RECOMENDACIONES A EDUCADORES-POLÍTICAS PÚBLICAS

Other core international human rights instruments address the issue of child rights, chiefly, the International Covenant on Civil and Political Rights (ICCPR 1966)179 and the International Covenant on Economic, Social and Cultural Rights (ICESCR 1966).180

The ICCPR

The ICCPR has a mandate to commit its parties to respect the civil and political rights of individuals, including the rights to life, freedom of religion, freedom of speech and freedom of assembly. This commitment was reaffirmed in the recent meeting of the sates parties to the Covenant.181 Article 6 of the Covenant promotes the protection of the right to life that should be enjoyed by every human being because such a right is inherent to every individual. The rights to life are equally recognised to the adults and the child.

Moreover, in the ordinary course of life and certain circumstances, young persons are given special treatment compared to adults. An emphasis is placed on this in Article 10 Paragraph 2(b) of the Covenant. Article 10 paragraph 2(b) stipulates that ‘’Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. Furthermore, Article 10(3) states that juvenile offenders shall be segregated from adults and be accorded treatments appropriate to their age and status.

178

See UN Committee on the rights of the Child (CRC) General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, 17 April 2013, CRC/GC/16, available at

http://www.refworld.prg.docid/51efcd24html,accessed 22 January 2014.

179

The International Covenant on Civil and Political Rights (ICESCR 1966) is one the ten core International Human rights instruments. It was adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976, in accordance with article 27.

180

The International Covenant on Civil and Political Rights (ICCPR 1966) is one the ten core International Human rights instruments. It was adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49.

181

See the 2014 Meeting of States Parties to International Covenant on Civil and Political Rights, available at http://www.un.org/News/Press/docs/2014/hr5168.doc.htm_br, accessed 22 August 2014.

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Most significantly, Article 24 of the Covenant explicitly names the family, the state and society as custodians of child rights protection. Article 24 also promotes the right for the child to be registered at birth and also the right to have a nationality. Overall, the ICCPR underscores important set of rights that should be enjoyed by both the child and adult but with special attention in regards to treatment of the child.

The ICESR

The International Covenant on Economic, Social and Cultural Rights (ICESCR 1966) has a mandate to commit its parties to work towards the granting of economic, social, and cultural rights. Economic, Social and Cultural Rights to individuals, include labour rights, the right to health, the right to education, and the right to an adequate standard of living. This Covenant is equally significant in the domain of protection for human rights in general and for child rights in particular.

For instance, Article 13 of the Covenant places emphasis on the importance of education for the strengthening of human rights and fundamental freedom. Indeed emphasis on education through this provision is pertinent because children are often deprived of schooling, even at the primary level when they are, from a very early age, engaged in child labour and other activities detrimental to their social and physical development.

The enshrining of child rights in international legal instrument is without doubt the evidence of a shift in mankind’s perception to the status of the child. The UDHR has clearly set the framework to the betterment of every human being’s life. Although, this international instrument does not specifically underscore the rights of the child, there is a perception that children as human beings ought to enjoy their dignity and right to life as well as other substantive rights. In that respect, adults have the ‘duty of care’. Hart and Pavlovic emphasise that, ‘as to children, rights have developed differently than for adults in regard to civil and political rights that have been recognised to children recently, and after the social rights.’182 In the light of this recognition there is an increasing obligation for parents or guardians to play the adequate role in protecting the rights of the child. Thus according to Hayek:

With regard to children the important fact is, of course, that they are not responsible individuals to whom the argument of freedom fully applies. Though it is generally in the best

182

Stuart Hart and Zoran Pavlovic, ‘Children’s rights in education: A historical perspective’ (1991) 20 School Psychology Review 345, 358.

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interest of children that their bodily and mental welfare be left in the care of their parents or guardians, this does not means that parents should have unrestricted liberty to treat their children as they like.183

The Child Rights Convention per se is tremendously generous with what a child can enjoy as rights. Seen as the Magna Carta of child rights, it opens the door to a wide field of legal capability to every nation to promote and protect the rights of the child by enacting laws and regulations at domestic levels. For instance, Article 40 of the Convention requires governments to establish special rules and procedures regarding children accused or convicted of criminal offences. It also requires government to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.184 As Cullen pertinently observes, indeed, in a major shift regarding children’s rights, this Convention separates children’s rights from the family.185

This approach is significant in the sense that, earlier human rights provisions, such as Article 24 of the 1966 International Covenant on Civil and political Rights (ICCPR), either contextualised the child within the family or provided for rights of families only.186

It is worth noting that the CRC has recalled in its preamble the core idea that childhood should be entitled to special care and assistance.187 More significantly the CRC promotes the family cell. Therefore, it advocates the strengthening of family by urging the competent authorities to provide the necessary protection and assistance so that it can fully assume its responsibilities within the community.188

183

Friedrich A Hayek, ‘The Constitution of Liberty’ (Routledge and Kegan Paul, London 1963) 377.

