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The UN Convention on the Rights of the Child - A Commentary edited by Tobin, John
- Preliminary Material
- Reflection
- Acknowledgements
- Table of Contents
- Table of Cases
- International
- International Criminal Court for the Former Yugoslavia
- United Nations Treaty Bodies
- Committee on the Elimination of Racial Discrimination
- Regional
- European Committee of Social Rights
- European Court of Justice
- Inter-American Commission on Human Rights
- Inter-American Court of Human Rights
- Domestic
- Table of Abbreviations
- Notes on Contributors
- Main Text
- Introduction: The Foundation for Children’s Rights
- Art.1 The Definition of a Child
- Preliminary Material
- I Introduction
- II Analysis of Article 1
- A The Beginning of Childhood
- B The Status of the Unborn Child: Three Possible Conceptions
- C The End of Childhood
- D Justifying the Distinction between Adulthood and Childhood
- E Childhood as an Enduring Concept
- F Understanding Childhood as a Constructed Concept
- G The Modern Conception of Childhood
- H A Single Conception of Childhood?
- III Evaluation: A Flexible and Culturally Sensitive Conception of Childhood
- Select Bibliography
- Art.2 The Right to Non-Discrimination
- Preliminary Material
- I Introduction
- II Analysis
- A Function
- B Duties: ‘Shall Respect and Ensure’ and ‘Shall Take All Appropriate Measures’
- C Scope: ‘The Rights Set Forth in the Present Convention to Each Child within Their Jurisdiction’
- D Content: ‘Without Discrimination of Any Kind’
- E Monitoring
- F Special Provisions Relating to Child Discrimination
- III Evaluation
- Select Bibliography
- Art.3 The Best Interests of the Child
- Preliminary Material
- I Introduction
- II Analysis of Article 3
- A Paragraph 1: The Best Interests Principle as a Primary Consideration
- 1 Scope of the Principle
- 2 Measures for the Implementation of the Best Interests Principle
- 3 Assessment of a Child’s Best Interests
- (a) The Indeterminacy Dilemma
- (b) Considerations which Reduce Indeterminacy
- (c) Weight to Be Accorded to a Child’s Best Interests
- (d) Striking the Balance with Equivalent Interests
- (e) Best Interests Principle as a Precautionary Principle
- (f) Circumstances in which Children’s Best Interests Are More than a Primary Consideration
- B Paragraph 2: The Obligation to Ensure a Child’s Well-Being
- C Paragraph 3: The Obligation to Regulate Institutions and Services That Provide Care and Protection for Children
- A Paragraph 1: The Best Interests Principle as a Primary Consideration
- III Evaluation
- Select Bibliography
- Art.4 A State’s General Obligation of Implementation
- Preliminary Material
- I Introduction
- II The Obligation to Take All Appropriate Measures
- A The Meaning of All Appropriate Measures
- B Legislative, Administrative, or Other Measures
- 1 A Non-Exhaustive List
- 2 The Committee’s Views
- (a) Legislative Measures
- (b) Administrative and Other Measures
- III The Obligation with Respect to Economic, Social, and Cultural Rights
- IV The Obligation of States under the Framework of International Cooperation
- V Evaluation: A Solid Platform
- Select Bibliography
- Art.5 The Right to Parental Direction and Guidance Consistent with a Child’s Evolving Capacities
- Preliminary Material
- I Introduction
- II Analysis of Article 5
- A The Obligation of States
- B The Responsibilities, Rights, and Duties of Parents
- C The Right of a Child to Receive Appropriate Direction and Guidance
- III Evaluation: A Radical Provision?
- Select Bibliography
- Art.6 The Rights to Life, Survival, and Development
- Preliminary Material
- I Introduction
- II Analysis of Article 6(1): The Right to Life
- A The Beneficiaries of the Right: Every Child
- B The Inherent Right to Life
- C The Meaning of the Right to Life
- D The Obligation of States
- E Does the Right to Life Include an Entitlement to Be Kept Alive?
- F Issues of Particular Concern to the Committee
- III Analysis of Article 6(2): The Rights to Survival and Development
- IV Evaluation: An Expanding Agenda
- Select Bibliography
- Art.7 The Rights to Birth Registration, a Name, Nationality, and to Know and Be Cared for by Parents
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: The Meaning of the Rights Protected
- A The Right to Birth Registration
- B The Right to a Name
- C The Right to Acquire a Nationality
- D The Right to Know Parents as Far as Possible
- 1 Who Is a Parent?
