PROTECTING THE WORLD’S CHILDREN
Protecting the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems is a review of the ways in which the Convention on the Rights of the Child (CRC) has been incorporated into national legislation around the world. It comprises four studies that compare experiences from countries with different types of legal traditions, highlighting common characteristics, developments and trends as a basis for the work of practitioners in this area. The book provides examples of ways in which the CRC has been successfully incorporated into diverse legal systems and derives from that experience a framework for improved alignment of national legislation with human rights instruments and with the CRC in particular, taking into account not only the provisions of the CRC but also its underlying principles, such as indivisibility of rights and the importance of partnership in realizing children’s rights. As such it provides practitioners with a tool for supporting the legal aspects of implementation of the CRC as a foundation for implementation overall.
UNICEF has brought together leading jurists with expertise in different legal systems to produce Protecting the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems. UNICEF works in 191 countries through country programmes and national committees to uphold the Convention on the Rights of the Child and the achievement of the Millennium Development Goals.
Protecting the World’s Children
IMPACT OF THE
CONVENTION ON THE RIGHTS OF THE CHILD
IN DIVERSE LEGAL SYSTEMS
CAMBRIDGE UNIVERSITY PRESS
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© UNICEF 2007
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First published 2007
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication Data
Protecting the world’s children : impact of the Convention on the Rights
of the Child in diverse legal systems / UNICEF.
Includes bibliographical references and index.
ISBN-13: 978-0-521-87513-4 (hardback)
ISBN-10: 0-521-87513-7 (hardback)
1. Children – Legal status, laws, etc. 2. Children (International law)
3. Convention on the Rights of the Child (1989) I. UNICEF. II. Title.
342.08′772 – dc22 2006035204
ISBN 978-0-521-87513-4 hardback
The views and opinions expressed in this book are those of the author
of the relevant chapter and do not necessarily reflect the positions and
policies of UNICEF.
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and does not guarantee that any content on such
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|Introduction and Overview||1|
|1||A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Common Law Countries||34|
|2||A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Civil Law Countries||100|
|Emilio García Méndez|
|3||A Comparative Perspective of the Convention on the Rights of the Child and the Principles of Islamic Law: Law Reform and Children’s Rights in Muslim Jurisdictions||142|
|Shaheen Sardar Ali|
|4||Law Reform and Children’s Rights in Plural Legal Systems: Some Experiences in Sub-Saharan Africa||209|
This initiative would not have been possible without the remarkable drive of Savitri Goonesekere, Emilio García Méndez, Rebeca Rios-Kohn, and Shaheen Sardar Ali, the contributors to this book, as well as the commitment of Elizabeth Gibbons, Chief of the Global Policy Section in UNICEF, Division of Policy and Planning.
Warm words of appreciation are addressed to Saad Houry, Director of the Division of Policy and Planning, for supporting this endeavour.
Special thanks go to the following UNICEF country offices, which enthusiastically embraced and participated in this initiative: Armenia, Azerbaijan, Barbados, Benin, Botswana, Burkina Faso, Dominican Republic, Ghana, Jamaica, Jordan, Mauritania, Morocco and Zimbabwe. In particular, we would like to express our gratitude to Jean Gough, UNICEF Deputy Regional Director in Latin America and the Caribbean (TACRO), and UNICEF Representatives Bertrand Bainvel, Souleymane Diallo, Philippe Duamelle, Joan French, Festo Kavishe, Maie Ayoub von Kohl, Ruth Leano, Gordon Jonathan Lewis, Tad Palac, Dorothy Rozga, Hanaa Singer and Anne Skatvedt whose support of the process has been outstanding.
Preparation of this book was aided by a series of country case studies prepared by experts on children’s rights from various parts of the world. These are Humay Afandunjeva, Mohammad Al-Quda, Mary Bellof, Myriam Claudine, Fortune Dako, Candis Hamilton, Leighton Jackson, Garton Kamchedzera, Hayk Khemchyan, Yabiyuré Konsimbo, Ana Gena Martinez, Rihab Qaddoumi, Kofi Quashigah, Tracy Robinson, Abderrahmane Yessa and Michelle Zerrari. We would like to express our special thanks to these experts.
