General Comments of the Committee on the Rights of
the Child
The Aims of Education, The significance of article 29(1),
General Comment 1
The Committee on the rights of the child, General
Comment 1, Twenty-sixth session (2001)
Article 29, paragraph 1, of the Convention on the Rights
of the Child is of far reaching importance. The aims of
education that it sets out, which have been agreed to by
all States parties, promote, support and protect the core
value of the Convention: the human dignity innate in every
child and his or her equal and inalienable rights. These
aims, set out in the five subparagraphs of article 29 (1),
are all linked directly to the realization of the child's
human dignity and rights, taking into account the child=s
special developmental needs and diverse evolving capacities.
The aims are: the holistic development of the full potential
of the child (29 (1) (a)), including development of respect
for human rights (29 (1) (b)), an enhanced sense of identity
and affiliation (29 (1) (c)), and his or her socialization
and interaction with others (29 (1) (d)) and with the environment
(29 (1) (e)).
Article 29 (1) not only adds to the right to education recognized
in article 28 a qualitative dimension which reflects the
rights and inherent dignity of the child; it also insists
upon the need for education to be child centred, child friendly
and empowering, and it highlights the need for educational
processes to be based upon the very principles it enunciates1.
The education to which every child has a right is one designed
to provide the child with life skills, to strengthen the
child=s capacity to enjoy the full range of human rights
and to promote a culture which is infused by appropriate
human rights values. The goal is to empower the child by
developing his or her skills, learning and other capacities,
human dignity, self esteem and self confidence. Education
in this context goes far beyond formal schooling to embrace
the broad range of life experiences and learning processes
which enable children, individually and collectively, to
develop their personalities, talents and abilities and to
live a full and satisfying life within society.
The child's right to education is not only a matter of access
(art. 28) but also of content. An education with its contents
firmly rooted in the values of article 29 (1) is for every
child an indispensable tool for her or his efforts to achieve
in the course of her or his life a balanced, human rights
friendly response to the challenges that accompany a period
of fundamental change driven by globalization, new technologies
and related phenomena. Such challenges include the tensions
between, inter alia, the global and the local;
the individual and the collective; tradition and modernity;
long and short term considerations; competition and equality
of opportunity; the expansion of knowledge and the capacity
to assimilate it; and the spiritual and the material2.
And yet, in the national and international programmes and
policies on education that really count, the elements embodied
in article 29 (1) seem all too often to be either largely
missing or present only as a cosmetic afterthought.
Article 29 (1) states that the States parties agree that
education should be directed to a wide range of values.
This agreement overcomes the boundaries of religion, nation
and culture built across many parts of the world. At first
sight, some of the diverse values expressed in article 29
(1) might be thought to be in conflict with one another
in certain situations. Thus, efforts to promote understanding,
tolerance and friendship among all peoples, to which paragraph
(1) (d) refers, might not always be automatically compatible
with policies designed, in accordance with paragraph (1)
(c), to develop respect for the child's own cultural identity,
language and values, for the national values of the country
in which the child is living, the country from which he
or she may originate, and for civilizations different from
his or her own. But in fact, part of the importance of this
provision lies precisely in its recognition of the need
for a balanced approach to education and one which succeeds
in reconciling diverse values through dialogue and respect
for difference. Moreover, children are capable of playing
a unique role in bridging many of the differences that have
historically separated groups of people from one another.
The functions of article 29 (1)
Article 29 (1) is much more than an inventory or listing
of different objectives which education should seek to achieve.
Within the overall context of the Convention it serves to
highlight, inter alia, the following dimensions.
First, it emphasizes the indispensable interconnected nature
of the Convention=s provisions. It draws upon, reinforces,
integrates and complements a variety of other provisions
and cannot be properly understood in isolation from them.
In addition to the general principles of the Convention
- non discrimination (art. 2), the best interest of the
child (art. 3), the right to life, survival and development
(art. 6) and the right to express views and have them taken
into account (art. 12) - many other provisions may be mentioned,
such as but not limited to the rights and responsibilities
of parents (arts. 5 and 18), freedom of expression (art.
13), freedom of thought (art. 14), the right to information
(art. 17), the rights of children with disabilities (art.
23), the right to education for health (art. 24), the right
to education (art. 28), and the linguistic and cultural
rights of children belonging to minority groups (art. 30).
Children's rights are not detached or isolated values devoid
of context, but exist within a broader ethical framework
which is partly described in article 29 (1) and in the preamble
to the Convention. Many of the criticisms that have been
made of the Convention are specifically answered by this
provision. Thus, for example, this article underlines the
importance of respect for parents, of the need to view rights
within their broader ethical, moral, spiritual, cultural
or social framework and of the fact that most children's
rights, far from being externally imposed, are embedded
within the values of local communities.
Second, the article attaches importance to the process by
which the right to education is to be promoted. Thus, efforts
to promote the enjoyment of other rights must not be undermined,
and should be reinforced, by the values imparted in the
educational process. This includes not only the content
of the curriculum but also the educational processes, the
pedagogical methods and the environment within which education
takes place, whether it be the home, school, or elsewhere.