- 2 The Relevance of the Rights to Identity and Privacy
- 3 Knowledge of a Parent as Far as Possible
- E The Right to Be Cared for by Parents as Far as Possible
- III Analysis of Paragraph 2: The Obligations of States under National and International Law and the Presumption against Statelessness
- IV Evaluation: A Commitment to Recognizing the Status and True Identity of a Child
- Select Bibliography
- Art.8 The Right to Preservation of a Child’s Identity
- Preliminary Material
- I Introduction
- II Analysis of Article 8
- A Paragraph 1: A Child’s Right to Preservation of His or Her Identity
- B Paragraph 2: The Obligation to Re-Establish a Child’s Identity Following Illegal Deprivation
- III Evaluation: An Evolving Right with Broad Ranging Implications
- Select Bibliography
- Art.9 The Right Not to Be Separated from Parents
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: The Presumption against Separation of Children from Their Parents
- A The Nature of a State’s Obligation
- B The Requirement Not to Separate Children from Their Parents ‘against Their Will’
- C Separation from Other Family Members
- D The Circumstances When Separation Is Permitted
- III Analysis of Paragraph 2: The Right of Interested Parties to Participate in Proceedings
- IV Analysis of Paragraph 3: The Right of Separated Children to Maintain Relations and Contact with Their Parents
- V Analysis of Paragraph 4: The Obligation to Provide Information about the Whereabouts of Absent Family Members
- A The Circumstances When the Obligation to Provide Information Will Be Invoked
- B The Beneficiaries of the Right
- C The Requirement to Request Information
- D The Meaning of ‘Essential Information’
- E The Provision of Information Must Not Be Detrimental to the Well-Being of the Child
- F The Obligation to Protect Persons Requesting Information against Adverse Consequences
- VI Evaluation: The Shift from a Welfare Approach to a Rights-Based Approach
- Select Bibliography
- Art.10 The Right to Family Reunification
- Preliminary Material
- I Introduction
- II Analysis of Article 10(1)
- III Analysis of Article 10(2)
- IV Evaluation: Pushing the Boundaries
- Select Bibliography
- Art.11 Protection against the Illicit Transfer and Non-Return of Children Abroad
- Preliminary Material
- I Introduction
- II Analysis of Article 11
- A Article 11(1): The Obligation to Take Measures to Combat the Illicit Transfer and Non-Return of Children Abroad
- B Article 11(2): The Obligation to Promote or Accede to Bilateral or Multilateral Agreements
- 1 The Obligation to Promote
- 2 Accession to Existing Agreements
- 3 The Tension between Existing Agreements and the Provisions of the Convention
- III Evaluation: A Useful but Neglected Provision
- Select Bibliography
- Art.12 The Right to Respect for the Views of the Child
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: The Right to Be Heard and Taken Seriously
- A The Beneficiaries of the Rights: Children Capable of Forming Their Own Views
- B The Scope and Content of the Rights
- C The Obligation of States to ‘Assure’
- III Analysis of Paragraph 2: Judicial and Administrative Proceedings
- IV Evaluation: A Radical but Practical Inclusion
- Select Bibliography
- Art.13 The Right to Freedom of Expression
- Preliminary Material
- I Introduction
- II The Scope of the Right to Freedom of Expression
- III The Obligations of States under Article 13
- IV Limiting Children’s Right to Freedom of Expression
- A The Grounds for Restricting Children’s Right to Freedom of Expression
- B A Right Subject to Special Duties and Responsibilities
- C Restricting a Child’s Right to Freedom of Expression under Article 13
- D Assessing the Necessity of Restrictions on Children’s Right to Impart Information
- E Restricting Children’s Freedom of Expression to Protect Their Own Rights
- V Conclusion: Emerging from the Shadows
- Select Bibliography
- Art.14 The Right to Freedom of Thought, Conscience, and Religion
- Preliminary Material
- I Introduction
- II Article 14(1): The Scope and Content of the Right
- A States’ Obligation to Respect the Child’s Right to Freedom of Thought, Conscience, and Religion
- B The Measures Required to Ensure Effective Enjoyment of the Right
- C The Meaning of ‘Freedom of Thought, Conscience and Religion’
- 1 Broad and Expansive Terms
- 2 Thought and Conscience
- 3 Religion
- 4 The Scope of ‘Freedom’
- 5 Does Freedom Include a Child’s Right to Choose or Change Their Religion?
- 6 When Can Children Choose Their Own Religion?
- 7 Protection against Coercion
- 8 Protection from Discriminatory Practices, Citizenship Issues, and Religious Discrimination in Administrative Procedures
- D The Need for a Child-Oriented Understanding of Freedom of Thought, Conscience, and Religion
- III Article 14(2): Parents’ Role in the Exercise of the Right to Freedom of Thought, Conscience, and Religion
- A The Qualified Right to Parental Direction
- B The Scope and Limits of Parental Direction
- C Resolution of a Dispute between Parents over the Direction to be Provided by a Child
- D Controversial Religious Practices: Female Genital Cutting, Male Circumcision, Corporal Punishment, and the Refusal of Medical Treatment
- E Parental Direction and Children’s Education
- IV Article 14(3): The Limits of a Child’s Right to Freedom of Thought, Conscience, and Religion
- A An Onerous Burden
- B Prescribed by Law: A Requirement of Form and Substance
- C The Pursuit of a Legitimate Aim: A Reasonably Low Threshold
- D The Question of Proportionality: A Relatively High Threshold
- E Illustrations of the Test for Reasonableness
- 1 Can Restrictions on Islamic Headscarves Be Justified?
- 2 Will Restrictions on Other Manifestations of Religious Beliefs Be Justified?
- 3 Can the Provision of Medical Treatment in Contravention of a Child’s Religious Convictions Be Justified?
- 4 Do Children Have a Right to Conscientious Objection to Military Service?
