This module is a resource for lecturers
Topic five - Realizing justice for children in the face of contemporary challenges
The entry into force of the Convention on the Rights of the Child (CRC), in 1990, was momentous. Never before had a comprehensive children’s rights convention enshrined both children’s economic, social and cultural rights, as well as civil and political rights. The CRC is the most ratified human rights treaty in the world, yet on a daily basis, around the world, children endure violence (including the routine violence of corporal punishment, online/offline bullying and hate speech, intra and extra familial child sex abuse, and violence in institutions, including schools, care institutions, and juvenile justice facilities). Children are harmed and killed in situations of conflict, children are trafficked and sold into slavery. Despite their status as rights holders, many children live in poverty or endure conditions of profound hardship. Children endure myriad forms of discrimination on the basis of their: age, sex, religion, race, and/or nationality (as a non-exhaustive list of examples).
What does this mean about the role of international law in terms of the practical protection, promotion and fulfilment of children’s rights? In the face of human rights abuses of this kind, how can we conceptualize justice for children for the future. This question has both pragmatic and speculative dimensions and examining prospective challenges with reference to specific regions/countries has the potential to spark lively class discussion. The following cross-cutting issues are relevant to discussions of “emergent issues” in all jurisdictions.
The human rights ‘implementation gap’ is much studied (see Lundy et al, 2012, for a study of the legal implementation of the CRC in 12 countries). The implementation gap refers to the disjuncture between the human rights obligations upon respective States parties, and the material conditions and lived experiences of individuals within the respective jurisdiction - where these conditions or experiences interfere with human rights. With respect to children, discrepancies between the State Reports, and the shadow or alternative reports which are prepared collectively by non-government organizations, highlight key areas in which States parties are urged to take action in order to prevent or remedy a breach of children’s rights. This often involves the recommendation that States parties improve social services for children, nationalize a plan of action for children’s rights, incorporate children’s rights into domestic law, or increase efforts to promote human rights education within their jurisdiction. This, and the work of the other periodic treaty monitoring bodies, offers an important accountability mechanism for States parties and, in addition, constitutes an opportunity for the CRC Committee to remain apprised of the emergence of new challenges for children within the jurisdiction of respective Member States.
Extant challenges associated with the implementation gap are exacerbated by a rapidly changing world, in which various aspects of social, cultural, and geo-political flux bear effects on children, and create new/altered challenges, including:
- The new/exacerbated risks that accompany children’s activity online - including the criminalization of children for some digitally facilitated activities (posting or distributing sexual images of children and, in some jurisdictions, the criminalization of online speech acts)
- Ensuring children’s privacy in the digital age – including the anonymity of children involved in all stages of criminal justice proceedings
- Ongoing challenges regarding media representations of children – including the role that sensationalist media reporting plays in exacerbating fears about youth crime and contributing to the demand for criminal justice responses for children that are “tough on crime”.
- Ensuring effective justice responses for children recruited and exploited by terrorist or violent extremist groups (for more on this topic, see UNODC, 2017).
The pace of change is such that, just as new opportunities for children emerge, so too do new risks, new criminal methodologies for exploiting children, and new or changed contexts of adversity or conflict. In the face of this change, it is important to recognize the CRC as a living instrument. The provisions enumerated there, 30 years ago, are now complemented by a wealth of detailed guidance from the CRC Committee, in the form of General Comments, Days of Discussion at the UN in Geneva, and, Concluding Observations which monitor the implementation of the CRC by States parties, and in considering Individual Communications which allege violations of the CRC or its three Optional Protocols: on the sale of children, child prostitution and child pornography (OPSC); on the involvement of children in armed conflict (OPAC); and the Third Optional Protocol on a communications procedure (OPIC).
It is through these mechanisms that international law, treaty monitoring bodies, and other authoritative internationally agreed standards and norms, have the potential to remain relevant in the face of rapid social, cultural, economic and environmental change. In this sense, the CRC has the potential to guide and set the boundaries for States to respond to emergent challenges faced by children, including those that compromise children’s access to justice.