Children do not lose their human rights by virtue of passing
through the school gates. Thus, for example, education must
be provided in a way that respects the inherent dignity
of the child and enables the child to express his or her
views freely in accordance with article 12 (1) and to participate
in school life. Education must also be provided in a way
that respects the strict limits on discipline reflected
in article 28 (2) and promotes non violence in school. The
Committee has repeatedly made clear in its concluding observations
that the use of corporal punishment does not respect the
inherent dignity of the child nor the strict limits on school
discipline. Compliance with the values recognized in article
29 (1) clearly requires that schools be child friendly in
the fullest sense of the term and that they be consistent
in all respects with the dignity of the child. The participation
of children in school life, the creation of school communities
and student councils, peer education and peer counselling,
and the involvement of children in school disciplinary proceedings
should be promoted as part of the process of learning and
experiencing the realization of rights.
Third, while article 28 focuses upon the obligations of
State parties in relation to the establishment of educational
systems and in ensuring access thereto, article 29 (1) underlies
the individual and subjective right to a specific quality
of education. Consistent with the Convention=s emphasis
on the importance of acting in the best interests of the
child, this article emphasizes the message of child centred
education: that the key goal of education is the development
of the individual child's personality, talents and abilities,
in recognition of the fact that every child has unique characteristics,
interests, abilities, and learning needs3. Thus,
the curriculum must be of direct relevance to the child's
social, cultural, environmental and economic context and
to his or her present and future needs and take full account
of the child's evolving capacities; teaching methods should
be tailored to the different needs of different children.
Education must also be aimed at ensuring that essential
life skills are learnt by every child and that no child
leaves school without being equipped to face the challenges
that he or she can expect to be confronted with in life.
Basic skills include not only literacy and numeracy but
also life skills such as the ability to make well balanced
decisions; to resolve conflicts in a non violent manner;
and to develop a healthy lifestyle, good social relationships
and responsibility, critical thinking, creative talents,
and other abilities which give children the tools needed
to pursue their options in life.
Discrimination on the basis of any of the grounds listed
in article 2 of the Convention, whether it is overt or hidden,
offends the human dignity of the child and is capable of
undermining or even destroying the capacity of the child
to benefit from educational opportunities. While denying
a child's access to educational opportunities is primarily
a matter which relates to article 28 of the Convention,
there are many ways in which failure to comply with the
principles contained in article 29 (1) can have a similar
effect. To take an extreme example, gender discrimination
can be reinforced by practices such as a curriculum which
is inconsistent with the principles of gender equality,
by arrangements which limit the benefits girls can obtain
from the educational opportunities offered, and by unsafe
or unfriendly environments which discourage girls' participation.
Discrimination against children with disabilities is also
pervasive in many formal educational systems and in a great
many informal educational settings, including in the home4.
Children with HIV/AIDS are also heavily discriminated against
in both settings5. All such discriminatory practices
are in direct contradiction with the requirements in article
29 (1) (a) that education be directed to the development
of the child's personality, talents and mental and physical
abilities to their fullest potential.
The Committee also wishes to highlight the links between
article 29 (1) and the struggle against racism, racial discrimination,
xenophobia and related intolerance. Racism and related phenomena
thrive where there is ignorance, unfounded fears of racial,
ethnic, religious, cultural and linguistic or other forms
of difference, the exploitation of prejudices, or the teaching
or dissemination of distorted values. A reliable and enduring
antidote to all of these failings is the provision of education
which promotes an understanding and appreciation of the
values reflected in article 29 (1), including respect for
differences, and challenges all aspects of discrimination
and prejudice. Education should thus be accorded one of
the highest priorities in all campaigns against the evils
of racism and related phenomena. Emphasis must also be placed
upon the importance of teaching about racism as it has been
practised historically, and particularly as it manifests
or has manifested itself within particular communities.
Racist behaviour is not something engaged in only by others.
It is therefore important to focus on the child's own community
when teaching human and children's rights and the principle
of non discrimination. Such teaching can effectively contribute
to the prevention and elimination of racism, ethnic discrimination,
xenophobia and related intolerance.
Fourth, article 29 (1) insists upon a holistic approach
to education which ensures that the educational opportunities
made available reflect an appropriate balance between promoting
the physical, mental, spiritual and emotional aspects of
education, the intellectual, social and practical dimensions,
and the childhood and lifelong aspects. The overall objective
of education is to maximize the child's ability and opportunity
to participate fully and responsibly in a free society.
It should be emphasized that the type of teaching that is
focused primarily on accumulation of knowledge, prompting
competition and leading to an excessive burden of work on
children, may seriously hamper the harmonious development
of the child to the fullest potential of his or her abilities
and talents. Education should be child friendly, inspiring
and motivating the individual child. Schools should foster
a humane atmosphere and allow children to develop according
to their evolving capacities.
Fifth, it emphasizes the need for education to be designed
and provided in such a way that it promotes and reinforces
the range of specific ethical values enshrined in the Convention,
including education for peace, tolerance, and respect for
the natural environment, in an integrated and holistic manner.
