Keeping Promises: The case for the Convention’s de facto inclusion in domestic laws
In 1979, on the eve of the International Year of the Child, the Government of Poland launched a proposal for the world community to draft what would eventually become the Convention on the Rights of the Child. A decade later, the Convention was adopted by the United Nations General Assembly. Today it is the most widely agreed-upon international human rights document in existence, ratified by 193 countries. Despite the many years and extensive debates that went into creating the Convention, its drafters were unable to mandate one critical aspect for the enforcement of an international treaty: its de facto incorporation into domestic law upon ratification.
In some countries, an international convention or treaty, once ratified, is automatically integrated into domestic law. But these countries are in the minority. In many States, an international agreement must specifically be adopted in order to become part of domestic law. Article 4 of the Convention calls on States parties to “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.” However, it also maintains that the treaty’s implementation is conditional on the availability of resources or international cooperation. Since many States parties currently do not have sufficient resources or are beset by fragile governments, the rights of many children remain unimplemented.
Requiring States take responsibility
Article 4 was drafted on the good-faith assumption that States parties would be keen to implement the Convention. Unfortunately, this has not always proven to be the case. I have observed that many countries throughout the world prefer to allocate ‘available resources’ to almost anything but children, with defense spending routinely consuming a large portion of fiscal expenditures. Often, it is these States parties that show more zeal in avoiding their responsibilities than in partnering with the Committee on the Rights of the Child in promoting, protecting and supporting children’s rights. In light of this inactivity, I believe the international community should consider modifying article 4 of the Convention, requiring States parties to make the treaty part of their domestic law within a specified period of time after it has come into force for the States concerned.
Article 42 also stipulates that States parties make the Convention’s principles and provisions widely known to both adults and children by appropriate and active means. Twenty years after its adoption, many citizens throughout the world still do not know about the Convention, particularly those constituencies who most urgently need to know about it – children, the poor, the media and the judiciary. In this era of globalization, information can be disseminated more rapidly and widely than ever, and educating people about human rights should be one of the easiest provisions to realize. Almost all countries of the world have a vibrant electronic media, while the mobile phone industry has revolutionized telecommunications in even the most remote regions. Usage of these media alone to spread awareness about the principles and provisions of the Convention could spur implementation of children’s rights.
There are several reasons – political, social and economic – that contribute to the failure of implementing the Convention. Chief among them is the willful bypassing of children by political parties because they do not have voting rights and therefore do not need to be wooed, the powerlessness of children to make their issues known to Government and general sentiments that children are subservient to adults and thus somehow have rights inferior to those of the adults. Furthermore, people in some parts of the world, particularly in Asia and in Muslim countries, tend to dismiss many of the human rights enshrined in international law as part of a ‘Western agenda’. This perception leads governments and communities to resist implementing the Convention, thereby failing to connect with several of its provisions.
Facing cultural differences
In some countries there is firm opposition to the adoption of article 1, which designates all individuals under the age of 18 years as children. This provision is no doubt flexible, it also includes a stipulation that the age is pending local laws, and must have generated immense deliberations at the time of its adoption. Despite this consensus, throughout the world many are reluctant to accept that 18 is the age of adulthood. Muslims may cite sharia provisions that link adulthood with reaching puberty, and they maintain that fixing an ‘arbitrary’ age of 18 years is thus contrary to sharia. Similarly, article 16 – which forbids unlawful interference with a child’s privacy, family, home or correspondence – can be unsettling to parents and guardians in both developing and developed countries, who regard it as an undue intrusion into their right to supervise the lives of their children.
For the Convention and its principles to take root and continue to improve the well-being of children, the full range of stakeholders who support it must make a concerted effort to identify and demonstrate the links between its principles and local customs, religions and cultures. The Convention should be recognized for what it is – a complement to, not a destruction of, the development of healthy families, strong communities, stable countries and a better world. An academic review of the development of laws and international norms, while important for the establishment of a global system of accountability, may not suffice in promoting the Convention in rural locations or countries whose societies and laws are not based on Western notions of governance. The Convention is an exemplary document, and the world community can justly be proud of it – but we still have a long way to go before we can see it fully and properly implemented.
Anees Jillani is a children’s rights activist, based in Pakistan. Mr. Jillani is a founding member of the Society for the Protection of the Rights of the Child (SPARC) and currently serves on its board. He has authored several books on children’s rights, child labour and juvenile justice. A practising lawyer, he is enrolled to practise before the Supreme Court of Pakistan and is also a member of the District of Columbia Bar.
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