Introduction

« There is no way to thoroughly enumerate the various ways in which chlidren around the world are economically exploited and physically mistreated. But the numbers are great - and the suffering widespread. Behind the hideous imagery - of children beaten or sexually abused by parents; ravaged beyond their yearrs by hard living and drug abuse on the streets; maimed by landmines or turned into killers by war; stricken with AIDS - are the all-too-common struggles against disease, hardship, and family or social traditions that compromise children’s humanity or subject them to physical and emotional suffering.

While victims of justice and poverty have always had trouble being heard, none have more trouble, historcally, than children. Whether exploited as child labourers or prostitutes, drafted as young teenagers into armed forces, forced as young girls into a lonely life as domestic workers, deprived of an education to work on the family farm, or denied adequate nutrition and health care, children need help and protection from adult world that perpetrates most of the abuses ».

This, Ladies and Gentleman, was a quotation from the « United Nations Background Note on Childre’s Rights » (1995) and you can find it on the Human Rights - website. It gives a grim picture of the situation and though il has been written in 1995, we know that there are great parts of the world were the situation has not yet improved. Nevertheless just over a month from now, the Convention on Children’s Rights in having its 10th anniversary. So was it all in vain? Did nothing change during all this years? Didn’t we succeed in improving even the most harrowing situations children have to endure?

Well, I do not think it is as bad as that. Of course, an awful lot has still to be done but even after 10 years we are just in the beginning of new developments. We should not forget that it looks us o long time to develop all the instruments we now do have at our disposal. And each of these instuments was o new step in the way of thinking about children and the situation they are in. When we look back to the genesis of all these international instruments we see a growing awareness on the position of the child and its rights.

The three UN-INSTRUMENTS: the child as object for care and protection

In the beginning, back in 1948, the Universal Declaration on Human Rights and the Convenants (1966), based on this declartion, mentioned the child and its family and the special protections they deserve. Even more so: in 1959 the General Assembly of the United Nations proclaimed the « Declaration of the rights of the child ». And it did so because, as the preamble says:

The child, by reason of its physical and mental immaturity, needs special sageguards and care, including appropriate legal protection, before as well as after birth.

And

The need for such special safeguards has been stated in the Geneva Declarationof the Rights of the Child of 1924, and recognised in the Universal Declaration of Human Rights and in the statutes of specialised agencies and international organisations concerned with the welfare of children.

Already in 1924? Yes, we almost forgot about it, but in that year the General Assembly of the League of Nations accepted a declaration on the Rights of the child, prepared by the Save the Cildren Internation Union - and forgoten sice than along with the league itself.

But, we can conclude, that there was a growing awareness, that the child deserved an other kind of special attention. The simple fact, that there has been proclaimed a special declaration on Children’s Rights apart from the Universal Declaration on Human Rights was a significant step. It stressed, that although everybody agreed that the General Rules on Human Rignts were as well applicable to children, the child « by reason of itd physical and mental immaturity, needs special sageguards and care, includin appropriate legal protection, before as well as after birth ». You will notice, that the declaration, as did the Universal Declaratiinand the Convention on Human Rights, consider the child as a object of care and protection as it is physically weak, mental immature and economically dependent from adults.

But there was more to happen: in 1980 at the venue of the 6th Un-Congress in Caracas it was recommended, that the UN themselves « should be requested to develop standard minimum rules for the administration of juvenile justice ... « And this was remarkable, as till then the UN showed no special interest in matters of juvenile delinquency. It was the UN Crime Prevention and Criminal Justice Branch who did the preparatory work. After being discussed all over the world, the draft was accepted in 1985 at the UN-congress in Milan, but is referred to as the Beijing-Rules, the place of the final preparatory meeting.

These rules mainly consist of reulations that deal with the proceedings in juvenile adjudication. They try to express an idea of a juvenile justice system with as little deprevation of liberty as possible. In this it folows the universal trend in progressive crime policy. My collezgue Wille McCarney will deal in detaol with the substance of these rules. Here we should only make the remark, that the wordin of the rules are a littel « soft » and not too binding, giving quite somme room for national authorities « to implement (them) in context of economic, social and cultural conditions ». However, this is understandable in the interest of having them accepted as widely as possible.

