides the foundation for discussions about children’s rights.

These discussions can take all manner of directions—philosophical (should children have rights?);10 strategic (what is the best way to persuade others to recognize children’s rights?);11 practical (how should we implement children’s rights);12 and legal (what is the meaning of the rights for children under the Convention?). It is this last discussion that is the focus of this Commentary. Although the interpretation of human rights treaties has attracted significant attention, this is never an easy task and the Convention provides no exception. It contains no definitions section and many of its terms are expressed in (p. 3) broad and ambiguous terms. Thus, the aim of the chapter is threefold. First, it offers a brief history of the Convention; second, it outlines the scope of the commentary; and third, it details an interpretative methodology to guide the interpretation of the articles in the Convention.

The central argument is that the broad formulation of the rights under the Convention invites a lively and dynamic discussion about the meaning of these rights. Such discussions are to be encouraged and can be seen in the debates generated by the work of the Committee on Rights of the Child (‘CRC Committee’, ‘the Committee’) in its discussion days, the process for the drafting of its general comments and the responses to its concluding observations. That said, there is still a need to remain conscious that the ambiguity of the Convention’s provisions provides a constant opportunity to align the meaning of these provisions with the values and preferences of the individual interpreter. Such ‘result driven jurisprudence’13 may well be persuasive among those who share similar expectations with respect to the meaning of the Convention, but its influence is unlikely to extend much further.

Thus, it is suggested that when interpreting the Convention, consideration should be given to adopting an approach that is likely to produce the most persuasive meaning.14 Within the context of international law, as a minimum this requires an application of the accepted conventions regarding the interpretation of international human rights treaties especially the general rule of interpretation as set out in article 31 of the Vienna Convention on the Law of Treaties.15 It is further suggested, however, that an application of the general rule will not produce the meaning for each article under the Convention. As such, the persuasiveness of a meaning being offered for any article under the Convention will be enhanced if it is not only principled, but also practical, coherent and context sensitive.

I.  The Adoption of the Convention

A.  The 1924 Declaration on the Rights of the Child

The Convention is not the first international instrument to deal with children’s rights.16 On 26 September 1924 the Fifth Assembly of the League of Nations adopted the Declaration on the Rights of the Child, also known as the ‘Geneva Declaration’. This instrument was largely based on a draft prepared by Eglantyne Jebb, the founder of Save the Children UK, who in the aftermath of the experiences of children during World War I saw a need to consolidate international efforts to protect children from harm.17 Its (p. 4) provisions reflect a welfare approach with an emphasis on the provision of assistance to children in need. For example, article 1 requires that ‘the child must be given the means requisite for its normal development’ and article 2 provides that ‘the child who is hungry must be fed, the child that is sick must be helped, the child that is backward must be helped, the delinquent child must be reclaimed and the orphan and waif must be sheltered and succoured’. Indeed, the Geneva Declaration contains no provisions that could be considered civil and political rights and children were merely to be seen but not heard under this instrument. Despite this welfarist orientation, according to the historian of the UN Children’s Fund (‘UNICEF’) the adoption of the Declaration marked ‘the formal establishment of an international movement for children’s rights’.18 Although this claim remains open to question, ‘the Declaration provided the inspiration for much that was to follow’19 in terms of international efforts to protect children.

B.  The 1959 Declaration on the Rights of the Child

The period following World War II represented a watershed in the development of international human rights law, first with the adoption of the Universal Declaration of Human Rights and then the International Covenants. Children are certainly mentioned in these instruments— again largely through a welfare lens with an emphasis on the obligation of states to provide children with special care and protection.20 However, the most significant milestone for children’s rights during this post-war period came with the adoption by the UN General Assembly of the Declaration on the Rights of the Child on 20 November 1959.21 This instrument, which traces its origins to debates within the Social Commission of the Economic and Social Council (‘ECOSOC’) from as early as 1946,22 was intended to build on the Geneva Declaration. In 1947 the Social Commission recommended that ‘even though great weight should be given to the Geneva Declaration’, the proposed Charter should nevertheless include additional principles which ‘would transform the document into a United Nations Charter of the Rights of the Child embodying the main features of the newer conception of child welfare’.23

Although the adoption of the 1959 Declaration was considered to be ground breaking in several respects,24 its greatest significance lay in the fact that it ‘gave a broad imprimatur to the concept of children’s rights per se’.25 That said, it still failed to include any traditional civil and political rights for children beyond protection against non-discrimination and it maintained a focus on welfare concerns with an emphasis on the protection rather than the empowerment of children.26 As a consequence, there remained a reluctance for major international agencies working with children to move beyond a welfare approach.27 (p. 5) There was also a degree of institutional scepticism about the value of the 1959 Declaration. This is reflected in the comments of the Director of the UN’s Division on Human Rights at the time who wrote that he ‘had some reservations about the wisdom of adopting such a declaration … I also thought there was something wrong with our priorities. It was easier to draft a declaration on the rights of children than to devise practical measures for the protection of human rights’.28

C.  The 1989 Convention on the Rights of the Child

Leaping forward another two decades, 1979 was proclaimed by the UN General Assembly as the International Year of the Child in recognition of the twentieth anniversary of the adoption of the 1959 Declaration.29 In preparation for this event, in 1978 the Polish government submitted a draft Convention on the Rights of the Child to the UN Commission on Human Rights.30 The Commission on Human Rights agreed to establish an open-ended working group to discuss the idea of a convention for children.31 There was an expectation that the Polish draft, which was largely based on the 1959 Declaration, would be readily accepted by states.32 Indeed a resolution from UN General Assembly requested the Commission on Human Rights ‘to organize its work on the draft on the convention on the rights of the child … so that the draft of the convention may be ready for adoption if possible during the International Year of the Child’.33 History shows, however, that this expectation was never met and the drafting process endured ten long years of negotiation and compromise before the Convention was finally adopted by the Working Group in 1989.34

In his account of the drafting process, Adam Lopatka, the Chairman/Rapporteur of the Working Group, has explained that a range of challenges frustrated this process: the tension between the USA and former Soviet Union; tactics of obstruction from some countries; and the submission of a large number of proposals; which all consumed considerable drafting time.35 Nigel Cantwell, the coordinator and spokesperson for the Non-Governmental Organization (‘NGO’) Ad Hoc Group involved in the drafting of the Convention has also explained that the response to the original proposal ‘was hardly a wave of unbounded enthusiasm’.36 Some states complained that the ‘wording of the draft was unsuitable for a treaty and overlooked many rights that needed to be incorporated’.37 There was also a reluctance on the part of NGOs to embrace the idea of the Convention.38 Indeed UNICEF, which now champions the Convention, was initially sceptical of the utility of an international instrument dealing with children’s (p. 6) rights.39 This attitude shifted part way through the drafting process when its Executive Director, James Grant, recognized that the Convention would be so important and influential that UNICEF had to be actively involved in the drafting process.40 He subsequently committed UNICEF both physically and financially to resolving the draft of the Convention before 1989, the thirtieth anniversary of the 1959 Declaration.41 Other international organizations such as the International Labour Organization (‘ILO’), the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) and the International Committee of the Red Cross (‘ICRC’) also became more actively involved in contributing to the drafting process as did NGOs under the umbrella of the NGO Group.42

The input of these non-state actors although uncoordinated and unproductive in the early years of drafting,43 ‘had unprecedented impact’ on the final text of the Convention.44 Ultimately, however, as is the case with any international treaty, it was the states involved in the Working Group that resolved and adopted the actual text of the Convention. Significantly, the Working Group adopted all provisions on the basis of consensus, which meant that any state effectively had the capacity to veto a proposal.45 Unsurprisingly there were issues on which states disagreed vehemently—the definition of childhood being one of the most contentious46—and another being the minimum age for recruitment and participation in armed conflict.47 However, given that any state had the capacity to effectively derail agreement on any provision, it is remarkable that consensus was actually achieved to enable the Working Group to adopt a draft Convention even after ten years.