This may require a multidisciplinary approach. The promotion
and reinforcement of the values of article 29 (1) are not
only necessary because of problems elsewhere, but must also
focus on problems within the child's own community. Education
in this regard should take place within the family, but
schools and communities must also play an important role.
For example, for the development of respect for the natural
environment, education must link issues of environmental
and sustainable development with socio economic, sociocultural
and demographic issues. Similarly, respect for the natural
environment should be learnt by children at home, in school
and within the community, encompass both national and international
problems, and actively involve children in local, regional
or global environmental projects.
Sixth, it reflects the vital role of appropriate educational
opportunities in the promotion of all other human rights
and the understanding of their indivisibility. A child's
capacity to participate fully and responsibly in a free
society can be impaired or undermined not only by outright
denial of access to education but also by a failure to promote
an understanding of the values recognized in this article.
Human rights education
Article 29 (1) can also be seen as a foundation stone for
the various programmes of human rights education called
for by the World Conference on Human Rights, held in Vienna
in 1993, and promoted by international agencies. Nevertheless,
the rights of the child have not always been given the prominence
they require in the context of such activities. Human rights
education should provide information on the content of human
rights treaties. But children should also learn about human
rights by seeing human rights standards implemented in practice,
whether at home, in school, or within the community. Human
rights education should be a comprehensive, lifelong process
and start with the reflection of human rights values in
the daily life and experiences of children6.
The values embodied in article 29 (1) are relevant to children
living in zones of peace but they are even more important
for those living in situations of conflict or emergency.
As the Dakar Framework for Action notes, it is important
in the context of education systems affected by conflict,
natural calamities and instability that educational programmes
be conducted in ways that promote mutual understanding,
peace and tolerance, and that help to prevent violence and
conflict7. Education about international humanitarian
law also constitutes an important, but all too often neglected,
dimension of efforts to give effect to article 29 (1).
Implementation, monitoring and review
The aims and values reflected in this article are stated
in quite general terms and their implications are potentially
very wide ranging. This seems to have led many States parties
to assume that it is unnecessary, or even inappropriate,
to ensure that the relevant principles are reflected in
legislation or in administrative directives. This assumption
is unwarranted. In the absence of any specific formal endorsement
in national law or policy, it seems unlikely that the relevant
principles are or will be used to genuinely inform educational
policies. The Committee therefore calls upon all States
parties to take the necessary steps to formally incorporate
these principles into their education policies and legislation
at all levels.
The effective promotion of article 29 (1) requires the fundamental
reworking of curricula to include the various aims of education
and the systematic revision of textbooks and other teaching
materials and technologies, as well as school policies.
Approaches which do no more than seek to superimpose the
aims and values of the article on the existing system without
encouraging any deeper changes are clearly inadequate. The
relevant values cannot be effectively integrated into, and
thus be rendered consistent with, a broader curriculum unless
those who are expected to transmit, promote, teach and,
as far as possible, exemplify the values have themselves
been convinced of their importance. Pre service and in service
training schemes which promote the principles reflected
in article 29 (1) are thus essential for teachers, educational
administrators and others involved in child education. It
is also important that the teaching methods used in schools
reflect the spirit and educational philosophy of the Convention
on the Rights of the Child and the aims of education laid
down in article 29 (1).
In addition, the school environment itself must thus reflect
the freedom and the spirit of understanding, peace, tolerance,
equality of sexes, and friendship among all peoples, ethnic,
national and religious groups and persons of indigenous
origin called for in article 29 (1) (b) and (d). A school
which allows bullying or other violent and exclusionary
practices to occur is not one which meets the requirements
of article 29 (1). The term "human rights education"
is too often used in a way which greatly oversimplifies
its connotations. What is needed, in addition to formal
human rights education, is the promotion of values and policies
conducive to human rights not only within schools and universities
but also within the broader community.
In general terms, the various initiatives that States parties
are required to take pursuant to their Convention obligations
will be insufficiently grounded in the absence of widespread
dissemination of the text of the Convention itself, in accordance
with the provisions of article 42. This will also facilitate
the role of children as promoters and defenders of children's
rights in their daily lives. In order to facilitate broader
dissemination, States parties should report on the measures
they have taken to achieve this objective and the Office
of the High Commissioner for Human Rights should develop
a comprehensive database of the language versions of the
Convention that have been produced.
The media, broadly defined, also have a central role to
play, both in promoting the values and aims reflected in
article 29 (1) and in ensuring that their activities do
not undermine the efforts of others to promote those objectives.
Governments are obligated by the Convention, pursuant to
article 17 (a), to take all appropriate steps to "encourage
the mass media to disseminate information and material of
social and cultural benefit to the child".8
The Committee calls upon States parties to devote
more attention to education as a dynamic process and to
devising means by which to measure changes over time in
relation to article 29 (1). Every child has the right to
receive an education of good quality which in turn requires
a focus on the quality of the learning environment, of teaching
and learning processes and materials, and of learning outputs.
The Committee notes the importance of surveys that may provide
an opportunity to assess the progress made, based upon consideration
of the views of all actors involved in the process, including
children currently in or out of school, teachers and youth
leaders, parents, and educational administrators and supervisors.
