This Article is written by Duvada S H Neha Choudhury of 3rd Semester of Damodaram Sanjivayya National Law University, DSNLU
ABSTRACT
Children are the future of the world. They become individuals in the future and have to lead an independent life. While living in a society they are prone to many evils like discrimination, crimes, abuse, etc. They deserve to live in a safe environment and to be protected from these evils because children have tender minds and children can get easily affected psychologically and physically. This leaves irreparable pain and trauma on the child. As adults, it is our responsibility to provide a safe and harmonious environment filled with love, happiness[1], and understanding. They should know and differentiate between what is right and wrong. To ensure all these they are provided rights by the United Nations Conventions on the Rights of the Child.
The United Nations Convention on the Rights of the Child is an international human rights treaty that was opened by signatories in the year 1989 and came into force in 1990. This treaty focuses on the rights of children and ensures their various rights. This article focuses on the background of the convention, the general principles and optional protocols mentioned in the convention, the role of UNICEF in promoting the convention, and its condition in India.
Keywords: Child, Child rights, Convention, UNCRC, Human rights, Protocol.
INTRODUCTION
Children are not goods or commodities to their parents, guardians, or adults for them to play around their lives. They are humans and have all the needs and feelings that an average human has. They should be provided with rights to protect themselves from the threats that come from society. With this thought and vision came the United Nations Convention on the Rights of the Child (UNCRC). It is an international human rights treaty that ensures social, economic, political, civil, cultural, and legal rights to children worldwide. UNCRC is the only human rights treaty that has been widely ratified in history. It has been ratified by 196 countries except for the United States as it has signed the treaty but hasn’t ratified it.[2] The treaty has defined a child as any human being below the age of 18 unless the country has a different age to attain majority.[3] UNCRC consists of 54 articles that explain various rights of the child. It also mentions the role of NGOs and organisations in implementing the treaty. This convention is used as an example or inspiration for many countries to make policies and laws regarding the protection of children. Formally, it is the first time that countries have recognized the rights of children and this convention provides the standard for legislation.
This treaty was adopted on November 20, 1989, in the UN General Assembly at its 44th session, and came into force on September 20, 1990. It is available in Arabic, English, Russian, Chinese, Spanish, and French. It has 140 countries as signatories and 196 countries ratified it. India ratified the convention on December 11, 1992.
BACKGROUND
After the world war, many children became orphans, disabled, and injured as a result of the horrors of the war. There were many migrated children and refugees. Children were all scattered throughout the world. There were many victims but there were no rights to protect them. World leaders have realized that even children require rights to safeguard and protect them. They recognized that they should be able to have dignity and respect in the world. UNCRC was developed to address various vulnerabilities and specific needs of children.
The Convention was drafted by a working group established by the U.N. Commission on Human Rights. The drafting committee was led by government officials, but representatives from United Nations bodies and specialized agencies, in addition to that many non-governmental organisations, also participated. During the extended negotiations, the original draft given by the Polish government was considerably revised and widened. The drafting began in the year 1979 along with the preparations for the international day of the Child. After 10 years, the convention was adopted unanimously by the UN General Assembly (UNGA) by its resolution of 44/25 on 20th November 1989.[4]
Children have become an essential topic before. Many deliberations happened regarding them in the international arena. In 1924, the Geneva Convention of the Rights of the Child[5] was adopted by the League of Nations. It was drafted by the founder of Save the Children Fund, Eglantyne Jebb. In 1959, the Declaration of Rights of the Child was adopted by the UNGA on November 20.[6] The UNCRC is also considered as a comprehensive version of the Declaration of Rights of the Child. This convention presents a comprehensive framework for children’s rights that covers a wide variety of issues. It acknowledges the right of the child to life, identity, nationality, and family. It protects their right to a decent quality of life for their physical, mental, spiritual, moral, and social growth, as well as their access to education and healthcare. The agreement also protects children from abuse, exploitation, and violence, as well as their right to participate in choices that influence their life.
GENERAL PRINCIPLES OF THE CONVENTION
The convention has four basic principles which guide the leaders and delegates while making rights for the child. If these principles are implemented or mentioned, the rights can be fulfilled. These principles recognize the child as an individual and a human being. They are interconnected and cannot be implemented without the other. The four principles are mentioned below in detail:
- NO DISCRIMINATION
This is mentioned in Article 2 of the convention which states that children below the age of 18 should be discriminated against based on caste, nationality, birth, race of parents (or) legal guardian, sex, colour, religion, disability, opinions, etc.
- BEST INTEREST OF THE CHILDREN
This is mentioned in Article 3(1) of the convention which states that any decisions taken regarding the child should be taken in the best interest of the child which means that the child should be taken into consideration. This is done to protect the child from various vulnerabilities and to support them.