The compromises required to arrive at this point were not without consequences and concern was expressed that the ‘standards set in some articles in the draft convention were too low’.48 The counterpoint made at the time, however, was that this was necessary to enable ‘States with limited resources to ratify the Convention’.49 Moreover, the inclusion of article 41 serves as a safeguard by providing that ‘[n]othing 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 … the law of a State party … or … International law in force for that State’. As such the Convention, although ambitious in its aspirations for children, actually represents the minimum standards agreed to by states with respect to the treatment of children within their jurisdiction.

On 20 November 1989 the UN General Assembly adopted the Convention and opened it for signature. Under article 49, twenty ratifications were required before the Convention could enter into force. This was achieved in a staggeringly short period of time largely due to the concerted effort of James Grant, the Executive Director of UNICEF, who lobbied every state in the world to ratify the Convention.50 The result (p. 7) was that the Convention came into force on 2 September 1990 and has for many years has enjoyed almost universal ratification. Indeed, the only state still not a party to the Convention remains the United States of America which signed the Convention on 16 February 1995 but has refused to ratify it.51

II.  The Scope and Structure of the Commentary

A.  A Focus on Substantive Rights

This Commentary aims to provide an analysis of the meaning of articles 1 to 40 of the Convention and its first two optional protocols, the Optional Protocol on the Involvement of Children and Armed Conflict52 and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.53 It does not attempt to offer any commentary on the preamble and articles 41 to 54 of the Convention or the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.54 This is not to suggest that the preamble, these additional articles, and the third Optional Protocol are not deserving of analysis. The decision to exclude these parts of the Convention and the third Optional Protocol was influenced by a number of considerations.

The first and most pressing was logistical. This project has already taken eighteen years and if it were to examine every provision of the Convention and every Optional Protocol it is unlikely to have ever been completed. Thus, hard decisions had to be made. The preamble was excluded on the grounds that it is non-binding and there is very little practice that could shed light on its meaning. Articles 41–54 were omitted from the scope of this commentary on the basis that with the exception of article 41,55 they generally concern procedural arrangements and do not contain any substantive rights for children. For the same reason, the third Optional Protocol has also been excluded from the Commentary. These omissions mean that the Commentary does not offer a comprehensive analysis of the entire Convention and all its Protocols. That said, these omissions could still become the subject of an additional volume to the complement this commentary at some time in the future. Moreover, in the interim there are other commentaries and scholarship that (p. 8) offer guidance with respect to those articles under the Convention that are omitted from this commentary56 and the third Optional Protocol.57

B.  The Structure of the Commentary

Although a number of scholars have contributed chapters to this Commentary, considerable effort has been made to ensure a degree of coherence in the approach to the many and varied provisions under the Convention. This necessarily involved a greater degree of interaction with contributors than is commonly the case. Differences in both style and substance inevitably arise in a project of this size. However, it is hoped that the process adopted has led to the production of a reasonably coherent body of work. To assist in achieving this end, each chapter is dedicated to an article under the Convention and consists of four parts: an introduction; an analysis of the article; an evaluation of the article; and a select bibliography.

The introduction seeks to offer some general observations in relation to the right under discussion. It offers, for example, a discussion of the historical status of the right, its contemporary significance, and its underlying values. Where appropriate, the introduction includes a brief discussion of the article’s relationship with other provisions of the CRC and other international human rights instruments. The introduction also identifies the key issues for interpretation that arise under the article and will generally offer a summary with respect to the resolution of these issues.

The second part of each chapter provides the commentary for each right. It is designed to offer an in-depth analysis of the text of each article. The structure of this analysis will depend on the structure of the article itself. Generally speaking however, each chapter offers a discussion as to the scope of the right in question and the nature of the obligation imposed on states with respect to that right. The methodology used to generate this commentary is discussed below. Importantly, the goal of the commentary is not to ‘resolve’ every issue that might arise under each article or focus on a range of diffuse case studies. Instead the aim is to identify the fundamental principles that should guide and inform the understanding of each right so that these principles and this understanding can be applied by those who read the commentary to a range of diverse case studies in practice.

The evaluation section for each chapter provides an opportunity to draw together some of the observations made during the analysis relating to the article’s strengths, weaknesses, unresolved issues, and future development. Finally, the select bibliography is designed to (p. 9) identify the key scholarly works (primarily but not exclusively any leading monographs and journal articles) relevant to the article.

A detailed account of the drafting history is not included as a separate section in each chapter. This decision was made for three reasons. The first was to keep the overall length of the Commentary within manageable limits. The second was that it was considered to be more useful and appropriate to incorporate the noteworthy aspects of the drafting history into the main body of the textural analysis consistent with article 32 of the Vienna Convention on the Law of Treaties.58 The final reason is that in 2007 the Office of the High Commissioner in collaboration with Save the Children produced a detailed account of the drafting history of the Convention which is readily available on line.59 As such, the inclusion of a separate section on the drafting history for each article in the commentary would have served a limited function.

III.  A Methodology for Interpreting the Convention

A.  Methodology Matters

Too often engagement with the Convention is unaccompanied by any explanation as to the methodology being employed to generate the meaning of its provisions. Even the CRC Committee rarely outlines the principles and methodology it employs to generate its general comments or concluding observations.60 It is also common for advocates, policy makers, service providers, professionals, and even academics to read the Convention through the prism of their own subjective values and agendas to generate meanings that accord with these same preferences and agendas. It is easy to do given the malleability of the text of the Convention. This malleability may well be one of the strengths of the Convention as it allows for interpretations that can accommodate the changing needs and circumstances of children and address matters that may not have been anticipated at the time of drafting.61 However, the Convention’s malleability is also accompanied by a risk that in the absence of any agreed constraints on the interpretative process, its provisions can be readily stretched to accommodate broad and competing agendas. This creates a real risk of divergence and disagreement with respect to the meaning of the Convention.

(p. 10) To an extent, a level of disagreement is inevitable given the indeterminacy of language. Indeed, it is unrealistic to expect that agreement will always be reached with respect to the meaning of every aspect of every article under the Convention. That said, radical indeterminacy—a label often directed at terms such as the ‘best interests of the child’—leaves us with nothing. Thus, the challenge is to persuade others beyond the converted to accept a meaning for each article under the Convention from among a suite of potential meanings. In order to meet this challenge, there is a need to adopt a methodology for the interpretation of the myriad of terms and phrases within the Convention that will be rigorous and persuasive. There is also a need to be transparent with respect to the process being used to generate a meaning for each article so that others can both understand and critique the suitability of this process and the veracity of the meaning it produces for the articles under the Convention.