In this respect, the Committee emphasizes the role of national
level monitoring which seeks to ensure that children, parents
and teachers can have an input in decisions relevant to
education.
The Committee calls upon States parties to develop a comprehensive
national plan of action to promote and monitor realization
of the objectives listed in article 29 (1). If such a plan
is drawn up in the larger context of a national action plan
for children, a national human rights action plan, or a
national human rights education strategy, the Government
must ensure that it nonetheless addresses all of the issues
dealt with in article 29 (1) and does so from a child rights
perspective. The Committee urges that the United Nations
and other international bodies concerned with educational
policy and human rights education seek better coordination
so as to enhance the effectiveness of the implementation
of article 29 (1).
The design and implementation of programmes to promote the
values reflected in this article should become part of the
standard response by Governments to almost all situations
in which patterns of human rights violations have occurred.
Thus, for example, where major incidents of racism, racial
discrimination, xenophobia and related intolerance occur
which involve those under 18, it can reasonably be presumed
that the Government has not done all that is should to promote
the values reflected in the Convention generally, and in
article 29 (1) in particular. Appropriate additional measures
under article 29 (1) should therefore be adopted which include
research on and adoption of whatever educational techniques
might have a positive impact in achieving the rights recognized
in the Convention.
States parties should also consider establishing a review
procedure which responds to complaints that existing policies
or practices are not consistent with article 29 (1). Such
review procedures need not necessarily entail the creation
of new legal, administrative, or educational bodies. They
might also be entrusted to national human rights institutions
or to existing administrative bodies. The Committee requests
each State party when reporting on this article to identify
the genuine possibilities that exist at the national or
local level to obtain a review of existing approaches which
are claimed to be incompatible with the Convention. Information
should be provided as to how such reviews can be initiated
and how many such review procedures have been undertaken
within the reporting period.
In order to better focus the process of examining States
parties' reports dealing with article 29 (1), and in accordance
with the requirement in article 44 that reports shall indicate
factors and difficulties, the Committee requests each State
party to provide a detailed indication in its periodic reports
of what it considers to be the most important priorities
within its jurisdiction which call for a more concerted
effort to promote the values reflected in this provision
and to outline the programme of activities which it proposes
to take over the succeeding five years in order to address
the problems identified.
The Committee calls upon United Nations bodies and agencies
and other competent bodies whose role is underscored in
article 45 of the Convention to contribute more actively
and systematically to the Committee's work in relation to
article 29 (1).
Implementation of comprehensive national plans of action
to enhance compliance with article 29 (1) will require human
and financial resources which should be available to the
maximum extent possible, in accordance with article 4. Therefore,
the Committee considers that resource constraints cannot
provide a justification for a State party's failure to take
any, or enough, of the measures that are required. In this
context, and in light of the obligations upon States parties
to promote and encourage international cooperation both
in general terms (articles 4 and 45 of the Convention) and
in relation to education (art. 28 (3)), the Committee urges
States parties providing development cooperation to ensure
that their programmes are designed so as to take full account
of the principles contained in article 29 (1).
i In this regard, the Committee takes note of
General Comment No. 13 (1999) of the Committee on Economic,
Social and Cultural Rights on the right to education, which
deals, inter alia, with the aims of education under
article 13 (1) of the International Covenant on Economic,
Social and Cultural Rights. The Committee also draws attention
to the general guidelines regarding the form and contents
of periodic reports to be submitted by States parties under
article 44, paragraph 1 (b), of the Convention (CRC/C/58,
paras. 112 116).
ii United Nations Educational, Scientific and Cultural
Organization, Learning: The Treasure Within, Report
of the International Commission on Education for the 21st
Century, 1996 pp. 16 18.
iii United Nations Educational, Scientific and
Cultural Organization, The Salamanca Statement and Framework
for Action on Special Needs Education, 1994, p. viii.
iv See General Comment No. 5 (1994) of the Committee
on Economic, Social and Cultural Rights on persons with disabilities.
v See the recommendations adopted by the Committee
on the Rights of the Child after its day of general discussion
in 1998 on children living in a world with HIV/AIDS (A/55/41,
para. 1536).
vi See General Assembly resolution 49/184 of 23
December 1994 proclaiming the United Nations Decade for Human
Rights Education.
vii Education for All: Meeting our Collective Commitments,
adopted at the World Education Forum, Dakar, 26 28 April 2000.
viii The Committee recalls the recommendations
in this respect which emerged from its day of general discussion
in 1996 on the child and the media (see A/53/41, para. 1396).
COMMITTEE ON THE RIGHTS OF THE CHILD
Thirty-second session
13-31 January 2003
General Comment No. 2 (2002) The role of independent national
human rights institutions in the promotion and protection
of the rights of the child
1. Article 4 of the Convention on the Rights of the Child
obliges States parties to "undertake all appropriate
legislative, administrative and other measures for the implementation
of the rights recognized in the present Convention".
Independent national human rights institutions (NHRIs) are
an important mechanism to promote and ensure the implementation
of the Convention, and the Committee on the Rights of the
Child considers the establishment of such bodies to fall
within the commitment made by States parties upon ratification
to ensure the implementation of the Convention and advance
the universal realization of children's rights. In this
regard, the Committee has welcomed the establishment of
NHRIs and children's ombudspersons/children's commissioners
and similar independent bodies for the promotion and monitoring
of the implementation of the Convention in a number of States
parties.