- V Evaluation: A Vision Of Tolerance, Dialogue, and Respect
- Select Bibliography
- Art.15 The Rights to Freedom of Association and Peaceful Assembly
- Preliminary Material
- I Introduction
- II Analysis of the Text
- A Analysis in Context
- B States Parties Recognize the Rights of the Child: The Nature of States’ Obligations
- C Scope of the Rights to Freedom of Association and Peaceful Assembly
- D Permissible Limitations on the Right to Freedom of Association and Peaceful Assembly
- III Evaluation
- Select Bibliography
- Art.16 The Right to Protection of Privacy, Family, Home, Correspondence, Honour, and Reputation
- Preliminary Material
- I Introduction
- II The Protection against Arbitrary and Unlawful Interference
- III The Scope of the Interests Protected under Article 16
- A A Multidimensional Right
- B Privacy
- C Protection of a Child’s Family
- D Protection of a Child’s Home
- E Protection of a Child’s Correspondence
- F Protection against Unlawful Attacks on a Child’s Honour and Reputation
- IV Protection of the Law against Arbitrary or Unlawful Interference
- V Evaluation: The Need to Remain Mindful of Children’s Experiences
- Select Bibliography
- Art.17 The Mass Media and Children: Diversity of Sources, Quality of Content, and Protection against Harm
- Preliminary Material
- I Introduction
- II Analysis of Article 17
- A The Definition of ‘Mass Media’
- B A State’s Obligation to Recognize the Important Function Performed by the Mass Media
- 1 An Emphasis on the Media’s Helpful, Not Harmful, Role
- 2 Understanding the Important Function Performed by the Mass Media
- 3 The Need to Recognize the Potential for the Media to Have Potentially Conflicting Functions
- 4 The Need for a Strategy to Ensure the Mass Media Recognizes Its Important Functions with Respect to Children’s Rights
- C The Obligation to Ensure Access to Information from a Diversity of Sources
- D Access to a Diversity of National and International Media Sources
- E Material That Focuses on the Well-Being and Health of Children
- III Measures to Ensure Access to Information from a Diversity of Mass Media Sources
- A The Obligation to Encourage
- B The Specific Obligations of States
- 1 The Obligation to Encourage the Dissemination of Material of Social and Cultural Benefit to the Child
- 2 The Obligation to Encourage International Cooperation in the Production, Exchange, and Dissemination of Diverse Information and Material
- 3 The Obligation to Encourage the Production and Dissemination of Children’s Books: An Idiosyncratic Provision
- 4 The Obligation to Encourage the Mass Media to Have Particular Regard to the Linguistic Needs of Minority or Indigenous Children
- 5 The Obligation to Encourage Guidelines to Protect Children against Harmful Information and Material
- (a) A Recognition of the Mass Media’s Capacity to Harm Children
- (b) The Development of Appropriate Guidelines for the Protection of the Child
- (c) Information and Material That Are Injurious to the Well-Being of a Child
- (d) When Will the Content of Material Be Harmful to a Child?
- (e) The Need to Bear in Mind the Provisions of Articles 13 and 18
- IV Evaluation: Ambitious and Clumsy, Yet Enduring
- Select Bibliography
- Art.18 Parental Responsibilities and State Assistance
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: The Common and Primary Responsibility of Parents for the Upbringing and Development of a Child
- A The Nature of a State’s Obligation
- B The Primary Responsibility of Parents or Legal Guardians for the Upbringing and Development of a Child
- III Analysis of Paragraph 2: The Obligation of States to Assist Parents
- A A Collaborative Role for States
- B The Obligation to Provide Appropriate Assistance for Child Rearing
- IV Analysis of Paragraph 3: The Obligation to Provide Child-Care Services and Facilities for the Children of Working Parents
- V Evaluation: Deserving of More Attention
- Select Bibliography
- Art.19 The Right to Protection against All Forms of Violence
- Preliminary Material
- I Introduction
- II The Scope of Article 19
- III The Nature of a State’s Obligation under Article 19
- A Paragraph 1: The General Obligation to Take All Appropriate Measures
- B Paragraph 2: The Obligation to Take Preventive and Responsive Measures
- IV Evaluation: A Comprehensive and Innovative Protection Paradigm
- Select Bibliography
- Art.20 Special Protection for Children Deprived of Their Family Environment
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: Special Protection and Assistance for Children Deprived of Their Family Environment
- A The Beneficiaries of the Obligation
- B The Entitlement to Special Protection and Assistance
- 1 An Onerous Burden
- 2 The Question of Resources
- 3 A Progressive Conceptualization of Special Protection and Assistance
- 4 Understanding Special Measures
- III Analysis of Paragraph 2: The Obligation to Ensure Alternative Care
- IV Analysis of Paragraph 3: Options for Alternative Care and the Principles to Guide Placement
- V The Principles to Guide the Placement of Children in Alternative Care
- VI Evaluation: The Need to Recognize and Treat Every Child with Dignity
- Select Bibliography
- Art.21 Adoption
- Preliminary Material
- I Introduction
- II Analysis of Article 21
- A Chapeau: The Scope of Article 21 and the Obligation to Ensure That the Best Interests of a Child Are the Paramount Consideration
- 1 The Scope of Article 21
- 2 Reservations to Article 21
- 3 Recognize and/or Permit the System of Adoption
- 4 The Committee’s View of Adoption as an Alternative Form of Care
- 5 The Obligation to Ensure That the Best Interests of the Child Shall Be the Paramount Consideration
- (a) The Paramount Consideration
- (b) The Assessment of a Child’s Best Interests
- (c) Measures to Ensure a Child’s Best Interests
- (d) Specific Measures under Article 21
- (e) Measures to Preserve, and Allow Access to, Information about Biological Parents
- (f) Measures to Maintain Family Relations
- (g) Measures to Assess the Eligibility of Adoptive Parents
- (h) Measures to Prepare the Child and Adoptive Family for Adoption
- (i) Measures to Protect the Child’s Best Interests Post-adoption
- A Chapeau: The Scope of Article 21 and the Obligation to Ensure That the Best Interests of a Child Are the Paramount Consideration
- III Analysis of Paragraph (a): The Procedure for Authorizing Adoption
- A Mandatory Safeguards
- B So-called ‘Private’, ‘Independent’, or ‘Individual’ Adoptions
- C Authorization by Competent Authorities
- D Conditions Necessary for ‘Authorization’ of an Adoption
- IV Analysis of Paragraph (b): Inter-Country Adoption
- A The Subsidiarity of Inter-Country Adoption as a Child Protection Measure
- B Can Informal Care Be a ‘Suitable’ Alternative to Inter-Country Adoption?
