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Laying the Foundations for Children's Rights

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Laying the Foundations for Children's Rights FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page i Innocenti Insight LAYING THE FOUNDATIONS FOR CHILDREN’S RIGHTS An Independent Study of some Key Legal and Institutional Aspects of the Impact of the Convention on the Rights of the Child by Philip Alston and John Tobin with the assistance of Mac Darrow FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page ii Acknowledgements The idea for this study first came from Mehr Khan who was then the Director of the UNICEF Innocenti Research Centre in Florence. It was subsequently strongly supported by her successor Marta Santos Pais. The vision and encouragement shown by each of them was crucial to enabling the completion of the study, albeit over a significantly longer period of time than had originally been planned. The work on the study was supported by generous funding from the Swedish International Development Agency and by the Innocenti Center itself. In the initial consultations important contributions were made by Stephen Lewis, Graça Machel, Thomas Hammarberg, Gerison Lansdown, and Mary Racelis. Apart from the work undertaken by the two principal authors, the most important contribution to the study was made by Macalastair Darrow who prepared a detailed case study of the Indonesian response to the Asian financial cri- sis which provided the basis for the relevant sections of this study. The authors are most grateful to those who responded to requests for assistance or advice in connection with the preparation of the study. Most of these are listed in the Annex to the study. Layout: Bernard & Co, Siena, Italy Printed by Giuntina, Florence, Italy Front cover picture: UNICEF/ HQ96-0529/Shehzad Noorani © 2005 United Nations Children’s Fund (UNICEF) ISBN: 88-89129-19-0 ii Innocenti Insight FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page iii The UNICEF Innocenti Research Centre The UNICEF Innocenti Research Centre in Florence, Italy, was established in 1988 to strengthen the research capability of the United Nations Children’s Fund (UNICEF) and to support its advocacy for children worldwide. The Centre (formally known as the International Child Development Centre) helps to identify and research cur- rent and future areas of UNICEF’s work. Its prime objectives are to improve international understanding of issues relating to children’s rights and to help facilitate the full implementation of the United Nations Convention on the Rights of the Child in both industrialized and developing countries. The Centre’s publications are contri- butions to a global debate on child rights issues and include a wide range of opinions. For that reason, the Centre may produce publications that do not necessarily reflect UNICEF policies or approaches on some topics. The views expressed are those of the authors and are published by the Centre in order to stimulate further dia- logue on child rights. The Centre collaborates with its host institution in Florence, the Istituto degli Innocenti, in selected areas of work. Core funding for the Centre is provided by the Government of Italy, while financial sup- port for specific projects is also provided by other governments, international institutions and private sources. • Philip Alston is professor of Law, and Faculty Director of the Center for Human Rights and Global Justice, New York University Law School, and former Chairperson of the UN Committee on Economic, Social and Cultural Rights (1991-1998). • John Tobin is Lecturer, Faculty of Law, University of Melbourne. • Mac Darrow Ph.D (University of Utrecht), previously Researcher at the European University Institute, Florence produced a first draft of the materials covered in Part F of this Study. He is currently an official in the United Nations Office of the High Commissioner for Human Rights, in Geneva. The opinions expressed are those of the authors and editors and do not necessarily reflect the policies or views of UNICEF. All correspondence should be addressed to: UNICEF Innocenti Research Centre Piazza SS. Annunziata 12 50122 Florence, Italy Tel: (+39) 055 20 330 Fax: (+39) 055 20 33 220 Email general: [email protected] Email publication orders: [email protected] Website: www.unicef.org/irc and www.unicef-irc.org Innocenti Insight iii FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page iv iv Innocenti Insight FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page v FOREWORD The adoption of the Convention on the Rights of the which the international human rights regime and Child on 20 November 1989 represented the culmi- the systems developed at the regional levels – in nation of a long process to secure international particular in Africa, the Americas and Europe – have recognition of a comprehensive and path-breaking been adapted to take full account of the principles statement of children’s rights. More importantly, and provisions of the Convention. It presents an