2. The Committee issues this general comment in order to
encourage States parties to establish an independent institution
for the promotion and monitoring of implementation of the
Convention and to support them in this regard by elaborating
the essential elements of such institutions and the activities
which should be carried out by them. Where such institutions
have already been established, the Committee calls upon
States to review their status and effectiveness for promoting
and protecting children's rights, as enshrined in the Convention
on the Rights of the Child and other relevant international
instruments.
3. The World Conference on Human Rights, held in 1993, in
the Vienna Declaration and Programme of Action reaffirmed
"… the important and constructive role played
by national institutions for the promotion and protection
of human rights", and encouraged "… the
establishment and strengthening of national institutions".
The General Assembly and the Commission on Human Rights
have repeatedly called for the establishment of national
human rights institutions, underlining the important role
NHRIs play in promoting and protecting human rights and
enhancing public awareness of those rights. In its general
guidelines for periodic reports, the Committee requires
that States parties furnish information on "any independent
body established to promote and protect the rights of the
child …",i hence, it consistently
addresses this issue during its dialogue with States parties.
4. NHRIs should be established in compliance with the Principles
relating to the status of national institutions for the
promotion and protection of human rights (The "Paris
Principles") adopted by the General Assembly in 1993ii
transmitted by the Commission on Human Rights in 1992iii.
These minimum standards provide guidance for the establishment,
competence, responsibilities, composition, including pluralism,
independence, methods of operation, and quasi-judicial activities
of such national bodies.
5. While adults and children alike need independent NHRIs
to protect their human rights, additional justifications
exist for ensuring that children's human rights are given
special attention. These include the facts that children's
developmental state makes them particularly vulnerable to
human rights violations; their opinions are still rarely
taken into account; most children have no vote and cannot
play a meaningful role in the political process that determines
Governments' response to human rights; children encounter
significant problems in using the judicial system to protect
their rights or to seek remedies for violations of their
rights; and children's access to organizations that may
protect their rights is generally limited.
6. Specialist independent human rights institutions for
children, ombudspersons or commissioners for children's
rights have been established in a growing number of States
parties. Where resources are limited, consideration must
be given to ensuring that the available resources are used
most effectively for the promotion and protection of everyone's
human rights, including children's, and in this context
development of a broad-based NHRI that includes a specific
focus on children is likely to constitute the best approach.
A broad-based NHRI should include within its structure either
an identifiable commissioner specifically responsible for
children's rights, or a specific section or division responsible
for children's rights.
7. It is the view of the Committee that every State needs
an independent human rights institution with responsibility
for promoting and protecting children's rights. The Committee's
principal concern is that the institution, whatever its
form, should be able, independently and effectively, to
monitor, promote and protect children's rights. It is essential
that promotion and protection of children's rights is "mainstreamed"
and that all human rights institutions existing in a country
work closely together to this end.
Mandate and powers
8. NHRIs should, if possible, be constitutionally entrenched
and must at least be legislatively mandated. It is the view
of the Committee that their mandate should include as broad
a scope as possible for promoting and protecting human rights,
incorporating the Convention on the Rights of the Child,
its Optional Protocols and other relevant international
human rights instruments - thus effectively covering children's
human rights, in particular their civil, political, economic,
social and cultural rights. The legislation should include
provisions setting out specific functions, powers and duties
relating to children linked to the Convention on the Rights
of the Child and its Optional Protocols. If the NHRI was
established before the existence of the Convention, or without
expressly incorporating it, necessary arrangements, including
the enactment or amendment of legislation, should be put
in place so as to ensure conformity of the institution's
mandate with the principles and provisions of the Convention.
9. NHRIs should be accorded such powers as are necessary
to enable them to discharge their mandate effectively, including
the power to hear any person and obtain any information
and document necessary for assessing the situations falling
within their competence. These powers should include the
promotion and protection of the rights of all children under
the jurisdiction of the State party in relation not only
to the State but to all relevant public and private entities.
Establishment process
10. The NHRI establishment process should be consultative,
inclusive and transparent, initiated and supported at the
highest levels of Government and inclusive of all relevant
elements of the State, the legislature and civil society.
In order to ensure their independence and effective functioning,
NHRIs must have adequate infrastructure, funding (including
specifically for children's rights, within broad-based institutions),
staff, premises, and freedom from forms of financial control
that might affect their independence.
Resources
11. While the Committee acknowledges that this is a very
sensitive issue and that State parties function with varying
levels of economic resources, the Committee believes that
it is the duty of States to make reasonable financial provision
for the operation of national human rights institutions
in light of article 4 of the Convention. The mandate and
powers of national institutions may be meaningless, or the
exercise of their powers limited, if the national institution
does not have the means to operate effectively to discharge
its powers.