- C Can Foster Care Be a ‘Suitable’ Alternative to Inter-Country Adoption?
- D Can Institutional Care Be a ‘Suitable’ Alternative to Inter-Country Adoption?
- E The Period of Time before Inter-Country Adoption Can Be Considered
- V Analysis of Paragraph (c): Safeguards and Standards in Inter-Country Adoptions
- VI Analysis of Paragraph (d): Measures to Prevent Improper Financial Gain in Inter-Country Adoptions
- VII Analysis of Paragraph (e): Promotion of Bilateral and Multilateral Agreements and Arrangements
- VIII Evaluation
- Select Bibliography
- Art.22 Refugee Children
- Preliminary Material
- I Introduction
- II Analysis of Article 22(1)
- A Scope of the Right
- B States Parties Shall Take Appropriate Measures to Ensure
- C Appropriate Protection and Humanitarian Assistance
- D Enjoyment of Applicable Rights Set Forth in the CRC
- 1 A Durable Solution?
- 2 Best Interests Principle (Article 3)
- 3 Participation (Article 12)
- 4 Right to Life, Survival, and Development (Article 6)
- 5 Family Unity/Reunification (Articles 9 and 10)
- 6 Identity (Article 7)
- 7 Education (Articles 28 and 29)
- 8 Protection of Children Separated from Their Family (Article 20)
- 9 Children with a Disability (Article 23)
- 10 Health (Articles 24 and 39)
- 11 Prohibition against All Forms of Abuse and Exploitation of Children (Articles 19 and 32–38)
- 12 Presumption against Detention (Article 37(b))
- E Enjoyment of Applicable Rights Set Forth in Other International Human Rights or Humanitarian Instruments
- III Analysis of Article 22(2)
- IV Evaluation: A Rights-Plus Framework
- Select Bibliography
- Art.23 Children with Disabilities
- Preliminary Material
- I Introduction
- II Analysis of Article 23
- A Paragraph 1: General Principles to Guide the Response to Children with Disabilities
- B Paragraph 2: Special Care for Disabled Children and Assistance for Carers
- 1 States’ Obligation to Recognize a Disabled Child’s Right to ‘Special Care’
- 2 The Obligation to Encourage and Ensure Appropriate Assistance to an Eligible Child or His or Her Carer, Subject to Available Resources
- (a) The Eligible Child and Those Responsible for His or Her Care
- (b) The Obligation to Encourage and Ensure the Extension of Assistance, Subject to Available Resources
- (c) The Obligation to Provide Assistance
- (d) The Requirement of an Application for Assistance
- (e) Assistance Must Be Appropriate to the Child’s Condition and the Circumstances of the Parents or Others Caring for the Child
- C Paragraph 3: The Obligation to Provide Free and Effective Assistance and Ensure Access to Education, Health, Rehabilitation, Employment, Training, and Recreation Services
- 1 The Scope of a State’s Obligation to Provide Assistance Free of Charge
- 2 The Obligation to Give a Child with a Disability Effective Access to Specified Forms of Assistance
- (a) Effective Access to and Receipt of Assistance
- (b) Forms of Assistance to Which Disabled Children Are Entitled
- (c) Education
- (d) Training
- (e) Healthcare Services
- (f) Rehabilitation Services
- (g) Preparation for Employment
- (h) Recreation Opportunities
- (i) The Principles That Guide the Delivery of Assistance to Children with a Disability
- D Paragraph 4: International Cooperation and Operation and Information Exchange
- III Evaluation of Article 23
- Select Bibliography
- Art.24 The Right to Health
- Preliminary Material
- I Introduction
- II Paragraph 1: The Obligation of a State to Recognize a Child’s Right to Health
- A The Scope of the Right to Health
- 1 The Highest Attainable Standard of Health
- 2 The Nexus with the Social Determinants of Health
- 3 Health as Freedoms and Entitlements
- 4 An Entitlement to Facilities for the Treatment and Rehabilitation of Health
- 5 The Qualitative Nature of the Entitlements under the Right to Health: The 3AQ Model
- B The Nature of a State’s Obligations with Respect to a Child’s Right to Health
- 1 The Obligation to Strive to Ensure that No Child Is Deprived of His or Her Access to Health Care Services
- 2 The Obligation to Respect, Protect, and Fulfil
- 3 The Obligation to Take ‘All Appropriate Measures’
- 4 Using the Work of the CRC Committee to Develop an Understanding as to the Nature of Appropriate Measures
- C The Progressive Nature of the Obligation and the Reality of Resource Constraints
- A The Scope of the Right to Health
- III Paragraph 2: Specific Measures Required to Secure a Child’s Right to Health
- A The Obligation to Diminish Infant and Child Mortality
- B The Obligation to Provide Medical Assistance and Health Care, Especially Primary Health Care
- C The Obligation to Combat Disease and Malnutrition
- D The Obligation to Provide Pre-Natal and Post-Natal Health Care for Mothers
- E The Obligation to Raise Awareness and Ensure Access to Information Concerning Children’s Health
- F The Obligation to Develop Preventive Health Care, Guidance for Parents, and Family Planning Education and Services
- IV Paragraph 3: The Obligation to Abolish Harmful Traditional Practices
- V Paragraph 4: The Obligation to Promote and Encourage International Cooperation
- VI Evaluation: The Need for Action
- Select Bibliography
- Art.25 The Right to Periodic Review
- Preliminary Material
- I Introduction
- II Analysis of Article 25
- III Evaluation
- Select Bibliography
