Capturing a global momentum in children’s rights: Incorporating the Convention on the Rights of the Child into national law, by Ursula Kilkelly

More than 30 years after the adoption by the United Nations of the Convention on the Rights of the Child (CRC), a legally binding children’s rights treaty, attention has focused on the imperative of implementation. Under Article 4 of the Convention, states parties must take all appropriate measures to recognise Convention rights and according to the Committee on the Rights of the Child, the body that monitors implementation of the Convention, this can include both legal and non-legal measures. In line with General Comment No 5 on General Measures of Implementation, states parties have been taking a range of measures to give effect to the Convention at a national level. These include: the establishment of national human rights institutions for children, the adoption of national policy and providing training and education on children’s rights for those who work with and for children.  Studies of implementation have highlighted the clear connection between the legal protection of children’s rights and measures to implement the Convention. In 2012, a global study for UNICEF UK reviewed the progress made in 12 countries and found that those countries that had a deeper level of incorporation of the Convention could be associated with a greater level of respect for children’s rights. In-depth research by Lundy, Kilkelly and Byrne concluded that those countries that have given legal status to the CRC in a systematic way and have followed this up by establishing the necessary systems to support, monitor and enforce the implementation of CRC rights, offered the best legal protection to children’s rights.

In recent years, attention has shifted to the process of legal implementation of the Convention, specifically the process of legal incorporation. Incorporation is best described as a process to give legal status or standing to the Convention, either in whole or in part, in the domestic legal system. The duty to incorporate can be derived from Article 4 of the Convention which requires states parties to take legislative measures to implement the Convention and it is the guidance of the Committee on the Rights of the Child that this should include measures to incorporate the Convention into national law and to make these rights justiciable. According to Kilkelly, legal implementation presents an incremental and transformative pathway towards greater legal incorporation of the Convention. Now new research by Kilkelly, Lundy and Byrne (eds) published by Intersentia, bears this out on a global scale. An analysis of 12 individual countries – from Mexico to China, from Ireland to Australia, from South Africa to Sweden – presented by national experts with unrivalled knowledge of national law and policy in context provides new evidence of the extent of incorporation of the Convention on the Rights of the Child into national law. Each jurisdiction is distinct, with different social, cultural and political circumstances and varying constitutional and legal traditions. And each has its own story to tell about its relationship with the Convention, its approach to implementation and the impact of the measures adopted to give effect to children’s rights. While some jurisdictions, like Norway and Scotland, have adopted a maximialist approach, by fully incorporating the Convention into national law, others like Australia have to date taken few such measures. While some jurisdictions like Mexico, South Africa and Ireland, have given constitutional expression to children’s rights, with emerging positive effects on law and practice, others, like Wales, have so far preferred indirect incorporation placing a duty on law makers to have regard to the Convention.

Taken together, the result is a rich and nuanced picture of legal incorporation, hallmarked by diverse and evolving approaches. Analysis of these national experiences highlights the factors that enable a state to progress along the road towards full and direct incorporation, considered the high water mark of Convention implementation. The most obvious requirement is political will. In those states like Iceland and Sweden, that have incorporated the Convention, sustained political backing is essential to enable incorporation to make its way through the legislative process. Political engagement across the spectrum is crucial to build momentum and raise public understanding, so that the efforts to incorporate the Convention can be maximised. The second enabler is a commitment to human rights, either as a distinguisher (as is the case in Scotland) or a matter of international reputation as in Norway. Conversely, a conservative or other ideological opposition to human rights including children’s rights can act as a barrier to this progress. This is evident in Australia and in the United States which has yet to ratify the Convention. Transitions in political structures also appear to offer an opening for incorporation of children’s rights. The most notable example of this is South Africa where children’s rights were central to constitutional reform in 1996, while it is also apparent in Wales where devolution provided a turning point in the journey towards incorporation. In both examples, children’s rights were considered an important topic around which diverse interests could unite at a time of change. Momentum towards incorporation is not built on the political process alone, however, and civil society organisations play a vital role in informing public opinion and shaping the national debate around incorporation. This was the case in Mexico where civil society leadership were fundamental in assuring that the legislation provided rights based and comprehensive protection. Likewise, in Scotland, much of the success of the journey to incorporation can be attributed to a strong child rights coalition, as well as the involvement of children themselves. International bodies, like UNICEF, also play an important role, as is the case in China where the organisation’s leadership has been influential in developing children’s rights capacity.

What is evident from studying legal incorporation of the Convention is that no two journeys are equal; no two destinations the same and a certain diversity in approach will always be dictated by the political, cultural, social and economic contexts. An analysis of the hallmarks of successful incorporation reveals a number of qualitative factors that distinguish one approach from another. The first is that children are recognised as rights holders, through legislation that places duties on public bodies to recognise and vindicate those rights. The result can be a reshaping of the contract between children and duty bearers. The second success factor is that children’s rights are justiciable and can be enforced through legal mechanisms. While public interest litigation can usefully leverage constitutional and legislative children’s rights provisions as in South Africa and Mexico, even where those are general rather than specific to children – as in the case of the United States – they can have positive effect. The third factor that arises through incorporation is visibility. The stronger the form of incorporation, the greater the profile that children’s rights will have in the legal system, in law and policy making and among the responsibilities of those who work with and for children including in their professional development. Although the journey can be gradual and staged, incorporation puts down a clear marker of expectation of the direction of travel creating visibility around children’s rights at a national level.

In conclusion, it is important to recognise that even with the strongest form of legal incorporation at the national level will not guarantee that children’s rights are always respected, protected and fulfilled. Continuous law reform, resourcing and focus are all necessary to ensure that children enjoy their rights in practice in their everyday lives. While the case for legal incorporation should not rest on its outcomes for children, it certainly generates impacts that bring tangible benefits to children’s enjoyment of their rights.

Posted by Professor Ursula Kilkelly, Centre for Children’s Rights and Family Law, School of Law, University College Cork, Ireland

Postscript

In a judgment handed down on 6 October 2021, the Supreme Court of the United Kingdom found parts of the UNCRC (Incorporation) Scotland Bill to be outwith the competence of the Scottish Parliament, finding they must be amended to proceed. The full implications of this important judgment warrant detailed consideration.