however, it also marks the beginning of a new stage impressive survey of achievements at the national during which due attention has been given to the level, in terms of the constitutional recognition of challenge of translating the new international stan- children’s rights and the development of national dards into the domestic law and practice of States institutions designed to ensure their promotion. and of ensuring that the international community, in Consideration is also given to the adequacy of efforts its many manifestations, contributes in all relevant undertaken by the international community to pro- ways to the promotion of children’s rights. mote children’s rights, including the approach adopt- This study explores the extent to which these efforts ed by the UN Commission on Human Rights and the have succeeded. It has been conducted by two well- importance accorded to the rights of the child by the known scholars, Philip Alston and John Tobin and it is international financial institutions. The study con- an important component of the research conducted cludes with an examination of the approach adopted by the Innocenti Research Centre on the process of by the World Bank and the International Monetary social change generated by the Convention on the Fund, both in general terms and in response to the Rights of the Child. The study addresses the legal and crisis that Indonesia endured in the late 1990s within institutional arrangements which have been put in the broader Asian financial crisis. place at the international, regional and national levels The major strength of this study is its systematic to ensure that the Convention is promoted effectively focus on the steps needed to establish adequate and to create the structures of accountability which legal and institutional foundations at the various are the hallmark of the realization of human rights. levels to ensure that the rights recognized in the While law is by no means the only dimension of Convention will be respected and promoted. The these efforts – and indeed in many contexts it will be study reflects extensive empirical research as well less important than other approaches – it nonetheless as careful legal analysis and constitutes a major remains a crucial ingredient in securing the effective contribution to our understanding of the global implementation of the Convention. impact of the Convention on the Rights of the Child. The study situates the Convention on the Rights of the Child within the process of the historical evolu- Marta Santos Pais tion of children’s rights and examines the extent to Director, UNICEF Innocenti Research Centre Innocenti Insight v FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page vi vi Innocenti Insight FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page vii CONTENTS Overview . ix 1 - Putting children’s rights into perspective . 1 1.1 - Introduction to the study . 1 1.2 - Putting children’s rights into historical perspective . 3 2 - Laying the legal and institutional foundations at the regional and national levels . 9 2.1 - Securing universal ratification of the Convention . 9 2.2 - Promoting regional-level recognition of children’s rights . 12 2.3 - Promoting the constitutional recognition of children’s rights . 21 3 - Towards Accountability . 33 A - Monitoring and accountability . 33 3.1 - The importance of the principle of accountability . 33 B - The role of some key actors in enhancing children’s rights accountability . 34 3.2 - The UN Commission on Human Rights . 34 3.3 - National Institutions . 39 3.4 - Civil Society . 51 C - Challenges to children’s rights accountability . 56 3.5 - Decentralization . 56 3.6 - Non-State actors . 60 4 - The World Bank and the IMF: A Case Study . 67 The CRC and the international financial institutions . 67 4.1 - The effects of the crisis in Indonesia on children’s rights . 68 4.2 - The roles of the IMF and the World Bank in relation to children’s rights . 70 4.3 - Legal mandate aspects of the IFIs involvement with the CRC . 78 4.4 - Explaining, the reluctance to take the CRC fully on board . 82 4.5 - Recommendations of general relevance that emerge from the Indonesian case study . 87 Acknowledgements. 105 Innocenti Insight vii FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page viii viii Innocenti Insight FOUNDATION-GB 10-5-05 06-06-2005 16:54 Page ix OVERVIEW OF THE STUDY The Convention on the Rights of the Child was Part IV of the report presents a case study of the adopted 15 years ago. This study seeks to evaluate role played by two of the most important and influ- the extent to which States and the international com- ential of international institutions – the World Bank munity have subsequently succeeded in putting in and the International Monetary Fund. In addition to place the foundations of legal and political account- reflecting on their general role in this regard, the ability, which are an essential component of efforts study takes an applied approach by examining the to make a reality of children’s rights.
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