- Art.26 The Right to Social Security
- Art.27 The Right to a Standard of Living Adequate for the Child’s Development
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: The Right to a Standard of Living Adequate for the Child’s Development
- A The Meaning of the Right to a Standard of Living Adequate for the Child’s Development
- 1 The Nexus with the Child’s Development
- 2 A Composite Right Including Nutrition, Shelter, and Clothing
- 3 A Right to Water and Sanitation
- 4 A Right to Continuous Improvement in Living Conditions
- 5 The Omission of an Explicit Right to Be Free from Hunger
- 6 An Adequate Standard of Living and Freedom from Poverty
- 7 Assessing Adequacy
- 8 The Nature of States’ Obligations
- 9 The Role of Article 4
- A The Meaning of the Right to a Standard of Living Adequate for the Child’s Development
- III Analysis of Paragraph 2: The Primary Responsibility of Parents
- IV Analysis of Paragraph 3: The Obligation to Assist Parents
- V Analysis of Paragraph 4: The Obligation to Secure Recovery of Parental Maintenance
- VI Evaluation: From Child-Centrism to Child Co-Creation
- Select Bibliography
- Art.28 The Right to Education
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: The Right to Education
- A A Child’s Right and Not Merely an Interest
- B The Meaning of Education
- C The Qualitative Elements of the Right to Education: The 4A Approach
- D Understanding a State’s Obligation to Recognize the Right to Education
- III Specific Measures to Realize the Right to Education
- A Levels of Education
- 1 The Provision of Compulsory and Free Primary Education
- 2 The Development of Secondary Education, Including General and vocational Education
- 3 Accessible Higher Education
- A Levels of Education
- IV Analysis of Paragraph 2: School Discipline
- V Analysis of Paragraph 3: International Cooperation in Matters Relating to Education
- VI Evaluation: More Than a Good Investment
- Select Bibliography
- Art.29 The Aims of Education
- Preliminary Material
- I Introduction
- II Analysis of Article 29(1): The Aims of Education
- A The Scope of the Obligation: Beyond the School Gate?
- B The Specific Aims of Education: A Complex and Contested Constellation of Values and Principles
- 1 The Right to a Balanced and Holistic Education
- 2 The Development of the Child’s Personality, Talents, and Mental and Physical Abilities to His or Her Fullest Potential
- 3 Respect for Human Rights and Fundamental Freedoms, and for the Principles Enshrined in the UN Charter
- 4 Respect for Parents, Cultural Identity, Language and Values, National Values, and Different Civilizations
- 5 Preparation for a Responsible Life in the Spirit of Peace, Equality, and Diversity
- 6 The Development of Respect for the Natural Environment
- III Analysis of Article 29(2): Private Educational Institutions and the Aims of Education
- IV Evaluation: A Transformative Agenda
- Select Bibliography
- Art.30 Cultural, Linguistic, and Religious Rights of Minorities and Indigenous Children
- Preliminary Material
- I Introduction
- II Analysis of Article 30
- A The Beneficiaries: Children from Minority or Indigenous Groups
- B The Nature of a State’s Obligations
- C Content of the Right: Enjoyment of Culture, Religion, and Language in Community with Other Group Members
- III Evaluation: A Dynamic Provision
- Select Bibliography
- Art.31 The Right to Rest, Leisure, Play, Recreation, and Participation in Cultural Life and the Arts
- Preliminary Material
- I Introduction
- II Article 31(1): The Rights to Rest, Leisure, Play, Recreational Activities, and Cultural Life
- A Scope of the Rights
- 1 Recognizing Interdependence
- 2 The Right to Rest
- 3 The Right to Leisure
- 4 The Right to Engage in Play
- 5 The Right to Engage in Recreational Activities
- 6 The Right to Participate Freely in Cultural Life and the Arts
- (a) Freely Participate
- (b) Cultural Life and the Arts
- (c) The Requirement of Age Appropriateness
- (d) Protection against Inappropriate Activities
- (e) Promotion of Reasonable Risk-Taking
- (f) A Qualitative Framework for Understanding the Scope of Article 31 Rights
- (g) Reasonable Limitations on the Rights under Article 31
- B States’ Obligations with Respect to Article 31 Rights
- A Scope of the Rights
- III Article 31(2): The Specific Obligations of States with Respect to Participation in Cultural and Artistic Life, Recreational and Leisure Activities
- IV Evaluation: A Transformative but Justifiable Agenda
- Select Bibliography
- Art.32 The Right to Protection from Economic Exploitation
- Preliminary Material
- I Introduction
- II Analysis of Article 32
- A Paragraph 1: Right of the Child to Be Protected from Child Labour
- B Paragraph 2: Measures to Protect Children from Child Labour
- 1 The Obligation to Take Legislative, Administrative, Social, and Educational Measures
- (a) The Committee’s Approach
- (b) Legislative Measures
- (c) Administrative Measures
- (d) Social Measures
- (i) Social Protection Measures to Increase and Stabilize Household Income
- (ii) Making Education a Viable Alternative to Work
- (iii) Mortality Reduction Initiatives
- (iv) Trade Sanctions and Product Boycotts
- (v) Encourage and Support Private Sector and NGO Initiatives
- (vi) Provision of recovery and Reintegration Programmes
- (e) Educational Measures