What then is the most persuasive method for the interpretation of the Convention? My argument is that it must consist of four qualities—it must be principled, practical, coherent, and context sensitive. It is to the meaning of each of these considerations that I now turn.

B.  A Principled Interpretation

1.  The General Rule

Under international law, the default position when seeking to bring legitimacy to the interpretation of an international treaty is the general rule of interpretation under article 31(1) of the Vienna Convention on the Law of Treaties (‘VCLT’).62 This provision states that:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms … in their context and in light of its object and purpose.

For good measure the provisions of the VCLT also allow recourse to subsequent practice among states, other relevant rules, and the travaux préparatoires of a treaty as additional tools by which to resolve the interpretative dilemma.63 Thus there is an expectation that for the interpretation of the provisions of the Convention to be persuasive it must, as a minimum, engage with, and apply, the general rule of treaty interpretation under the VCLT and consider, where appropriate, the travaux préparatoires for the Convention.64

Although necessary, such an approach is insufficient given that it has been widely acknowledged, even at the time of its adoption, that the inherent elasticity associated with an application of the general rule under the VCLT is incapable of producing the determinate meaning of a treaty.65 First, there is the issue of which interpretative approach (p. 11) takes precedence—the textual, contextual, teleological, or historical? Second, the textual approach assumes an understanding as to the ‘ordinary meaning’ of a term in an international treaty which will invariably be contentious. Consider for example terms under the Convention such as ‘a child’s best interests’; the obligation to give ‘due weight’ to a child’s views; a child’s right to the ‘highest attainable standard health’—the ordinary meaning of these terms is far from readily apparent.

It is true that the limitations of a formal textual approach are recognized by the inclusion of a requirement to consider the broader ‘context’—an acknowledgement that the ordinary meaning of a word cannot be ascribed in isolation.66 But the inclusion of a requirement to consider context raises a question as to how widely ‘context’ is to be understood.67 To a certain extent the ‘objects and purpose’ of a treaty will assist in the resolution of this dilemma by contributing to an understanding of the ‘context’. But the teleological approach is not without its own problems. First is the question of priority: ‘what significance is to be attached to them [the object and purpose] in comparison with other factors? And secondly what is the method of ascertaining them’.68

The preamble of a treaty may assist with respect to this second question.69 But an examination of the preamble of any international human rights treaty will generally yield an answer which is expressed at such a high level of abstraction that is unlikely to narrow the interpretative inquiry. The preamble to the Convention is no different in this respect. It is clear that childhood is entitled to special care and assistance but views will differ as to what care and assistance means. The use of a smack to discipline a child may be considered appropriate guidance and care by one parent but a form of abuse by another. It is also clear from the preamble that the family, as the fundamental group of society, is deserving of special protection. But what is the definition of a family? Some might insist on an opposite sex couple who have children conceived in wedlock whereas other will embrace a same-sex relationship in which the partners care for children conceived via a surrogate or assisted reproductive technology.

There still remains the possibility to make recourse to the drafting history of the Convention to resolve any interpretative dilemmas. However, most commentators have recognized the limits of the drafting history as a means of resolving interpretative disputes.70 This is not to say that the drafting history is irrelevant. However, its significance and role should not be overstated. Thus, while the directives under the VCLT must inform and constrain the interpretation of the Convention, they will not produce its meaning. Other considerations will necessarily come into play when advancing an interpretation of its provisions.

(p. 12) 2.  Special Rules for Human Rights Treaties

There is a widespread, albeit contested, view that human rights treaties, as a form of special regime, warrant a special interpretative methodology.71 These special principles have been largely developed by the European Court of Human Rights,72 which has held that an interpretation of the rights under the European Convention on Human Rights and Fundamental Freedoms must be one which:

  • •  ‘is most appropriate in order to realize the aim and achieve the objective of the treaty not that which would restrict to the greatest possible degree the obligations undertaken by States (emphasis added)’;73

  • •  will ‘make its safeguards practical and effective’;74 and

  • •  adopts a dynamic interpretation that responds to evolving standards.75

A similar approach has been adopted by the Inter-American Court of Human Rights76 and to a lesser extent some of the United Nations human rights treaty monitoring committees.77

These principles, although contentious, should also be used to inform the interpretation of the Convention. They require a generous interpretation as to the scope of each right78 and a restrictive approach when interpreting any limitations which can be imposed (p. 13) on a right.79 However, their application will still not produce a determinate meaning for each provision. Inevitable tensions will arise, for example, regarding the measures required to make the enjoyment of a child’s right ‘effective’. Debate will also endure regarding how far the principle of dynamic interpretation can be used to extend the scope of a right beyond what was intended by states as reflected in the travaux préparatoires.80 The prospect of these controversies means that there is a need to identify the additional considerations required to generate a persuasive account as to the meaning of the rights under the Convention.

C.  A Clear and Practical Interpretation

In light of the high level of abstraction that characterizes the Convention, the interpretative process must be directed at achieving increasing levels of clarity as to the content of a human right. As Maarten Bos has emphasized, the interpretative process must not only be ‘an activity … designed to clarify the text of a written manifestation of law, it must also be cognizant of the need to ensure that the interpretation offered is capable of application to the realities of daily life and practice’.81 Clarity and practicality are therefore essential attributes of an interpretative process that seeks to produce a persuasive interpretation.

The requirement that the interpretation of a right under the Convention must be clear and practical is perhaps so obvious that its identification as a specific element of a persuasive interpretation could be considered unwarranted. Surely every act of interpretation would instinctively be guided by these features? In practice however, reliance on instinct raises the risk that the subjective preferences of an interpreter will be insufficiently attentive to the need to ensure that the interpretation offered is clear and practical. As Vagts has explained, the focus must be on the practical with ‘less attention given to finding ‘the’ right way of interpreting … than on identifying techniques that clarify, that help achieve the target of the drafters and that further a fruitful interaction between the writers and the readers of documents’.82 The interpretation offered must be ‘socially manageable’83 and ‘action guiding’84 rather than being so ambitious and demanding that implementation becomes impossible even with the best of intentions.

D.  Coherence

A persuasive interpretation of the rights under the Convention must also demonstrate coherence both in its reasoning and coherence within the international legal system.85 (p. 14) Although the two are interconnected, as Soriano explains, ‘[t]heories of coherence in legal reasoning focus on the arguments and on how the given arguments are connected’ whereas ‘coherence in the legal system focuses on fitting a decision into the legal system and on the fitting together of all components of the legal system’.86

1.  Coherence in Reasoning

Coherence in reasoning essentially involves the provision of arguments to support premises. The coherence of these arguments is assessed by reference to the connectedness of their underlying reasons—what Soriano calls their ‘supportive structures.’87 Of particular relevance are: the number of supportive relations; the length of the supportive structure; the strength of the support; and the capacity for what is termed ‘netting’ of reasons.88 This netting of reasons is actually a common feature of attempts to interpret human rights standards. The body or person interpreting a right will almost invariably enlist the work of a human rights treaty body, a relevant special rapporteur, domestic courts, commentators, and/or other experts to support their interpretation.