In the year, the bejing Rules were adopted, the UN-congress asked for « the development of standards for the preventionof juvenile delinquency ». It was again the Criminel Justice Branch that, together with the Committee onCrime Prevention and Control has been working on the draft. This draft was accepted bu the UN-congress in Havana and by the Genral Assembly in 1990 and now is know as the « Riyadh Guidelines » but are officially baptised: « Guidelines for the Preventionof Juvenile Delinquency ».

These guideline sare again a prove of the growing concern within the bodies of the UN with the probles, the treatment and the wellbeing of young persons. The problem of crime-prevention of adults already has been given a lot of attention within the UN, but now the same was done for juveniles.

There was still more to camle: also in Milan in 1985 the Criminal Justice Branch was given the mandate » for the development of UN rules for the protection of juveniles deprived of their liberty ». For adults there existed already since 1955 the « Standard minimum rules for the treatement of prisoners » but now it was left, that juveniles deprived from their liberty, should be dealt with in a more specific way with for them adapted provisions ans safeguards. And this not only for criminal youth, but also for those youngsters, who were placed in institutions for welfare reasons. Along with the Riyadh Guidelines these Standard Minimum Rules were adopted by congress and General Assembly in 1990.

However welcom these rules and guidelines have been =, still the child was the object of care and concern: in the Riyadh Guidelines it wad the family, that was considered to be the key issue in the interest of prevention.

But this was to after with the Convention on the Rights of the Child: at long last it was the child itself tht was the key issue. The child was the one who had its own rights and was fully recognised as being equal to adults in all respects.

A short detour to Internation Institutional law

But as by now we have been discussing declarations, guidelines, rules and conventions, mybe we should have a quick look into the juridical nature of these international instruments.

Specialists in International Institutional law mostly see differences between « Recommaendtins » and « Declartions » although neither of them are legally binding and both have more or less the same aim: to invite the members of the international organisation to change a existing situation or to clear a particular state of affairs.

Neverthless, a « declartions » will usually have a grater influence: the greater solemnity attached to a declaration indicates a strong desire of the organisation to see the principals enunciated being observed. This desire is also shown by the fact, that some declartions provide for a procedure to review their implementation. Additionally, declarations usually influence the further development of legislation in the member states. So we must come to the conclusion that the UN, by proclaiming the « Declartion of the Rights of the Child » has chosen a strong, but - as we shall see - not the strongest instrument available.

This strongest instrument is a « convention ». Originally international treaties, and that is the real nature of a convention, were drafted and concluded by governments, mostly of two, sometimes of more states. However, since the establishmend of international organisations at the begining of this century ( f..i. the I.L.O.in 1919) it has gradually become accepted, that making international treates and more special the multilateral treates of a law-making nature, usually are called « convention».

So, as « conventions « are treaties, they profit from the traditional rules of international law on the binding force of treaties. But also with its disadvantages: one of these disadvantages is the fact, that their strength depends for a great deal from the number of states that ratify the treaty.

But the modern « convention » does have an other special and important property: they are not primarily contracts between states, but they have in addition the nature of laws, drafted by the international organisation. Consequently they constitute, even before their ratification a final formulation of the rules, wanted bu that organisation and hence within its legal order.

Even more strength will the conventionhave, if the organisation is involved in the implementation of the convention: in our case: the « Committee for the Rights of the Child ».

Scientists consider conventions as important legal acts, parhaps even the most important types of modern international legislation. Conventions are particular influential when the drafting organisation enjoys a great authority in the field in question. I think we all can agree, that the esteem og the UN in the field of human rights is extraordinary high and so we can come to the conclusion that, seen from the point of international law, the convention is a very strong instrument.

Question rmains aboutthe legal statuts of the « Rules » and the « Guidelines ». However much they are called « rules », according to the definition of international law, we must conclude that they are « recommendations » and consequently have the same legal status as a declaration but are missinf the solemnity, wwhich is the stamp of declaration. A recommendation finds its strength mostly in the way it is delinquency: wwe can conclude that it is their unanimous acceptance that provides them with the necessary strenght.