- 2 The Obligation to Have Regard to Relevant Provisions of Other International Instruments
- 3 Specific Measures Required for Protecting Children from Child Labour
- 1 The Obligation to Take Legislative, Administrative, Social, and Educational Measures
- III Evaluation
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- Art.33 Protection from Narcotic Drugs and Psychotropic Substances
- Preliminary Material
- I Introduction
- II The Obligation to Protect Children from the Illicit Use of Narcotic Drugs and Psychotropic Substances
- A Illicit Use
- B Narcotic Drugs and Psychotropic Substances as Defined in International Treaties
- C The Scope of the Obligation to Protect Children from the Illicit Use of Narcotic Drugs and Psychotropic Substances
- 1 Understanding Protection as a Preventive and Rehabilitative Obligation
- 2 The Meaning of the Obligation to Take ‘All Appropriate Measures’ to Protect Children from the Illicit Use of Narcotic Drugs and Psychotropic substances
- (a) A Tripartite Obligation
- (b) The Question of Resources
- (c) The Meaning of ‘Appropriate Measures’
- (d) General Measures to Protect Children from the Illicit Use of Proscribed Substances: Insights from the CRC Committee
- (e) Legislative and Administrative Measures
- (f) Appropriate Social and Educational Measures
- (g) Appropriate Educational Measures
- III The Obligation to Prevent the Use of Children in the Production and Trafficking of Proscribed Substances
- IV Evaluation: An Alternative Lens
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- Art.34 Protection from Sexual Exploitation and Sexual Abuse
- Preliminary Material
- I Introduction
- II Analysis: The Scope of Article 34
- A The Practices from Which a Child Must Be Protected
- 1 All Forms of Sexual Abuse and Sexual Exploitation
- 2 The Specific Practices against Which Children Must Be Protected
- A The Practices from Which a Child Must Be Protected
- III Analysis: The Obligation of States
- A The General Obligation to Protect Children
- B The Obligation to Prevent Specific Forms of Abuse
- C The Obligation to Use All Appropriate Measures
- 1 The Discretion of a State and Its Limits
- 2 The Recommendations of the Committee
- 3 National Measures
- 4 Bilateral and Multilateral Measures
- IV Evaluation: A Constant and Evolving Challenge
- Select Bibliography
- Art.35 Protection against the Abduction, Traffic, and Sale of Children
- Preliminary Material
- I Introduction
- II Analysis of the Text
- A Scope of the Provision and Nature of the Obligation
- B Principles of General Application
- C States’ Specific Obligations
- 1 Obligations of Identification, Protection, and Support
- (a) Identification of Child Victims
- (b) Protection from Further Harm
- (c) Provision of Care and Support
- (d) Protection of Privacy
- (e) Non-Criminalization of Child Victims
- (f) Detention of Trafficked Children
- (g) Appointment of a Guardian
- (h) Child Victims in Criminal Proceedings
- (i) Victims with Special Needs
- 2 Obligations Related to Remedies and Return
- 3 Obligations of an Effective Criminal Justice Response
- 4 Specific Obligations of Prevention
- 5 Obligations Relating to Policy, Cooperation, and Engagement
- 1 Obligations of Identification, Protection, and Support
- III Evaluation
- Select Bibliography
- Art.36 Protection against All Other Forms of Exploitation
- Preliminary Material
- I Introduction
- II Analysis of Article 36
- A The Nature of a State’s Obligation to Protect Children against Exploitation: ‘States Parties Shall Protect’
- B The Meaning of ‘Exploitation’
- III Evaluation: An Article Deserving of More Attention
- Select Bibliography
- Art.37 Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty
- Preliminary Material
- I Introduction
- II Analysis of Article 37
- A A State’s General Obligation under Article 37
- B The Question of Resources
- C Paragraph 37(a): The Prohibition against Torture and Other Ill-Treatment
- 1 A Jus Cogens Norm
- 2 The Application of the Prohibition to the Actions of Private Persons
- 3 The Absolute Nature of the Prohibition
- 4 States’ Obligations under the Prohibition against Torture and Other Ill-Treatment
- (a) The Obligation to Prohibit Torture and Other Ill-Treatment
- (b) The Obligation to Take Special Measures to Prevent Torture and Other Ill-Treatment
- (c) The Obligation to Train and Educate
- (d) The Obligation to Undertake an Effective Investigation
- (e) The Obligation to Prosecute and Punish Offenders
- (f) Compensation and Rehabilitation for Victims
- 5 The Meaning of Torture, Cruel, Inhuman, and Degrading Treatment
- D Paragraph 37(a): The Prohibition against Capital Punishment and Life Imprisonment
- E Paragraph 37(b): Protection against Arbitrary or Unlawful Deprivation of Liberty
- F Paragraph 37(c): The Treatment of Children Deprived of Their Liberty
- G Paragraph 37(d): Children’s Right to Challenge the Deprivation of Their Liberty
- 1 The Right to Prompt Access to Legal and Other Appropriate Assistance
- 2 The Right to Challenge Deprivation of Liberty
- (a) A Fundamental Entitlement
- (b) ‘The Legality of the Deprivation’
- (c) ‘Before a Court or Other Competent, Independent and Impartial Authority’
- (d) The Right to a Prompt Decision
- (e) Is There an Obligation on a State to Obtain Judicial Authorization for Any Deprivation of Liberty?