Pluralistic representation
12. NHRIs should ensure that their composition includes
pluralistic representation of the various elements of civil
society involved in the promotion and protection of human
rights. They should seek to involve, among others, the following:
human rights, anti-discrimination and children's rights
non-governmental organizations (NGOs), including child-
and youth-led organizations; trade unions; social and professional
organizations (of doctors, lawyers, journalists, scientists,
etc.); universities and experts, including children's rights
experts. Government departments should be involved in an
advisory capacity only. NHRIs should have appropriate and
transparent appointment procedures, including an open and
competitive selection process.
Providing remedies for breaches of children's rights
13. NHRIs must have the power to consider individual complaints
and petitions and carry out investigations, including those
submitted on behalf of or directly by children. In order
to be able to effectively carry out such investigations,
they must have the powers to compel and question witnesses,
access relevant documentary evidence and access places of
detention. They also have a duty to seek to ensure that
children have effective remedies - independent advice, advocacy
and complaints procedures - for any breaches of their rights.
Where appropriate, NHRIs should undertake mediation and
conciliation of complaints.
14. NHRIs should have the power to support children taking
cases to court, including the power (a) to take cases concerning
children's issues in the name of the NHRI and (b) to intervene
in court cases to inform the court about the human rights
issues involved in the case.
Accessibility and participation
15. NHRIs should be geographically and physically accessible
to all children. In the spirit of article 2 of the Convention,
they should proactively reach out to all groups of children,
in particular the most vulnerable and disadvantaged, such
as (but not limited to) children in care or detention, children
from minority and indigenous groups, children with disabilities,
children living in poverty, refugee and migrant children,
street children and children with special needs in areas
such as culture, language, health and education. NHRI legislation
should include the right of the institution to have access
in conditions of privacy to children in all forms of alternative
care and to all institutions that include children.
16. NHRIs have a key role to play in promoting respect for
the views of children in all matters affecting them, as
articulated in article 12 of the Convention, by Government
and throughout society. This general principle should be
applied to the establishment, organization and activities
of national human rights institutions. Institutions must
ensure that they have direct contact with children and that
children are appropriately involved and consulted. Children's
councils, for example, could be created as advisory bodies
for NHRIs to facilitate the participation of children in
matters of concern to them.
17. NHRIs should devise specially tailored consultation
programmes and imaginative communication strategies to ensure
full compliance with article 12 of the Convention. A range
of suitable ways in which children can communicate with
the institution should be established.
18. NHRIs must have the right to report directly, independently
and separately on the state of children's rights to the
public and to parliamentary bodies. In this respect, States
parties must ensure that an annual debate is held in Parliament
to provide parliamentarians with an opportunity to discuss
the work of the NHRI in respect of children's rights and
the State's compliance with the Convention.
Recommended activities
19. The following is an indicative, but not exhaustive,
list of the types of activities which NHRIs should carry
out in relation to the implementation of children's rights
in light of the general principles of the Convention. They
should:
(a) Undertake investigations into any situation of violation
of children's rights, on complaint or on their own initiative,
within the scope of their mandate;
(b) Conduct inquiries on matters relating to children's
rights;
(c) Prepare and publicize opinions, recommendations and
reports, either at the request of national authorities
or on their own initiative, on any matter relating to
the promotion and protection of children's rights;
(d) Keep under review the adequacy and effectiveness of
law and practice relating to the protection of children's
rights;
(e) Promote harmonization of national legislation, regulations
and practices with the Convention on the Rights of the
Child, its Optional Protocols and other international
human rights instruments relevant to children's rights
and promote their effective implementation, including
through the provision of advice to public and private
bodies in construing and applying the Convention;
(f) Ensure that national economic policy makers take children's
rights into account in setting and evaluating national
economic and development plans;
(g) Review and report on the Government's implementation
and monitoring of the state of children's rights, seeking
to ensure that statistics are appropriately disaggregated
and other information collected on a regular basis in
order to determine what must be done to realize children's
rights;
(h) Encourage ratification of or accession to any relevant
international human rights instruments;
(i) In accordance with article 3 of the Convention requiring
that the best interests of children should be a primary
consideration in all actions concerning them, ensure that
the impact of laws and policies on children is carefully
considered from development to implementation and beyond;
(j) In light of article 12, ensure that the views of children
are expressed and heard on matters concerning their human
rights and in defining issues relating to their rights;
(k) Advocate for and facilitate meaningful participation
by children's rights NGOs, including organizations comprised
of children themselves, in the development of domestic
legislation and international instruments on issues affecting
children;
(l) Promote public understanding and awareness of the
importance of children's rights and, for this purpose,
work closely with the media and undertake or sponsor research
and educational activities in the field;
(m) In accordance with article 42 of the Convention which
obligates State parties to "make the principles and
provisions of the Convention widely known, by appropriate
and active means, to adults and children alike",
sensitize the Government, public agencies and the general
public to the provisions of the Convention and monitor
ways in which the State is meeting its obligations in
this regard;
(n) Assist in the formulation of programmes for the teaching
of, research into and integration of children's rights
in the curricula of schools and universities and in professional
circles;
(o) Undertake human rights education which specifically
focuses on children (in addition to promoting general
public understanding about the importance of children's
rights);
(p) Take legal proceedings to vindicate children's rights
in the State or provide legal assistance to children;
(q) Engage in mediation or conciliation processes before
taking cases to court, where appropriate;
(r) Provide expertise in children's rights to the courts,
in suitable cases as amicus curiae or intervenor;
(s) In accordance with article 3 of the Convention which
obliges States parties to "ensure that the institutions,
services and facilities responsible for the care or protection
of children shall conform with the standards established
by competent authorities, particularly in the areas of
safety, health, in the number and suitability of their
staff, as well as competent supervision", undertake
visits to juvenile homes (and all places where children
are detained for reform or punishment) and care institutions
to report on the situation and to make recommendations
for improvement;
(t) Undertake such other activities as are incidental
to the above.