The making of the Convention

Back to our convention: already in 1978 it was Poland that presented a draft for the convention at the Commission of Human Rights. It is remarkable, that the work on hte convention started already some years earlier than the preparations of the Beijing Rules but, as far as I have found, they did not influence each other at all.

Though the idea of a convention was widlely welcomed, there also was some fundamental criticism.

The question was raised, why there should be a convention as already a Declaration ont the Rights of the Child did exist. It was even feared that a convention would diminish the impact of the Declaration. The persuasive moral force of a convention would be weak and the more so if - as usual - hte convention only would be ratified by a limited number of states.

Some states stressed that a lot of the principles already were embodied in the mandates of agencies like the ILO and WHO or in more juridical wordings, in the instuments like the Convenants on Civil and political Rights and Economic, Social and Cultural Rights. In their view a draft convention on the rights of the child must consist of timely, up to date and concrete principles accompanied by practical guidelines for application and supplementary to already existing instuments and activities, in order to avoid unnecessary duplications.

Or, as the representative of Zambia stated: « As a human person, the child has a much right as anu other person to protection and enjoyment of the fundamental human rights proclaimed int the Universal declaration on Human Rights and in the international Convenants on Human Rights ». (By the way: when I take his remark to strict letter, he also must find the Declaration on the Rights of the Child superfluous.)

Also the lack of an inventory of recognised principales concerning children as one of the genaral points of criticism. It was argued, tha before beginning with the drafting of a convention, their first should be made a inventory of these recognised rights for children in already existing treaties (ILO, WHO and others).

DCI/Unicef in their briefing kit (1988) talk about: « the often severe criticism levelled against the proposal text « but they add: « ... luckily this criticism did not lead to the abandonment of the project, but the setting up of working group to reviw and formulate the txt of a Convention ».

This working group indeed came up with a draft text, that was dealt with in two readings. UN-bodies and Non Governmental Organisations gave important contributions. It look many years with long and difficult discussions about very fundamentat questions, but strangely enough most of the above mentioned fundamental points were not raised agin. Apparently the desire to come to a convention was stronger than to sustain these objections.

However, I want to give an answer to one of the fundamental questions: « Why should there be a Convention as there is already a Declaration? « The answer in my opinion should be: « Because a convention is a far stronger instument than a declaration and, as we shall see, as far as children’s rights are concerned, we need the strongest instrumetn available! »

But there were other objections.

There was the objection, that the normative value of the draft text was to weak among other things because a general reference to other Human Rights instruments was missing. This point has been raised several times but at last, for procedural reasons, was not inserted in the final text.

Also it was deplored, that the draft did not provide the possibilities to file a complaint against an other state, as the International Convention on Civil and Political Rights does, neither this same possibility for individuals against states.

It was noticed that in some articles, the rights of the child were formulated « softer » than in already existing traties. And indeed, the wordin of the Convention is not always very strong, but I think we must here recall the statement of the representative of Portugal: « ... there would be certainly articles where a different wording could have been desired and others where it would have been desirable to go further - that was the price that inevitably had to be paid to obtain a convention of universal scope ». And I think he was right : de moral value of a convention depends greatly on its acceptance. The quality and the quantityb of the states that ratify the convention determine whether or not the convention has the authority it needs.

In this context it was pointed out by those, who were pessimistic about the convention, tht it was not likely, that many of the developing countries should ratify the convention: the obligations the convention was going to put on them was socially and economically to heavy a burden. And this even more so as the contribution of these countries to the discussions was very modest. We now know, that they were absolutely wrong!

There are two more positive remarks out of the discussion I want to deal with you:

Firstly, the statement in the Review of the international Commission of jurists: « This perhaps is the first time that the United Nations has attempted to creat a convention wich would touch upon all the rights belonging to one particular group and define a state's obligations towards that group ».

Secondly, one author has noticed, that this convention for the first time gives certain obligations not only to governments or sttes but also directly to parents (Art 27.)

Adoption and how it went on. The Committee.