- (f) Is There an Obligation on a State to Disclose Reasons for Any Deprivation of Liberty?
- (g) Is There an Obligation to Provide Compensation for Unlawful Deprivation of Liberty?
- III Evaluation: The Need to Be Mindful of Children’s Experiences
- Select Bibliography
- Art.38 The Rights of Children in Armed Conflict
- Preliminary Material
- I Introduction
- II Analysis of Specific Phrases
- A Paragraph 1: The Undertaking to Respect and to Ensure Respect for the Rules of International Humanitarian Law
- 1 The Importation of Humanitarian Law
- 2 The Perceived Tension between Human Rights Law and Humanitarian Law
- 3 The Undertaking ‘to Respect and to Ensure Respect’
- 4 The ‘Rules of International Humanitarian Law Applicable to Them in Armed Conflicts Which Are relevant to the Child’
- 5 The Rules of International Humanitarian Law Relevant to the Child
- 6 Protection of Child Combatants under International Humanitarian Law
- B Paragraph 2: The Obligation to Take All Feasible Measures to Ensure Persons under Fifteen Do Not Take a Direct Part in Hostilities
- C Paragraph 3: The Obligations to Refrain from Recruiting Any Person under Fifteen into a State’s Armed Forces, and Where Persons Fifteen or Older Have Been Recruited to Endeavour to Prioritize the Oldest
- 1 Overview
- 2 The Obligation to Refrain from Recruiting Persons under Fifteen into a State’s Armed Forces
- 3 The Obligation to ‘Endeavour to Give Priority to the Oldest’
- 4 Individual Criminal Responsibility for Adults Who Unlawfully Conscript, Enlist, or Actively Use Children under the Age of Fifteen in Hostilities
- D Paragraph 4: The Obligation to Take All Feasible Measures to Ensure Protection and Care of Children Affected by Armed Conflict
- 1 Overview
- 2 ‘In Accordance with Their Obligations under International Humanitarian Law to Protect the Civilian Population in Armed Conflicts’
- 3 ‘States Parties Shall Take All Feasible Measures’
- 4 ‘To Ensure Protection and Care of Children Who Are Affected by an Armed Conflict’
- 5 The Rules of International Humanitarian Law Relevant to the Protection of Child Civilians Affected by Armed Conflicts
- (a) The Principle of Special Protection
- (b) Safety Zones, Corridors of Peace, and Days of Tranquillity
- (c) Evacuation
- (d) Right to Care and Aid
- (e) Children and their Families
- (f) Unaccompanied Children
- (g) Education
- (h) Arrested, Detained, or Interned Children
- (i) Other Feasible Measures: Looking beyond Settled Rules
- A Paragraph 1: The Undertaking to Respect and to Ensure Respect for the Rules of International Humanitarian Law
- III Conclusion: The Future of Article 38
- Select Bibliography
- Art.39 The Right to Reintegration and Recovery
- Preliminary Material
- I Introduction
- II Analysis of Article 39
- A The Beneficiaries of Article 39
- B The Scope of the Right
- C The Nature of a State’s Obligations
- 1 An Onerous Obligation
- 2 The Question of Resources
- 3 The Meaning of ‘All Appropriate Measures’
- (a) The Consistency Principle
- (b) The Effectiveness Principle
- 4 The Special Status of Armed Conflict
- 5 An Environment Which Fosters Health, Self-Respect, and the Dignity of the Child
- III Evaluation: More than a Remedial and Restorative Provision
- Select Bibliography
- Art.40 The Rights of the Child in the Juvenile Justice System
- Preliminary Material
- I Introduction
- II Analysis of Paragraph 1: General Principles for the Administration of Juvenile Justice
- A States’ Obligation to ‘Recognize’
- 1 An Obligation to Take All Appropriate Measures
- 2 The Need for Awareness Raising and Data Collection
- 3 The Question of Resources
- 4 The Beneficiaries of Article 40
- 5 The Meaning of ‘Penal Law’
- 6 The General Principles Which Inform the Treatment of Children in Conflict with the Law
- (a) The Right to Be Treated ‘in a Manner Which Is Consistent with the Promotion of the Child’s Sense of Dignity and Worth’
- (b) The Right to Be Treated in a Manner that Reinforces ‘the Child’s Respect for the Human Rights and Fundamental Freedoms of Others’
- (c) The Obligation to Take ‘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’
- B Paragraph 40(2): Specific Rights Relevant to the Administration of Juvenile Justice
- C Paragraph 2(b): The Minimum Guarantees for the Administration of Juvenile Justice
- 1 An Illustrative List
- 2 The Presumption of Innocence
- 3 The Right to Be Promptly Informed of Charges and Have Legal or Other Appropriate Assistance
- 4 The Right to Legal or Other Appropriate Assistance