Reporting to the Committee on the Rights of the Child and
cooperation between NHRIs and United Nations agencies and
human rights mechanisms
20. NHRIs should contribute independently to the reporting
process under the Convention and other relevant international
instruments and monitor the integrity of government reports
to international treaty bodies with respect to children's
rights, including through dialogue with the Committee on
the Rights of the Child at its pre-sessional working group
and with other relevant treaty bodies.
21. The Committee requests that States parties include detailed
information on the legislative basis and mandate and principal
relevant activities of NHRIs in their reports to the Committee.
It is appropriate for States parties to consult with independent
human rights institutions during the preparation of reports
to the Committee. However, States parties must respect the
independence of these bodies and their independent role
in providing information to the Committee. It is not appropriate
to delegate to NHRIs the drafting of reports or to include
them in the government delegation when reports are examined
by the Committee.
22. NHRIs should also cooperate with the special procedures
of the Commission on Human Rights, including country and
thematic mechanisms, in particular the Special Rapporteur
on the sale of children, child prostitution and child pornography
and the Special Representative of the Secretary-General
for Children and Armed Conflict.
23. The United Nations has a long-standing programme of
assistance for the establishment and strengthening of national
human rights institutions. This programme, which is based
in the Office of the High Commissioner for Human Rights
(OHCHR), provides technical assistance and facilitates regional
and global cooperation and exchanges among national human
rights institutions. States parties should avail themselves
of this assistance where necessary. The United Nations Children's
Fund (UNICEF) also offers expertise and technical cooperation
in this area.
24. As articulated in article 45 of the Convention, the
Committee may also transmit, as it considers appropriate,
to any specialized United Nations agency, OHCHR and any
other competent body any reports from States parties that
contain a request or indicate a need for technical advice
or assistance in the establishment of NHRIs.
NHRIs and States parties
25. The State ratifies the Convention on the Rights of
the Child and takes on obligations to implement it fully.
The role of NHRIs is to monitor independently the State's
compliance and progress towards implementation and to do
all it can to ensure full respect for children's rights.
While this may require the institution to develop projects
to enhance the promotion and protection of children's rights,
it should not lead to the Government delegating its monitoring
obligations to the national institution. It is essential
that institutions remain entirely free to set their own
agenda and determine their own activities.
NHRIs and NGOs
26. Non-governmental organizations play a vital role in
promoting human rights and children's rights. The role of
NHRIs, with their legislative base and specific powers,
is complementary. It is essential that institutions work
closely with NGOs and that Governments respect the independence
of both NHRIs and NGOs.
Regional and international cooperation
27. Regional and international processes and mechanisms
can strengthen and consolidate NHRIs through shared experience
and skills, as NHRIs share common problems in the promotion
and protection of human rights in their respective countries.
28. In this respect, NHRIs should consult and cooperate
with relevant national, regional and international bodies
and institutions on children's rights issues.
29. Children's human rights issues are not constrained by
national borders and it has become increasingly necessary
to devise appropriate regional and international responses
to a variety of child rights issues (including, but not
limited to, the trafficking of women and children, child
pornography, child soldiers, child labour, child abuse,
refugee and migrant children, etc.). International and regional
mechanisms and exchanges are encouraged, as they provide
NHRIs with an opportunity to learn from each other's experience,
collectively strengthen each other's positions and contribute
to resolving human rights problems affecting both countries
and regions.
Notes
iGeneral guidelines regarding the form and contents
of periodic reports to be submitted by States parties under
article 44, paragraph 1 (b), of the Convention (CRC/C/58),
para. 18.
iiPrinciples relating to the status of national
institutions for the promotion and protection of human rights
(The "Paris Principles"), General Assembly resolution
48/134 of 20 December 1993, annex.
iiiCommission on Human Rights resolution 1992/54
of 3 March 1992, annex.
General Comment NO. 3 (2003) HIV/AIDS and the rights
of the child
I. Introduction
1. The HIV/AIDS epidemic has drastically changed the world
in which children live. Millions of children have been infected
and have died and many more are gravely affected as HIV
spreads through their families and communities. The epidemic
impacts on the daily life of younger children, and increases
the victimization and marginalization of children, especially
those living in particularly difficult circumstances. HIV/AIDS
is not a problem of some countries but of the entire world.
To truly bring its impact on children under control will
require concerted and well-targeted efforts from all countries
at all stages of development.