In spite if all this fundamental criticism and this considerable objections and against the expectation of many pessimists, the convention was adopted unanimously by the General Assebly. And we all know how it went on: within a year enough states had ratified the convention to make it entering into forces as itnernational law. In January of this year 191 states has ratified this convention. Among them are States, that never before ratified a convention on human rights. Most striking was that the developed countries were relative slow inratifying, whereas many developing countries ratified it within the first year! Now we are at the brink of universal ratification of this convention. And tht would be a unique achivement!

With the entering into force, the Committee on the Rights of the Child started its word. By now this committee, wich consists of 10 international experts in the field of law, education and social work, has proved to be a monotoring agency of the enjoyement of those rights.

According to a note of the Secretary Genarl of the Committee by the end January of this year the Committee had heldt its 20th session, during which 531 reunions took place. Since the entering into force of the Convention, the Committee received 123 initial reports and 20 periodical reports. The Committee by then had examined 98 reports and sent its comments en questions to the government concerned. Many additional reports were received there upon and were subsequently scrutinised.

In March of this year, the secretary genral (once again) drew up a list indicating the need for technical advice or assistance, as it appeared necessary from the State’s reports. That list alone comprises 24 pages and concerns 68 countries.

We might well say, that the committee indeed is a watchdog of great quality.

The summing up

In the preceding part of my expose I presented to you the considerations and views of scientists concerning the standards, a convention should meet to become a treaty of great quality. Also we have seen the views of politicians and international representatives onthis subject. It is now time to put our building blocks together.

We have found tht we do have:

An international treaty,

Drawn up by an international organisation of high esteem,

Adopted by the general assembly of that organisation unanimously,

Ratified by almost every stte in the world,

Admonitored by this international organisation by means of an active an efficient committee.

And so we see, that this convention really meets all the standards we found in our analysis of international law and refutes all objections that has been brought foward.

Consequently our conclusion is: the Convention on the Rights of Child is a very strong international legal instrument, maybe one of the strongest of its kind.

And strong it should be, because we need all the power it has. As you know, the convention has 4 leading principales :

Survival and development,

Non-discrimination

Participation

The best interest of the Child.

And this represents a vast field of financial, social, cultural and educational policy.

May I quote the words of Marta Santos Pais: « the convention on the Rights of the Child is of special importance in the lights of its binding nature. The convention is not a simple set of vague recommendations States are supposed to consider in the adoption and implementation of policies of children. It rather creates specific obligations, every State party has pledges to honour before the international community to act and creat the necessary conditions for the effective enjoyement of the rights recognised by the Convention ».

Already in its resolution with which were adopted the "Beijing Rules" the Genral Assembly considered, that existing national laws, criminal justice policies and procedures might have to be reconsidered and changed, to adapt them to the standards of the Minimum Standard Rules and that it might be difficul to meet these standards in view of the existing social, economical, cultural, political and legal circumstances but that it should be possible to do so.

This is the more true for the Convention: all State parties have taken an enormous task on their shoulders to achive the goals of the Convention. They will have to bring about major changes in national policy and national laws and they will need all their political, legal and diplomatic skills, a lot of perservance and even more patience. And for all this, the support of a strong convention will be indispensable.

But they must go on, because the Convention is there, inevitable and with its full strength. This convention really makes the rights of the child to what they should be a new, universal reality.

Does it work ?

Yes, their are signs that it works. And not only by the direct force of the convention. The same « Background Note », I have been quoting in the beginning of my presentation explains, how a persuasive pressure may come from those countries that ratify the convention and, in turn, receive donor funding for various national initiatives or assistance with the drafting of laws. Vietnam is given as an example of a state, that after some hesitation accepted help and subsequently passed laws covering the protection care and education of children. This again will help other countries to do the same.

And, to end with, being here in Tunisia, I give you a last quotation from that same « Background Note » : « The Government of Tunisia has made an unusual effort. The Council of Ministers adopted a Code for the Protection of the Child on 17 May 1995, and a delegate for child protection has been appointed in each of the 23 governorates to oversee implementation of the Convention at the sub-national level. Since July 1991, education has been mandatory for children from 6 to 16 years old, and legal action can be taken against parents who do not comply ».

So, I think is not just a coincident that we do find here in Tunisia an Association for Rights of the Child and that we are here in Tunis on this most interesting seminar on the Rights of the Child.

Ulvenhout, 8 September 1999