The reasons underlying recourse to the interpretative work of other actors are seldom if ever acknowledged. Perhaps this approach is considered so self-evident that no explanation is warranted. However, it remains important to expressly acknowledge why such an approach is necessary, namely, to enhance and defend the coherence and rigour of the interpretation being offered. Moreover, an active awareness as to the reason for ‘netting’ the views of other actors guards against a tendency to simply import such views into the meaning of the right under interpretation. In the case of the Convention, it demands that careful consideration must be given to critically assessing whether the reasons underlying the views of the CRC Committee are actually convincing and persuasive. Consideration must also be given to the extent to which the interpretative work of other bodies which may have been developed in light of the experiences of adults remains relevant and applicable to children.

The final point to make is that coherence in the reasoning offered to justify an interpretation of a right under the Convention can be further strengthened by the ‘netting’ of reasons from non-legal sources.89 Where appropriate efforts should be made to draw on the insights from other disciplines such as health, education, and psychology, to support the meaning of a right under the Convention. Indeed, this is a highlight of this Commentary, which seeks to draw insight from a broad and diverse range of disciplines when mapping out the contours of each article. Critically, the existence of a coherence in reasoning that only satisfies the expectations of the legal interpretative community will be of little benefit and utility if it is unable to appeal to those disciplines that actually develop and deliver the policies that impact on the lives of children.

2.  System Coherence

At the international level, the International Court of Justice has also held that ‘an international instrument has to be interpreted and applied within the framework of the entire (p. 15) legal system prevailing at the time of the interpretation’.90 Such a position indicates that the interpretation of the rights under the Convention must pursue coherence with the system of international law as a means to enhance its persuasiveness. This pursuit of system coherence must be directed at an interpretative outcome which is considered coherent when examined (a) within the context of the other provisions of the Convention—what I have termed ‘internal system coherence’ and (b) the entire system of international law—‘external system coherence.91

Internal system coherence aligns with the requirement under article 31(2) of the VCLT that the context in which a treaty is to be interpreted extends to a consideration of the text of the treaty itself. In practical terms it means, for example, that the best interests principle under article 3 must be interpreted in light of the obligation to hear a child’s views under article 12. External system coherence (or ‘systemic integration’ as it is often described by other commentators) is slightly more complicated given the fragmentation of international law. In relation to this issue there are however some principles outlined in the International Law Commission (‘ILC’) Fragmentation Study that offer assistance.92 First, ‘[i]n international law there is strong presumption against normative conflict’.93 The application of this presumption supports a preference for harmonization or systemic integration. Such an approach works well in resolving any apparent conflicts that may arise between the provisions of the Convention and other treaties such as the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic Social and Cultural Rights (‘ICESCR’) which have an object and purpose which is broadly similar. Thus, for example, harmonization offers an appropriate interpretative guideline with respect to the resolution of apparent conflicts between the formulation of for example the right to health under the CRC and ICESCR or the general articles regarding implementation of rights under the CRC and the twin Covenants. Unless there is evidence in the drafting history to suggest that an alternative meaning was intended, the interpretation of similar provisions in different human rights treaties should pursue harmonization.

Harmonization cannot however resolve genuine conflicts between norms under international law.94 When this occurs with respect to a provision under the Convention two considerations are relevant. First, article 41 of the Convention provides that where a (p. 16) higher standard exists, this standard must prevail. Conversely, if the Convention offers the higher standard relative to another international standard, the standard under the Convention must prevail.

The second consideration involves the principle of lex specialis, (that special law derogates from general law) which is the ‘accepted maxim of legal interpretation and technique for the resolution of normative conflicts’.95 With respect to its impact on the interpretation of a right under the Convention, it demands that where there is a special rule that is relevant to the potential scope of that right under another instrument, that special rule should inform the interpretation of the right under the Convention.96 The principle of lex specialis can thus be used to perform a type of harmonization function. However, such a technique also indicates that there are limits with respect to the extent to which the interpretative process can expand the meaning and content of a right under the Convention. This is because the coherence of the international legal system will be undermined if the interpretative process seeks to extend the boundaries of a right under the Convention beyond another special rule with a more precisely delimited scope of application.97 Care must therefore be taken to maintain the distinction between lex lata and lex ferenda when interpreting the Convention—the law as it is and the law as it might be.98

E.  Context Sensitivity

It is now widely accepted that, rather than being natural and immutable, the content of international law is always contextualized.99 As Justice Higgins, former President of the International Court of Justice, explains, ‘A refusal to acknowledge political and social factors cannot keep law “neutral”, for even such a refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics.’100 For Justice Higgins it follows that, ‘the assessment of so-called extra-legal considerations is part of the legal process’.101 What these considerations are and the extent to which they should inform the interpretative process remains a matter for debate. As a minimum, however, it is suggested the interpretation of the Convention must demonstrate sensitivity to context in at least two respects – the local and the global.

1.  Local Context Sensitivity

The role, meaning, and place of culture within the interpretation of human rights remains contentious. It is clear that rights discourse can be used in a hegemonic way to displace, devalue, and colonise all other competing agendas.102 It is also clear, as Philip Alston has explained, ‘[j]ust as culture is not a factor which must be excluded from the human rights (p. 17) equation so too must it not be accorded the status of a meta-norm which trumps human rights’.103 What remains unclear however is where to draw the line. The principle of local context sensitivity represents an attempt to allow the social, cultural, and political values of a state to play a role in developing an understanding of the meaning of the rights under the Convention.

The means by which to demonstrate local context sensitivity when interpreting the Convention is assisted by an examination of the margin of appreciation doctrine developed under the European Convention on Human Rights.104 The principle, which is not expressly provided for within international human rights treaties and has been the subject of significant criticism, was developed by the European Court in an attempt to allow states a margin of discretion in the measures required to comply with their obligations under the European Convention in light of the particular circumstances within the State Party. Although the initial application of the principle was largely confined to the context of assessing the reasonableness of limitations imposed upon rights by a state, it is now also used to inform determinations as to the scope of a right.105

The rationale underlying the justification for the doctrine is the perceived need to accommodate cultural diversity within the States Parties to the Convention.106 After undertaking a careful analysis of the case law of the Court, Arai-Takahashi concluded that ‘[t]he doctrine’s only defensible rationale … is to enable the Strasbourg Court to provide endorsement of the maintenance of cultural diversity, ensuring to the citizens of Europe the means to articulate and practice their preferred values within a multicultural democracy’.107 Such an observation is significant in the context of any attempt to articulate an interpretative approach to the Convention that remains sensitive to the socio-political context within a state. Despite the fact that the margin of appreciation has its dissenters,108 it remains a necessary interpretative technique.109

(p. 18) As a general rule the scope of a state’s margin of discretion will generally be wider when there is less agreement within the relevant interpretative community as to the scope of a particular right. This discretion accorded to states however is not without limits and there will remain an overarching requirement that the understanding of a right must be directed towards the effective realization of the object and purpose of the right in question. In other words, an approach to interpretation that is context-sensitive must also be consistent with the requirement that the interpretation offered is principled.

2.  Global Context Sensitivity

An awareness of the context in which the interpretation of a human right takes place also requires an understanding of the tension that marks both the origins and implementation of the Convention. Although the Convention may act as a legal constraint on the exercise of state sovereignty, its implementation is still constrained by the reality of state sovereignty. Unlike domestic law, where a state cannot as a general rule unilaterally disengage from domestic adjudicative processes or dismiss their directives, this is a permanent and accepted feature of the international legal system given its consensual nature. In the absence of effective coercive measures, dialogue and communication are the tools by which the standards under the Convention are to be secured. This means that there is an ever-present risk that states are likely to disengage from and exit any interpretative dialogues (whether they be with the CRC Committee, NGOs, advocates, or other actors) if they perceive that the interpretation being offered is discordant with their expectations as to the scope of the right.