- 5 The Right to a Fair Hearing without Delay in the Presence of Parents
- (a) The Right to a Fair Hearing in Criminal Proceedings
- (b) To Have the Matter Determined without Delay
- (c) By a Competent, Independent, and Impartial Authority or Judicial Body
- (d) In a Fair Hearing According to Law
- (e) In the Presence of Legal or Other Appropriate Assistance
- (f) In the Presence of Parents unless This Is Contrary to a Child’s Best Interests
- 6 The Right against Self-Incrimination and the Right to Cross-Examine Witnesses
- 7 The Right to Appeal
- 8 The Right to an Interpreter
- 9 The Right to Privacy
- D Paragraph 40(3): Special Laws and Procedures, the Age of Criminal Responsibility, and Diversionary Measures
- 1 The Obligation to Establish Special Laws and Procedures for Children
- 2 The Obligation to Establish a Minimum Age of Criminal Responsibility
- 3 The Obligation to Promote Diversionary Measures
- E Paragraph 40(4): Alternatives to Institutional Care
- A States’ Obligation to ‘Recognize’
- III Evaluation: The Challenge of Rethinking Juvenile Justice
- Select Bibliography
- The Optional Protocol on Children and Armed Conflict
- Preliminary Material
- I Introduction
- II Drafting History
- III Analysis of Specific Articles
- A Article 1: Participation in Hostilities
- B Article 2: Compulsory Recruitment
- C Article 3: Armed Forces, Voluntary Recruitment and Military Schools
- D Paragraph 3(1): The Minimum Age for Voluntary Recruitment
- E Paragraphs 3(2), (3), and (4): The Minimum Age Declaration and Volunteerism
- F Paragraph 3(5): Military Schools
- G Article 4: Recruitment by Armed Groups
- H Article 5: Savings Clause
- I Article 6: National Implementation, Dissemination, and Reintegration
- J Article 7: International Cooperation and Assistance
- K Article 8: Compliance Mechanism
- L Article 9: Signature and Ratification
- M Article 10: Entry into Force
- N Article 11: Denouncement
- O Article 12: Amendments
- P Article 13: Deposition and Circulation
- IV Evaluation
- Select Bibliography
- The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography
- Preliminary Material
- I Introduction
- II Drafting History
- III Analysis of Specific Articles
- A Article 1: The Prohibition of the Sale of Children, Child Prostitution, and Child Pornography
- B Article 2: Definitions
- 1 An Unusual but Helpful Inclusion
- 2 Sale of Children
- 3 Child Prostitution
- 4 Child Pornography
- 5 Child Sex Tourism (Sexual Exploitation of Children in Travel and Tourism)
- C Article 3: The Obligation to Criminalize
- D Article 4: Jurisdiction
- 1 Paragraph 1: A Problematic Focus on Territory Rather Than Jurisdiction
- 2 Paragraph 2: Active Nationality and Passive Personality (Nationality) Jurisdiction
- 3 Paragraph 3: Limited Obligation to Exercise Extraterritorial Jurisdiction with Respect to Nationals
- 4 Paragraph 4: The Possibility of Universal Jurisdiction
- E Article 5: Extradition
- F Article 6: Mutual Legal Assistance
- G Article 7: Seizure and Confiscation
- H Article 8: Protection of Victims during Proceedings
- 1 Paragraph 1: Safeguards Required for Child Victims during Criminal Proceedings
- (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 Manner 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 Paragraph 2: Uncertainty as to the Age of a Person
- 3 Paragraph 3: Best Interests of the Child as the Primary Consideration
- 4 Paragraph 4: Training for Persons Working with Child Victims
- 5 Paragraph 5: Protections of Persons/Organizations Working with Child Victims
- 6 Paragraph 6: Protection of the Accused’s Right to a Fair and Impartial Trial
- 1 Paragraph 1: Safeguards Required for Child Victims during Criminal Proceedings
- I Article 9: Preventive and Assistance Measures
- J Article 10: International Cooperation
- 1 Paragraph 1: Cooperation with Respect to Law and Order Issues
- 2 Paragraph 2: Cooperation with Respect to Recovery, Reintegration, and Repatriation of Child Victims
- 3 Paragraph 3: Cooperation to Address the Causes of the Sale of Children, Child Prostitution, and Child Pornography
- 4 Paragraph 4: An Obligation on States to Provide Assistance to Other States
- K Article 11: Savings Clause
- L Article 12: Reporting Obligations
- M Article 13: Signature and Ratification
- N Article 14: Entry into Force
- O Article 15: Denunciation
- P Article 16: Amendment
- Q Article 17: Deposition and Circulation
- IV Evaluation: The Need for a Commitment to Action
- Select Bibliography
- Further Material