Many UNICEF staff members and experts provided extremely useful comments and suggestions and generously reviewed the different drafts. In particular, we would like to thank Maria Asuad, Veronica Avati, Naira Avetisyan, Rajae Berrada, Tewabech Bishaw, Susan Bissell, Monica Canafoglia, Candie Cassabalian, Jay Chaubey, Enrique Delamonica, Beatrice Duncan, Radhika Gore, Maha Homsi, Brahim Ould Isselmou, Noreen Khan, Fode Konde, Geoffrey Ljumba, Muriel Mafico, Siraj Mahmudov, Nada Marasovic, Rhea Saab, Saudamini Siegrist, and Heather Stewart.
This initiative also benefited greatly from the invaluable counsel and support of Marta Santos Pais, Director of UNICEF, Innocenti Research Centre and of Peter Mason and Patricia Moccia from UNICEF Headquarters.
Our sincere appreciation to Akila Belembaogo, then Head of the Gender Equality and Human Rights Unit in UNICEF’s Global Policy Section, for her able and full support to this project.
Many thanks are due to the management team for this project, particularly to Nadine Perrault and Vanessa Sedletzki, whose commitment and dedication have contributed to making this project a reality.
We also gratefully acknowledge the financial support provided by DFID.
In 2000, with the adoption of the Millennium Declaration, nearly 200 na-tions pledged to promote respect for human rights and to endeavour to protect and promote the full spectrum of rights in their territories.
As then Secretary-General Kofi Annan notes in a foreword to UNICEF’s State of the World’s Children Report 2005, “Only as we move closer to realizing the rights of all children will countries move closer to their goals of development and peace.”
The Millennium Development Goals (MDGs) – which include eradicating extreme poverty and hunger, achieving universal primary education, promoting gender equality and reducing child mortality – provide a solid foundation upon which countries can build an environment that stimulates social justice, equity, liberty, development and good governance. Among those committed to advancing the best interests of children in the context of the MDGs, legislative reforms have been of particular interest.
Legislative reform not only advances progress toward the MDGs, but it is also needed to support their achievement. Both the adoption and the effective implementation of laws and policies to protect children; promote their survival, education and development; eliminate inequalities and promote gender equality and the empowerment of women are critical to help meet the MDGs.
Indeed, there are clear signs in many parts of the world that governments are paying serious attention to the structural and legal barriers that threaten children’s well-being. Laws and regulations are being reviewed and amended; constitutions are being changed. Evidence has confirmed that legislative reform is critical to addressing discrimination and alleviating poverty. Improved legal and policy frameworks are improving education rates and maternal health, reducing child mortality, combating diseases and promoting environmental sustainability. Legislative reform is helping to establish the accessible, competent and effective institutions necessary for achieving good governance and results for children.
This is not to say that there is not still work to be done. In order for legislative change to pass from rhetoric into practice, we must significantly change our approach for children. Otherwise, we will not fully realize measurable improvements in their lives. For example, as we lead the fight against under-five mortality and HIV/AIDS, or ensure access to education, we also must support the establishment of appropriate legal frameworks. At the same time, we should be advocating for the institutions, budget allocations and economic and social policies that also are needed.
All of these elements work together to advance the survival, development and protection of the world’s children. And all of them are necessary to achieve meaningful results and move closer to reaching our shared ambition of a world that is truly fit for children.
Ann M. Veneman
Executive Director of UNICEF
Savitri Goonesekere, a national of Sri Lanka, is Professor of Law Emeritus at the University of Colombo, Sri Lanka. Professor Goonesekere was previously Professor of Law and Vice Chancellor of the university. She also was a member of Sri Lanka’s University Grants Commission, National Education Commission, the National Committee on Women, and the National Committee on the Rights of the Child. She has held Visiting Fellowships at the School of Oriental and African Studies, University of London UK, UNICEF International Child Development Centre (now Innocenti Research Centre) Italy, and also in the Human Rights Programme at Harvard Law School. Professor Goonesekere is currently a member of the boards of several international and regional non-governmental organizations. She has written several books and published articles and chapters in books in the areas of comparative family law, human rights, law and development with a focus on women’s and children’s rights, and legal history. Her major publications include the Sri Lankan Law on Parent and Child (1987), Child Labour in Sri Lanka: Learning from the Past (ILO, 1993), Children Law and Justice: A South Asian Perspective (1998), and Muslim Personal Law in Sri Lanka (2000). She also has edited and contributed as author to the book Violence, Law and Women’s Rights in South Asia (2004).