The challenge therefore is to develop an interpretative methodology that is sensitive to this political reality. A restrictive approach to interpretation is unlikely to antagonize states. However, interpretative appeasement creates the risk that the object and purpose of Convention will be subverted in order to avoid antagonizing states. In such circumstances the interpretative act risks becoming, to borrow the words of Koskenniemi, nothing more than an ‘apology’.110 It may be pragmatic but it will not be principled.

Moreover, such an approach, even if it were adopted, would still be unable to address what are termed here as ‘effectiveness gaps’ in a treaty. These ‘gaps’ include what Dixon has labelled as ‘blind spots’ and ‘burdens of inertia’ to explain deficiencies within the domestic legislative process that occur for various reasons and require a judicial response to remedy the subsequent weaknesses in the legislation caused by the existence of such features.111 These terms can also be appropriated to describe deficiencies within the drafting process of an international treaty like the Convention. ‘Blind spots’ are taken to refer to those specific issues which were overlooked or unanticipated in the drafting process but which remain essential to the effective operation of the relevant provision and thus require the development of an appropriate interpretative response.

‘Burdens of inertia’ refer to those matters that may have been discussed during the drafting process but which were not specifically included because factors such as time and political intransigence on the part of some states prevented consensus with respect to an appropriate formulation. In such circumstances a gap may be left within the text of the Convention which unless addressed may undermine its effective implementation. Hence, (p. 19) the use of the phrase ‘effectiveness gaps’ to illustrate the areas in which the interpretative exercise will need to develop an appropriate understanding of the Convention with respect to matters unanticipated or unresolved between states but necessary for the effective operation of the Convention.

When responding to such gaps it remains important to heed the warning of Lord McNair that: ‘Conditions should only be implied with great circumspection; for if they are implied too readily they would become a serious threat to the sanctity of a treaty’.112 That said, even McNair was prepared to concede that ‘it is reasonable to expect that circumstances should arise … in which it is necessary to imply a condition in order to give effect to this intention’.113 At the same time, the need to offer an interpretation of the Convention that ensures its rights are real rather than illusory for children does not provide an unfettered license for inflating the terms of a treaty in such a way that the intentions and expectations of states are ignored.

IV.  Conclusion

The Convention is a remarkable instrument. Its ambitions are as vast as the scope of its provisions. Very few stones are left unturned. So many of the issues that would be expected to feature in an instrument on children’s rights drafted during the 1990s are addressed—juvenile justice, education, adoption, child labour, family violence, and health care.114 But there is so much more—the role of the media, the responsibilities for parents, a child’s right to an identity, and of course the right of the child to be heard in all matters affecting him or her. It is little wonder then that the Convention has attracted so much attention. For anyone seeking to advance or address the interests of children, there are likely to be several provisions of relevance. The precise meaning of these provisions will, however, invariably remain an issue for debate—who is a parent? How are the best interests of a child to be assessed? What is the scope of the right to health? These debates are to be encouraged. But so too is the need for self-reflection and caution. The is a constant need to consider whether and the extent to which personal agendas and values might be clouding the interpretation of the Convention. There is also a need to be strategic and consider the extent to which the interpretation offered has a receptive audience beyond the converted.

Neither this introductory chapter nor the other chapters in this commentary seek to stifle or control debates about how to determine the meaning of the provisions under the Convention. Rigorous and ongoing debates are to be encouraged. Indeed, there is a need to remain mindful of the work of Sally Merry and her ideas about the vernacularization of human rights whereby local actors appropriate and transform international human rights standards in ways that adapt and respond to local cultural considerations.115 That said, there is also a need to recognize that the process of interpreting the Convention is (p. 20) far from simple if the interpretation being offered is to be persuasive. Within the context of international law, the general rule of interpretation and the special rules for the interpretation of human rights treaties must guide and constrain the interpretation process. Their application alone however does not produce the meaning of the text. Thus, there is a need to provide an account of those additional considerations that should be employed to generate a persuasive meaning for the provisions under the Convention. I have suggested that beyond being principled, any interpretative endeavour must also seek to produce a meaning that is clear and practical, coherent, and context sensitive. Others will take issue with this approach. This is to be welcomed.

Ultimately, the analysis offered in the chapters to this Commentary provides a detailed account as to the meaning of the rights under the Convention. Commentators will no doubt differ with respect to aspects of the interpretations offered and a plurality of voices with a plurality of views is to be encouraged.116 What is clear however is that there can be no suggestion that the Convention is simply a collection of vague, aspirational, and ambiguous terms. For the policy maker, teacher, doctor, social worker, health professional, academic, judicial officer, and indeed anyone working on matters that affect children, this Commentary hopefully contributes in a substantial way to an understanding of what is required to transform the aspirations of the Convention into reality.

john tobin*

Footnotes:

1  See eg John Tobin, ‘Increasingly Seen and Heard: The Constitutional Recognition of Children's Rights’ (2005) 21 South African Journal on Human Rights 86.

2  See eg: John Tobin, ‘Judging the Judges: Are Judges Adopting the Rights Approach in Matters Involving Children’ (2009) 33 Melbourne University Law Review 579; Helen Stalford, Katherine Hollingsworth, and Stephen Gilmore (eds), Rewriting Children’s Rights Judgments: From Academic Vision to New Practice. (Hart 2017).

3  See eg Philip Alston, John Tobin, and Mac Darrow, Laying the Foundations for Children’s Rights (UNICEF Innocenti Insight 2005).

4  See eg Laura Lundy, Ursula Kilkelly, Bronagh Byrne, and Jason Kang, The UN Convention on the Rights of the Child: A Study of the Legal Implementation in 12 Countries (UNICEF United Kingdom 2012);

5  See eg: Council of Europe—Children’s Rights https://www.coe.int/en/web/children (accessed 15 May 2018); Helen Stalford and E Drywood, Using the CRC to Inform EU Law and Policy-Making in Antonella Invernizzi and Jane Williams (eds), The Human Rights of Children: From Visions to Implementation (Ashgate 2011); Ursula Kilkelly, ‘Using the Convention on the Rights of the Child in Law and Policy? Two Ways to Improve Compliance’ in Invernizzi and Williams.

6  See eg CRIN (Children’s Rights International Network) https://www.crin.org (accessed 18 May 2018); Jude Fernando, ‘Children’s Rights: Beyond the Impasse’ (2001) 575 Annals of American Academy of Political and Social Science 8, 10 (noting that advocacy for international children’s rights is ‘one of the most powerful movements of the twentieth century’).

7  See eg: the scholarship published in the International Journal of Children’s Rights; Martin Ruck, Michele Peterson-Badali, and Michael Freeman (eds), Handbook of Children’s Rights: Global and Multidisciplinary Perspectives (Routledge 2017); Wouter Vandenhole, Ellen Desmet, Didier Reynaert, and Sara Lembrechts (eds), Routledge International Handbook of Children’s Rights Studies (Routledge 2015) Part 1; Didier Reynaert et al, ‘A Review of Children’s Rights Literature since the adoption of the United Nations Convention on the Rights of the Child’ (2009)16 Childhood 518; Ann Quennerstedt, ‘Children’s Rights Research Moving into the Future—Challenges on the Way Forward’ (2013) 21 International Journal of Children’s Rights 233; Laura Lundy and Laura McEvoy, ‘Children’s Rights and Research Processes: Assisting Children to (in)Formed Views’ (2011) 19 Childhood 129; Laura Lundy, Laura McEvoy, and Bronagh Byrne, ‘Working with Children as Co-researchers: An Approach Informed by the United Nations Conventions on the Rights of the Child’ (2011) 22 Early Education and Development 714.