- THE RIGHT OF SURVIVAL AND DEVELOPMENT
This is mentioned in article 6(2) of the convention which says that the states should ensure the maximum possible survival and development of the child.[7] Article 6(1) of the convention recognizes the right to life for every child. This ensures the social and economic rights of the child.[8]
- THE VIEWS OF THE CHILD
This is mentioned in Article 12(1) of the convention which says that the child has the right to express his views without any hindrance if the matters are related to the child as he can take his or her own decisions if the child is affected by the decisions by also considering his or her age and maturity.[9] Article 12(2) also states that the child is allowed to be heard in any judicial and administrative proceedings.[10]
OPTIONAL PROTOCOLS OF THE CONVENTION
Optional protocols are often followed by human rights treaties. These protocols complement the treaty. They include either the new emerging issues of the subject matter or new provisions or obligations of the treaty. They are called optional because they are not absolute and are not automatically binding on the states which ratified the treaty. It depends on the states whether or not to be obliged or accept the optional protocol. If they do so, the states must ratify the optional protocol also.[11]
There are three protocols adopted as a part of the convention. Two of them were adopted in the year 2000 and came into force in 2002 and the third one was adopted in 2011 and came into force in 2014. The 2 protocols were ratified by more than 150 countries and the third one was ratified by 50 countries. The three protocols are mentioned below:
- Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in armed conflict
The purpose of this guideline is to keep minors from being recruited or employed in conflicts. It defines the age of 18 as the minimum for direct involvement in armed conflicts and outlaws the coercive recruitment of children under the age of 18. It also forbids using children in any way that is detrimental to their well-being.
- Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, child prostitution, and child pornography
This protocol covers the issues of child trafficking, prostitution, and pornography involving children. States must criminalize these practices and take efforts to prevent and counteract them. It also seeks to defend the rights of child victims and encourage international collaboration in combating these crimes.
- Optional Protocol on a Communications Procedure
This protocol permits individual children or groups of children, or their representatives, to file complaints with the Committee on the Rights of the Child if they consider their rights under the UNCRC have been infringed. When national remedies have been exhausted, it provides a vehicle for children to seek international justice.
ROLE OF UNICEF IN PROMOTING AND SUPPORTING UNCRC
The United Nations International Children’s Emergency Fund (UNICEF) is an international organization that works for children in need all over the world. It’s an agency of the UN. It plays an important role in promoting and supporting UNCRC. Child rights are the heart of UNICEF and any schemes or policies implemented by UNICEF are based on and are guided by UNCRC. UNICEF strengthens laws and policies and increases knowledge of the Convention at all levels of society by encouraging ratification and supporting the implementation of the Convention and its Optional Protocols. It supports UNCRC in various ways.[12] Some of them are:
- Assisting countries in implementing the Convention via legislation and policies, including institutional and professional capacity building.
- Participating in various stages of the monitoring procedure. UNICEF national offices, for example, support governments in organizing large-scale discussions before producing reports.
- In agreement with the Committee on the Rights of the Child. For instance, by taking part in the Committee’s evaluation of submitted reports.
- Collaboration with governments to develop implementation plans in response to the Committee’s recommendations.
- Assisting in ensuring that voices that are all too often ignored are reflected in the material offered to the Committee. For example, by permitting broad-reaching dialogues at all levels of society, publishing written reports on the status of women and children, and inviting non-governmental organisations to submit their society, publishing written reports on the status of women and children, and inviting non-governmental organisations to submit their findings to the Committee in addition to official submissions.
CASE LAWS
- Vishal Jeet v. Union of India[13]
It was a PIL filed by an advocate who is the petitioner in this case which is surrounded around the theme of child trafficking and prostitution. An appeal was made to the hon’ble supreme court to launch an investigation on the police officers whose jurisdiction of cases was in red lights areas, devadasi, and jogin tradition and also in the rehabilitation centers of the victims. In this case, the supreme court has acknowledged the need to amend the related laws in India. It has also emphasized that Articles 21 and 23 of the Indian constitution are inherent in child rights and made them parallel to the UNCRC provisions.
- Bandhua Mukti Morcha v. Union of India[14]
This case brought to light the issue of child labour and resulted in the creation of a thorough legislative framework for the abolition of child labour. In accordance with the principles of the UNCRC, the Supreme Court of India interpreted Article 24 of the Indian Constitution, which forbids the employment of minors in hazardous occupations.
- Gaurav Jain v. Union of India[15]
The petitioner, an Advocate, filed a Public Interest Litigation (PIL) before the Supreme Court of India in response to an article titled “A Red-Light Trap: Society Allows Prostitutes Offspring” published in the magazine ‘India Today’ on July 11, 1988. The petitioner asked God to provide independent educational foundations for the children of the fallen women (a word used by the Supreme Court throughout the decision). The Supreme Court of India addressed the issue of child trafficking in this case, establishing criteria for the rescue, rehabilitation, and repatriation of exploited children. The court emphasized the importance of protecting children from exploitation and providing them with the appropriate assistance and care.