184

Article 40 CRC, See also Jane Fortin, ‘Children’s Rights and the Developing Law’ (LexisNexis UK, 2003) 550. See also Unicef, Progress of Nations 1997 Special Protections, Progress and Disparity, available at http://www.unicef.org/pon97/p56a.htm_br, accessed 22 August 2014.

185

Holly Cullen, ‘Child Labour Standards: From Treaties to Labels’ in Burns H Weston (ed) ‘Child Labour and

Human Rights: Making Children Matter (Lynne Rienner Publisher Inc, Boulder 2005) 92. 186

Ibid.

187

The preamble recalled this idea initially stated in Article 25(2) of the Universal Declaration of Human Rights.

188_{See Andrew Bainham, ‘Contact as a right and Obligation’ In Andrew Banham, Briget Lindley and Martin}

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Indeed, convinced that the family is the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children,189 the CRC underscores the necessity to establish stable family cell. However, family environment cannot always guarantee the security of the child when his human rights are jeopardised. More remarkably, violations of child’s human rights often occur in the family environments. Meanwhile, on the assumption that such occurrence will reduce or unlikely when the family cell is well established and wealthier, the CRC’s approach has some merits.

The enforcement mechanism provided in the Convention on the Rights of the Child is through a monitoring system which involves government reporting to the Committee on the Rights of the Child. The main function of the Committee is to examine progress made by states parties under the Convention (Part II Articles 42-45). The main weakness with the reporting ‘enforcement’ mechanism is that it is often very ineffective and indeed; some African countries do not even bother to report to the committee or if they do; the reports are often inadequate or make claims to the inapplicability of certain Articles of the provision to their countries.190

It is tempting to conclude that the African child charter and the Convention complement each other in their conception of childhood and the rights of children that flow from such conception. After all, the African Child Charter in its preamble reaffirms adherence to the principles of the rights and welfare of the child as claimed in inter alia the convention. However, behind the apparent harmony lie ideological and conceptual differences between the two documents which may suggest, at the very least, that there remain unanswered questions on the conceptual understanding of the essence of both the context and substance of the of the rights of the child.191

189 _{See the preamble of the Convention on the Rights of the Child, paragraph 18(1) of the 1999 African’s}

Charter on the Rights and Welfare of the child, Article 16(3) of the Universal Declaration of Humasn Rights, and the House of Lords’ definition in Huang v Secretary of State for the Home Department.

190

See Welsham Ncube, ‘Prospects and Challenges in Eastern and Southern Africa: The interplay between international human rights norms and domestic law, tradition and culture’ in Welsham Ncube (ed) ‘Law,

Culture, Traditions and Children’s Rights in Eastern and Southern Africa’ (Ashgate-Dartmouth, Aldershot

1998) 5.

191

Welsham Ncube, ‘The African cultural fingerprint? The changing concept of childhood’ in Welsham Ncube (ed) ‘Law, Culture, Traditions and Children’s Rights in Eastern and Southern Africa’ (Ashgate-Dartmouth, Aldershot 1998) 12, 13.

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The ICCPR‘s unambiguous approach to the protection of child’s rights for adjudication is a significant point in the Covenant. The rights of accused juvenile persons will be better protected if they are separated from adults. More importantly by underscoring who are the custodians of child rights protection, the Covenant has a merit of being classified as a core international human rights instruments. This Covenant provides few, but significant articles that guarantee some rights for the child.

The ICESCR, like other core international human rights instruments, puts human rights in general and child rights in particular at a high level of consideration. The approach taken in the ICESCR that is to urge states parties to make primarily education compulsory has the merit of setting a framework for the realisation of fundamental rights inherent to every human being. As indicated elsewhere in this thesis, education is the backbone of a stable and thriving society in terms of human rights. Hence, the textual analysis of human rights instruments appear necessary to identify where children’s rights are covered in other instruments than those exclusively concerned with child rights.

Dismissing the ILO’s role in the protection of human rights in general and in child rights in particular is the result of a superficial evaluation. The ILO‘s legal instruments are significantly protective of workers’ rights. Various human rights violations arise in work environments across the globe. The ILO‘s standards setting role at the international level has the merit of working towards a human rights violation and free work environments. The appeal to the competent authorities across the globe, to better these rights sounds very loud. The ILO’s approach to child rights is unambiguous through its Conventions related to children. Indeed the legal frameworks to safeguard children’s fundamental human rights are precise.

The underlying assumption of all international human rights instruments on the rights of children is that the international law as a body of law is a significant tool in the improvement and development of the conditions under which children live across the world. However, the main problem with international law has always been the enforcement mechanisms and procedures for that body of law. International treaties are directed and binding on state parties to the Convention or treaty.192 Only a very small portion of international law gives rights

192

See Welsham Ncube, ‘Prospects and Challenges in Eastern and Southern Africa: The interplay between international human rights norms and domestic law, tradition and culture’ in Welsham Ncube (ed) ‘Law,

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directly to individuals and hence the often repeated assertion that the subjects of international law are states and not individuals. It is for this reason that international human rights instruments are directed to state parties to recognise, implement, expand, develop and enforce the recognised rights of individuals within their territories.193

1.3 Enshrining Child Rights in Legal Frameworks: The Standing Regional and Sub-