8  Alston, Tobin, And Darrow (n 3) ix.

9  See Michael Freeman, ‘Why It Remains Important to Take Children’s Rights Seriously’ (2007) 15 International Journal of Children’s Rights 5.

10  See eg: John Tobin, ‘Justifying Children’s Rights’ (2013) 21 International Journal of Children’s Rights 395; David Archard, Children, Rights and Childhood (Routledge London 2004); John Eekelaar, ‘The importance of thinking that children have rights’ (1992) 6 International Journal of Family Law 221; Didier Reynaert et al, ‘Between ‘Believers’ and ‘Opponents’: Critical Discussions on Children’s Rights’ (2012) 20 International Journal of Children’s Rights 155; Rosalind Dixon and Marta Nussbaum, ‘Children’s Rights and a Capabilities Approach: The Question of Special Priority (2012) 97 Cornell Law Review 553.

11  See eg: John Tobin, ‘Understanding a Rights Based Approach for Children: Conceptual Foundations and Strategic Considerations’ in Invernizzi. and Williams (n 5) 61.

12  See eg: Plan International, Promoting child rights to end child poverty: Achieving lasting change through Child-Centred Community Development (Plan International 2010); Save the Children Sweden, Child Rights Programming: How to Apply Rights-Based Approaches to Programming (Save the Children Sweden 2005) 9; UNICEF, The State of the World’s Children 2014: Every Child Counts: Revealing Disparities, Advancing Children’s Rights 2014 (January 2014); UNICEF Global Evaluation of the Application of Human Rights Based Programming to UNICEF Programming (UNICEF 2012).

13  Jeremy Waldron, ‘Judges as Moral Reasoners’ (2009) 7 International Journal of Constitutional Law 2, 6.

14  John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 Harvard Human Rights Journal 201.

15  Vienna Convention on the Law of Treaties (‘VCLT’) (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

16  See: Alston, Tobin, And Darrow (n 3) 3–8 (outlining the stages in the development of international efforts to protect children and their rights); Zoe Moody, ‘Transnational Treaties on Children’s Rights: Norm Building and Circulation in the Twentieth Century’ (2014) 50 Paedagogica Historica 151, 152 (examining the history of children’s rights at the international level and arguing that the ‘an interdisciplinary approach is required to take into account the multiple facets of children’s rights, which cannot be solely considered as a legal concept, an educational evolution or a social construction’).

17  Alston, Tobin, And Darrow (n 3) 4. See also Clare Mulley, The Woman Who Saved Children: A Biography of Eglanytne Jebb: Founder of Save the Children (Oneworld Publications England 2009). The other great figure in the history of children’s rights is Janusz Korczak, the Polish paediatrician who became a champion for children’s rights and courageously choose to accompany orphaned children in his care to the gas chambers in Treblinka during the second world war: Martha Ignaszewski et al, ‘Dr Janusz Korszak and his legacy’ (2013) 55 BC Medical Journal 108.

18  Maggie Black, The Children and the Nations: The Story of UNICEF (UNICEF Sydney 1986) 199.

19  Alston, Tobin, And Darrow (n 3) 4.

20  See International Covenant on Civil and Political Rights (‘ICCPR’) art 24(1); International Covenant on Economic Social and Cultural Rights (‘ICESCR’) art 10.

21  United Nations General Assembly (‘UNGA’) Resolution 1386 (XIV) of 20 November 1959.

22  Alston, Tobin, And Darrow (n 3) 5; Office of the United Nations High Commissioner for Human Rights, Legislative History of the Convention on the Rights of the Child (United Nations 2007) (‘Legislative History’) 4–25 (detailing the drafting history and debates concerning the adoption of the 1959 Declaration).

23  Legislative History (n 22) 4.

24  ibid 4.

25  ibid 4.

26  ibid 4.

27  ibid 6.

28  John Humphrey, Human Rights and the United Nations: A Great Adventure (Transnational Publishers Dobbs Ferry 1984) 255–56.

29  UNGA Resolution 31/169 on an International Year of the Child adopted on 21 December 1976.

30  See Legislative History (n 22) 32–34.

31  ibid.

32  Adam Lopatka, ‘Introduction’ in Legislative History (n 22) xxxviii.

33  UNGA Resolution 33/166 on the ‘Question of a Convention on the Rights of the Child’ adopted on 20 December 1978 without a vote; Legislative History (n 22) 49.

34  See Lopatka (n 32) for a summary of the drafting process. For a full account of the drafting history see Legislative History (n 22) Part 2.

35  Lopatka (n 32) xxxviii.

36  Nigel Cantwell, ‘Word that Speak Volumes: A Short History of the drafting of the CRC’ in Jane Connors, Jean Zermatten, and Anastasia Panayotidis (eds), 18 Candles: The Convention on the Rights of the Child Reaches Majority (Institut international des droits de l’enfant Switzerland, 2007) 21, 21.

37  ibid.

38  Lopatka (n 32) xxxviii; Cantwell (n 36) 21.

39  Lopatka (n 32) xxxviii; Cantwell (n 36) 21.

40  Lopatka (n 32) xxxix.

41  ibid.

42  ibid.

43  Cantwell (n 36) 23–24 (explaining that in 1983 a group of NGOs decided to set up the NGO Ad Hoc Group for the Convention which allowed NGOs to prepare coherent proposals and allocate designated spokespersons on specific themes).

44  ibid. 29. See also Cynthia Price Cohen, ‘The Role of Nongovernmental Organizations in the Drafting of the Convention on the Rights of the Child’ (1990) 12 Human Rights Quarterly 137.

45  Lopatka (n 32) xxxix.

46  ibid xli.

47  Cantwell (n 36) 25.

48  ibid.

49  ibid.

50  Jimmy Carter, ‘Foreword’ in Richard Jolly (ed), Jim Grant: UNICEF Visionary (UNICEF Innocenti Florence) 11, 16.

51  See United Nations Treaty Series https://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY& mtdsg_no=IV-11&chapter=4&clang=_en accessed 15 May 2018 (providing the dates on which states signed, ratified, and acceded to the Convention and details regarding state declarations and reservations); Howard Davidson, ‘Does the UN Convention on the Rights of the Child Make a Difference?’ (2014) 22 Michigan State International Law Review 497 (discussing the considerable involvement of the United States in drafting the Convention, its reluctance to ratify the Convention, and the attendant consequences).

52  Adopted by UNGA Resolution A/RES/54/263 of 25 May 2000; entry into force 12 February 2002.

53  Adopted by UNGA Resolution A/RES/54/263 of 25 May 2000; entry into force 18 January 2002.

54  Adopted by the Human Rights Council 14 July 2011 A/HRC/RES/17/18.

55  CRC art 41 actually falls within Part I of the Convention and is clearly more than a procedural provision. It is what is typically referred to as a savings clause and provides that nothing in the 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’. See generally Deborah Russo, ‘Addressing the Relation between Treaties by Means of ‘Savings’ Clauses’ in (2015) 85 British Yearbook of International Law 133.