Professor Goonesekere acts regularly as a consultant for a range of international bodies and as an advisor to several UN agencies and to the Commonwealth Secretariat in London on areas of human rights, including women’s and children’s rights, and law and development. Professor Goonesekere has represented Sri Lanka at a number of international forums. She was a member of the UN Committee on the Elimination of All Forms of Discrimination against Women (1999–2001) and Chairperson of the Asian Development Bank External Forum on Gender (2003–2005).
Rebeca Rios-Kohn, a national of Uruguay, was educated in the United States, where she received a Juris Doctor from T.C. Williams Law School, University of Richmond, Virginia (1981). Admitted to practice law in Virginia and New York, she began her career as an attorney. In light of her deep interest in human development, in 1983 she joined International Planned Parenthood Federation (WHR), concentrating on population policy issues in the Latin American and Caribbean region. Beginning in 1989, she worked for UNICEF, where she held several positions that focused on promoting the implementation of the Convention on the Rights of the Child and providing policy advice on human rights. Ms. Rios-Kohn joined UNDP in 1998 as Principal Adviser on Human Rights, where she engaged in a wide range of activities that aimed to integrate human rights with human development. She has written a number of articles on the rights of the child that were published in US law journals.
More recently, she has carried out a number of case studies for UNICEF and UNDP, including Peru Case Study: A Human Rights Approach (UNICEF, 2002), Human Rights-Based Programming in Mali (UNICEF, 2002), and Human Rights-Based Programming in Jordan (UNICEF, 2003). Ms. Rios-Kohn currently works as an international consultant on human rights and human development for a range of organizations.
Emilio García Méndez, a national of Argentina, is the Chair of Criminology University of Buenos Aires. He has a law degree from the University of Buenos Aires (1974). Professor García Méndez obtained his Ph.D. in law at the University of Saarland, Germany (1984). He was a researcher in the field of criminology and juvenile delinquency at the United Nations Inter-regional Crime and Justice Research Institute (UNSDRI) in Rome (1985–1990), and worked for UNICEF in Brazil (1990–1993). Professor García Méndez was UNICEF’s Regional Advisor on Child Rights for Latin American and the Caribbean from 1993 to 1999. His main field of work is child rights with special reference to juvenile justice. His main publications include Infancia, Ley y Democracia en América Latina, Derecho de la Infancia Adolescencia en América Latina, and Adolescents and Penal Responsibility (Ad-Hoc, 2001).
Professor García Méndez is a Guest Professor at the Faculty of Law, University of Buenos Aires. Professor García Méndez consults, independently, for different national and international organizations, namely, UNICEF, ILO, the Inter-American Institute for Human Rights, San Jose de Costa Rica, the Inter-American Institute for Children, and the Organization of Inter-American States – Montevideo, Uruguay. He is currently the President of the Sur-Argentina Foundation – Child Rights and Human Rights.
Shaheen Sardar Ali, Ph.D., is a Professor of Law at the University of Warwick and Professor II, Department of Public Law, University of Oslo. She was formerly Professor of Law, University of Peshawar, Pakistan. Her teaching and research interests include Islamic law and jurisprudence, international law of human rights and in particular women’s human rights, children’s rights, public international law, gender and the law, constitutional theory and alternate dispute resolution. She has written a number of articles on human rights and Islamic law. Some of her more recent publications include two monographs: Gender and Human Rights in Islam and Inter-national Law: Equal Before Allah, Unequal Before Man? (Kluwer Law International, 2000) and Indigenous Peoples and Ethnic Minorities of Pakistan (NIAS/Curzon Press, 2002, with J. Rehman).
Professor Ali regularly acts as a consultant for a range of international bodies and has represented Pakistan at a number of international forums. She was a member of the National Commission of Inquiry on Women as well as the Prime Minister’s Consultative Committee on Women in Pakistan. Professor Ali also has served as Minister for Health, Population Welfare and Women’s Development in the Government of the North West Frontier Province (Pakistan), and chaired the National Commission on the Status of Women of Pakistan. She is one of the founding members and coordinator of the South Asian Research Network on Gender, Law and Governance (ARG).