- Independent Thought v. Union of India[16]
The petitioner was a Registered Society dedicated to child rights. This Society assists non-governmental organisations as well as the government. The group petitioned the government under Article 32 of the Indian Constitution. Later, as an intervener, the Child Trust joins the petitioner. The petition was linked to Exception-2 to Section 375 of the IPC, which states that sexual intercourse between a man and his wife who is a juvenile between the ages of 15 and 18 is not considered rape. The court ruled that sexual intercourse with a girl under the age of 18, even if she is married, is rape under the preservation of Children from Sexual Offences (POCSO) Act, emphasizing the preservation of girls’ rights and preventing child sexual exploitation. The judgement intended to safeguard the rights and well-being of girls, in accordance with the UN Convention on the Rights of the Child’s provisions on protecting children from all types of sexual exploitation and abuse.
- Sheela Barse v. Union of India[17]
The Supreme Court of India examined the situation of children in Indian jails in the case of Sheela Barse v. Union of India (1987). In considering the rights of adolescents in detention, the court relied on the United Nations Convention on the Rights of the Child (UNCRC). It emphasized the need of treating children who have broken the law with compassion and dignity in conformity with international norms. The decision advocated for better circumstances and protection for children in jail, recognising their fragility and rights.
- Bachpan Bachao Andolan v. Union of India[18]
In this case, Bachpan Bachao Andolan, an Indian non-governmental organisation, petitioned the Supreme Court of India to intervene in the exploitation of child performers in India’s travelling circuses. According to one research, children are kidnapped from Nepal or abducted from their families, exploited as child labourers in these circuses, and subjected to mental, physical, and sexual abuse. The subject of child trafficking and forced labour was addressed by India’s Supreme Court. The court ruled that child labour in any form is a breach of children’s rights, citing the United Nations Convention on the Rights of the Child (UNCRC). It instructed the government to take strong measures against child trafficking, to rescue and rehabilitate trafficked children, and to secure their safety. The decision emphasized the significance of protecting children’s rights and encouraging their well-being, as well as supporting to efforts to end child labour and protect vulnerable children.
CONCLUSION
In this article, we have learnt about the most widely ratified human rights treaty i.e., the United Nations Convention of Rights of the child (UNCRC). It’s important to provide rights to children as they are also human beings and they represent the future of the world. They go through a lot during their childhood and as adults we have to provide them with a safe, happy and harmonious world. In this article, the readers were made aware of the general principles and optional protocols of the convention. UNICEF plays an important role in supporting and promoting UNCRC as it is the foundation for UNICEF to implement policies for children. The researcher has also provided a few case laws from the Indian jurisdiction that highlight the importance of the convention. The convention provides a legal framework for the nations worldwide to introduce policies for children all around the world to provide them a safe space and to make them better individuals in the future.
[1]UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 1, available at: https://treaties.un.org/doc/Treaties/1990/09/19900902%2003-14%20AM/Ch_IV_11p.pdf, last seen on: 26/06/2023
[2] Frequently asked questions on the Convention on the Rights of the Child, UNICEF, Available on: https://www.unicef.org/child-rights-convention/frequently-asked-questions, last seen on: 26/06/2023
[3] Art. 1, United Nations Conventions of Rights of the Child
[4] Background to the Convention, UN OHCHR, Available on: https://www.ohchr.org/en/treaty-bodies/crc/background-convention#:~:text=History,International%20Year%20of%20the%20Child., last seen on: 28/06/2023
[5] Supra 1, see Preamble.
[6] Ibid has
[7] Article 6(2), the United Nations Convention of Rights of the Child
[8] Article 6(1), the United Nations Convention of Rights of the Child
[9] Article 12(1), the United Nations Convention on Rights of the Child
[10]Article 12(2), the United Nations Convention on Rights of the Child
[11] Optional Protocols, Together Scotland, Available at:https://www.togetherscotland.org.uk/about-childrens-rights/un-convention-on-the-rights-of-the-child/optonal-protocols/, last seen on: 28/06/2023.
[12] UNICEF’s role in promoting and supporting the Convention on the Rights of the Child, UNICEF, Available on: https://www.unicef.org/child-rights-convention/unicef-role, last seen on: 01/07/2023
[13] Vishal Jeet v. Union of India AIR 1990 SC 1412
[14] Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549
[15] Gaurav Jain v. Union of India and others, 9 July 1997, [1997] 8 SCC 114
[16] Independent Thought vs. Union of India (2017) 10 SCC 800
[17] Sheela Barse v. Union of India 1986 SCC (3) 596
[18]Bachpan Bachao Andolan v. Union of India [2011] 5 SCC 1
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