56  See eg: Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (3rd edn, UNICEF 2007); Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Brill 1999); Mieke Verheyde and Geert Goedertier, ‘A Commentary on the United Nations Convention on the Rights of the Child, Articles 43–45: The UN Committee on the Rights of the Child’ in André Alen, Johan Vande Lanotte, Eugeen Verhellen, Fiona Ang, Eva Berghmans, and Mieke Verheyde (eds), A Commentary on the United Nations Convention on the Rights of the Child (Brill 2006).

57  See eg: Trevor Buck and Michael Wabwile, ‘The Potential and Promise of Communications Procedure under the Third Optional Protocol to the Convention on the Rights of the Child’ (2013) 2 International Human Rights Law Review 205; Rhona Smith, ‘The Third Optional Protocol to the UN Convention on the Rights of the Child?—Challenges Arising Transforming the Rhetoric into Reality’ (2013) 21 International Journal of Children’s Rights 305. See also: Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) 819–909; Martha Freeman et al, The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (OUP 2012) 608–79 (each providing a commentary on several provisions under the first optional protocol to the ICCPR and CEDAW which are similar to those found in the 3rd optional protocol to the Convention).

58  Vienna Convention on the Law of Treaties art 32:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

  1. (a)  leaves the meaning ambiguous or obscure; or

  2. (b)  leads to a result which is manifestly absurd or unreasonable.

59  Legislative History (n 22) available on line at: https://resourcecentre.savethechildren.net/library/legislative-history-convention-rights-child-volume-1. See also: http://legal.un.org/avl/ha/crc/crc.html (providing links to the original preparatory documents relating to the drafting of the Convention).

60  Kerstin Mechlem ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905 (arguing that the work of the human rights treaty bodies often suffers from methodological weaknesses and a lack of coherence and analytical rigor, which compromise the legitimacy of their work).

61  Laura Lundy and Ursula Kilkelly, ‘Children’s Rights in Action: Using the UN Convention on the Rights of the Child as an Auditing Tool’ (2006) 18 Child and Family Law Quarterly 331 (arguing that the malleability of the Convention addresses the concerns of those who fear that the Convention will age with time); Tobin, Justifying Children’s Rights (n 10) 40 (arguing that the malleability of the Convention is one of its greatest strengths and offers the potential for a dynamic and inclusive evolution of children’s rights in which children must play an active role, consistent with their evolving capacities).

62  See eg: Richard Gardiner, Treaty Interpretation (2nd edn, OUP 2015) 5; Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) xxvi–xxvii; Marsha Freeman, Christine Freeman, and Beate Rudolf (eds), The UN Convention on the Elimination of Discrimination Against Women: A Commentary (OUP 2012) 13; James Hathaway, The Rights of Refugees Under International Law 48–73 (CUP 2005); Matthew Craven, The International Covenant on Economic Social and Cultural Rights: A Perspective on its Development 7–8 (OUP 1995).

63  VCLT arts 31(2)–(3), 32, 23.

64  Gardiner (n 62) 5.

65  Joseph Weiler, ‘Prolegomena to a Meso-theory of Treaty Interpretation at the Turn of the Century’ (Feb. 14 2008) (unpublished manuscript, International Legal Theory Colloquium, Institute for International Law and Justice, New York University School of Law) 5–6; Ulf Linderfalk, ‘Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making’ (2015) 26(1) European Journal of International Law 169; Gardiner (n 62) 5.

66  See Land Island and Maritime Frontier Dispute (El Sal v Hond) 1992 ICJ 351, at 719 (separate Opinion of Judge Bernandez).

67  Francis Jacobs, ‘Varieties of Approach to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of Treaties Before the Vienna Diplomatic Conference’ (1969) 18 International and Comparative Law Quarterly 318, 334.

68  ibid. 337. See also: Myres McDougal, ‘The International Law Commission’s Draft Articles Upon Interpretation: Textuality Redivivus’ (1967) 61 American Journal of International Law 992, 993, (‘Lest it be thought that the references to “context” and to “object and purpose” are intended to remedy the blindness and arbitrariness of “ordinary meaning”, context is immediately defined as including mere text’).

69  Case Concerning Rights of Nationals of the United States of America in Morocco (Fr v US) 1952 ICJ. 176, 196 (‘the purposes and objects of this Convention were stated in its Preamble’); Asylum Case (Colom v Peru) 1950 ICJ 266, 282.

70  See Tobin, Seeking to Persuade (n 14) 223–24.

71  Gardiner (n 62) 474–77; Mark Toufayan, ‘Human Rights Treaty Interpretation: A Postmodern Account of its Claim to “Speciality” ’ Center for Human Rights and Global Justice Working Paper Number 3, 2005; J G Merrills, The Development of International Law by the European Court of Human Rights (2nd edn, Manchester University Press 1993) chs 4–5 (detailing methods of interpretation and principle of effectiveness); Rudolf Bernhardt, ‘Thoughts on the Interpretation of Human Rights Treaties’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension Studies in Honour of Gerard J Wiarda (1st edn, Heymanns 1988) 65.

72  See generally: Francis Ost, ‘The Original Canons of Interpretation of the European Court of Human Rights’ in Mireille Delmas-Marty (ed), The European Convention for the Protection of Human Rights: International Protection versus National Restrictions 285; E C J Mosler, ‘Problems of Interpretation in the Case Law of the European Convention of Human Rights in Fritz Kalshoven et al (eds), Essays on the Development of the International Legal Order in Memory of Haro T van Panhuys (Sitjhoff & Noordhoff 1980).

73  See eg Wemhoff v Germany 2 ECtHR (ser A) 55, 8 (1968). See also eg Minister of Home Affairs v Fisher [1980] AC 319, 328 (Lord Wilberforce: noting that the interpretation of human rights treaties requires a generous interpretation that avoids ‘the austerity of tabulated legalism suitable to give individuals the full measure of the fundamental rights and freedoms referred to’).

74  See eg Loizidou v Turkey App No 15318/89, 29 Eur HR Rep 99, 72 (1995) (Commission Report).

75  See eg Tyrer v United Kingdom App No 5856/72, 2 Eur HR Rep 1 (ser A) (1978).

76  The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion, 1999 Inter-Am Ct HR (ser A) No 16 (1 October 1999) paras 114–15.

77  See eg: Human Rights Committee, ‘General Comment No 6: The Right to Life’ (30 April 1982) UN Doc HRI/GEN/1/Rev.7 paras 4, 5 in which the Human Rights Committee stressed the obligations of states to take ‘effective measures to prevent the disappearance of individuals’ [and] ‘noted that the right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures’; Judge v Canada Comm No 829/1998, CCPR, 78th sess, (2002) UN Doc CCPR/C/78/D/829/1998 para 10.3 explaining that the ICCPR ‘should be interpreted as a living instrument and the rights protected under it should be applied in context and in light of present day conditions’). See also Committee on the Elimination of Discrimination Against Women, ‘General Comment No 25 Temporary Special Measures’ UN Doc HRI/GEN/1/Rev.7 270, 3, in which the Committee stated that ‘(t)he Convention is a dynamic instrument’; ‘Issues relating to Reservations made Upon Ratification of Accession to the Covenant of the Optional Protocols or in Relation to Declarations under Article 41 of the Covenant’ (1994) UN Doc CCPR/21/Rev.1/Add.6.

78  See eg Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009) (Aust) Warren CJ, para 80 (‘human rights should be construed in the broadest possible way’).

79  United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985) UN Doc E/CN.4/1985/4 Annex, A.3.

80  See eg: Eirik Bjørge, The Evolutionary Interpretation of Treaties (OUP 2014); Christian Djeffal, Static and Evolutive Treaty Interpretation: A Functional Reconstruction (CUP 2015); Shai Dothan, ‘In Defence of Expansive Interpretation in the European Court of Human Rights Part II: Interpretation in International Law Symposium’ (2014) 3 Cambridge Journal of International and Comparative Law 508.

81  M Bos, ‘Theory and Practice of Treaty Interpretation’ (1980) Netherlands International Law Review 3, 15.

82  Detlev Vagts, ‘Treaty Interpretation and the New American Ways of Law Reading’ (2003) 4 European Journal of International Law 472, 473.

83  James Griffin, On Human Rights (OUP 2009) 37–39 (arguing that the criteria for assessing the justification of a human right is whether its obligations are ‘socially manageable’).

84  Charles Beitz, The Idea of Human Rights (OUP 2009) 163.

85  Leonor Moral Soriano, ‘A Modest Notion of Coherence in Legal Reasoning. A Model for the European Court of Justice’ (2003) 16 Ratio Juris 296, 296.

86  ibid 296–97.

87  ibid 310–20.

88  ibid 311–19. The idea of netting reasons is used in contrast to the idea of chained reasons. It is preferred because it is considered to better reflect the need to pursue the interconnectedness and reciprocal nature of reasons as opposed to the simple cumulation of independent chains of reasons. ibid 310–11.

89  ibid 311–19.

90  Legal Consequences for States of the Continued Presence of South Africa in Namibia 1971 ICJ 6. See also Campbell McLachlan, ‘The Principle of Systematic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279, 280 (arguing that VCLT art 31(3)(c), which requires that any relevant rules of international law must be taken into account in the interpretative process, ‘expresses a more general principle of treaty interpretation, namely that of systemic integration within the international legal system’).

91  This concept of external system coherence seeks to accommodate and exceed the requirement under VCLT art 31(3)(c) that the application of the general rule under art 31(1) take into account any relevant rules of international law applicable in the relations between the parties. The requirement of external system coherence requires a consideration of not just these rules but the entire system of international law especially the provisions of other human rights treaties but also other multilateral treaties and regimes within international law.

92  ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’—Report of the Study Group of the International Law Commission (13 April 2006) UN Doc A/CN.4/L.682 (‘ILC Fragmentation Report’). See also: Adamantia Rachovitsa, ‘Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to Be Learned from the Case Law of the European Court of Human Rights’ (2015) 28(4) Leiden Journal of International Law 863; Adamantia Rachovitsa, ‘The Principle of Systemic Integration in Human Rights Law’ (2017) 66(3) International & Comparative Law Quarterly 557.

93  ILC Fragmentation Report (n 92) para 37.

94  ibid para 42.

95  ibid para 56.

96  ibid para 60 (‘lex specialis may also seem useful as it may provide better access to what the parties have willed’).

97  ibid para 57.

98  Rosalyn Higgins, Problems and Process: International Law and How We Use It? (Clarendon Press 1994) 10.

99  See eg: Bruno Simma and A Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ in Stephen Ratner and Anne Marie Slaughter, The Methods of International Law Studies (Studies in Transnational Legal Policy No 38 ASIL 2004) 23, 29; Siegfried Wiessner and Andrew Willard, ‘Policy Orientated Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity’ in Ratner and Slaughter (ibid) 47, 48.

100  Higgins (n 98) 5.

101  ibid.

102  See eg David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2001) 14 Harvard Human Rights Journal 101.

103  Philip Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ in Philip Alston (ed), The Best Interests of the Child: Reconciling Culture and Human Rights (OUP 1994) 20.

104  ibid (also advocating this approach). See also Matthew Craven, The International Covenant on Economic Social and Cultural Rights: A Perspective on its Development (OUP 1995) 115–16 (advocating this position with respect to the obligations of states under the ICESCR). The literature with respect to the principle is extensive. However, the work of Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Kluwer Law International 1996) provides one of the more comprehensive insights into the operation of this doctrine. See also Alastair Mowbray, Cases and Materials on the European Convention on Human Rights (2nd edn, OUP 2007) 629–34.

105  See Yourow (n 104) 183.

106  ibid 195–96; Humphrey Waldock, ‘The Effectiveness of the System Set Up by the European Court of Human Rights’ (1980) 1 Human Rights Law Journal 1,1 (arguing that the margin of appreciation doctrine was designed to ‘reconcile the effective operation of the Convention with the sovereign powers and responsibilities of governments in a democracy’).

107  Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002) 49.

108  See eg: Timothy Jones, ‘The Devaluation of Human Rights under the European Convention’ (1995) 6 PL 430; Ronald MacDonald, ‘The Margin of Appreciation’ in Ronald MacDonald, Franz Matscher, and Herbert Petzold (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) 124 (expressing concern that the doctrine obscures the reasons for a court’s decisions).

109  See: Jereon Schokkenbroek, ‘The Basis, Nature and Application of the Margin of Appreciation Doctrine in the Case Law of the European Court of Human Rights’ (1998) 19 Human Rights Law Journal 30; Paul Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19 Human Rights Law Journal 1 (detailing those factors which should influence and inform the scope of the margin of appreciation).

110  Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP 2005).

111  Rosalyn Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited’ (2007) 5 International Journal of Constitutional Law 391.

112  Arnold McNair, The Law of Treaties (Clarendon Press, 1961) 436.

113  Ibid 436.

114  See Laura Lundy et al, ‘What if Children Had Been Involved in the Drafting the Convention on the Rights of the Child?’ in Alison Diduck, Noam Peleg, and Helen Reece (eds), Law in Society: Reflections on Children, Families, Culture and Philosophy: Essays in Honour of Michael Freeman (Brill 2015).

115  Sally Merry, ‘Crossing Boundaries: Ethnography in the Twenty-First Century’ (2000) 23 Political and Legal Anthropology Review 127, 129. See also: Sally Merry, The Practice of Human Rights: Tracking Law Between the Global and the Local (CUP 2007); Didier Reynaert, Ellen Desmet, Sara Lembrechts, and Wouter Vandenhole, ‘A Critical Approach to Children’s Rights’ in Vandenhole et al (n 7) 1, 7 (noting that ‘children’s rights depending on the context … may be interpreted and realized in a different ‘localized’ way’).

116  It is acknowledged that this commentary focuses on the English version of the Convention and that the contributors to this collection largely come from Western Europe, North America, and Australia. This is largely due to my limited ability to travel which has meant that my contacts in children’s rights have been limited to these regions. It is recognized that scholars, advocates, and policy makers from other regions—Africa, the Middle East, Latin America, Asia, and Eastern Europe—already have made and will continue to make a significant contribution to the understanding of the Convention.

Thanks to Philip Alston and Laura Lundy for their helpful comments on earlier drafts of this chapter. All errors and omissions remain my own.