2. Initially children were considered to be only marginally
affected by the epidemic. However, the international community
has discovered that, unfortunately, children are at the
heart of the problem. According to the Joint United Nations
Programme on HIV/AIDS (UNAIDS), the most recent trends are
alarming: in most parts of the world the majority of new
infections are among young people between the ages of 15
and 24, sometimes younger. Women, including young girls,
are also increasingly becoming infected. In most regions
of the world, the vast majority of infected women do not
know that they are infected and may unknowingly infect their
children. Consequently, many States have recently registered
an increase in their infant and child mortality rates. Adolescents
are also vulnerable to HIV/AIDS because their first sexual
experience may take place in an environment in which they
have no access to proper information and guidance. Children
who use drugs are at high risk.
3. Yet, all children can be rendered vulnerable by the particular
circumstances of their lives, especially (a) children who
are themselves HIV-infected; (b) children who are affected
by the epidemic because of the loss of a parental caregiver
or teacher and/or because their families or communities
are severely strained by its consequences; and (c) children
who are most prone to be infected or affected.
II. The objectives of the present General Comment
4. The objectives of the present General Comment are:
(a) To identify further and strengthen understanding
of all the human rights of children in the context of
HIV/AIDS;
(b) To promote the realization of the human rights of
children in the context of HIV/AIDS, as guaranteed under
the Convention on the Rights of the Child (hereafter "the
Convention");
(c) To identify measures and good practices to increase
the level of implementation by States of the rights related
to the prevention of HIV/AIDS and the support, care and
protection of children infected with or affected by this
pandemic;
(d) To contribute to the formulation and promotion of
child-oriented plans of action, strategies, laws, polices
and programmes to combat the spread and mitigate the impact
of HIV/AIDS at the national and international levels.
III. The Convention's perspectives on HIV/AIDS: the holistic
child rights based approach
5. The issue of children and HIV/AIDS is perceived as mainly
a medical or health problem, although in reality it involves
a much wider range of issues. In this regard, the right
to health (article 24 of the Convention) is, however, central.
But HIV/AIDS impacts so heavily on the lives of all children
that it affects all their rights - civil, political, economic,
social and cultural. The rights embodied in the general
principles of the Convention - the right to non discrimination
(art. 2), the right of the child to have his/her interest
as a primary consideration (art. 3), the right to life,
survival and development (art. 6) and the right to have
his/her views respected (art. 12) - should therefore be
the guiding themes in the consideration of HIV/AIDS at all
levels of prevention, treatment, care and support.
6. Adequate measures to address HIV/AIDS can be undertaken
only if the rights of children and adolescents are fully
respected. The most relevant rights in this regard, in addition
to those enumerated in paragraph 5 above, are the following:
the right to access information and material aimed at the
promotion of their social, spiritual and moral well being
and physical and mental health (art. 17); the right to preventive
health care, sex education and family planning education
and services (art. 24 (f)); the right to an appropriate
standard of living (art. 27); the right to privacy (art.
16); the right not to be separated from parents (art. 9);
the right to be protected from violence (art. 19); the right
to special protection and assistance by the State (art.
20); the rights of children with disabilities (art. 23);
the right to health (art. 24); the right to social security,
including social insurance (art. 26); the right to education
and leisure (arts. 28 and 31); the right to be protected
from economic and sexual exploitation and abuse, and from
illicit use of narcotic drugs (arts. 32, 33, 34 and 36);
the right to be protected from abduction, sale and trafficking
as well as torture or other cruel, inhuman or degrading
treatment or punishment (arts. 35 and 37); and the right
to physical and psychological recovery and social reintegration
(art. 39). Children are confronted with serious challenges
to the above-mentioned rights as a result of the epidemic.
The Convention, and in particular the four general principles
with their comprehensive approach, provide a powerful framework
for efforts to reduce the negative impact of the pandemic
on the lives of children. The holistic rights-based approach
required to implement the Convention is the optimal tool
for addressing the broader range of issues that relate to
prevention, treatment and care efforts.
A. The right to non-discrimination (art. 2)
7. Discrimination is responsible for heightening the vulnerability
of children to HIV and AIDS, as well as seriously impacting
the lives of children who are affected by HIV/AIDS, or are
themselves HIV infected. Girls and boys of parents living
with HIV/AIDS are often victims of stigma and discrimination
as they too are often assumed to be infected. As a result
of discrimination, children are denied access to information,
education (see the Committee's General Comment No. 1 on
the aims of education), health or social care services or
community life. At its extreme, discrimination against HIV
infected children has resulted in their abandonment by their
family, community and/or society. Discrimination also fuels
the epidemic by making children in particular those belonging
to certain groups like children living in remote or rural
areas where services are less accessible, more vulnerable
to infection. These children are thus doubly victimized.
8. Of particular concern is gender based discrimination
combined with taboos or negative or judgemental attitudes
to sexual activity of girls, often limiting their access
to preventive measures and other services. Of concern also
is discrimination based on sexual orientation. In the design
of HIV/AIDS-related strategies, and in keeping with their
obligations under the Convention, States parties must give
careful consideration to prescribed gender norms within
their societies with a view to eliminating gender-based
discrimination as these norms impact on the vulnerability
of both girls and boys to HIV/AIDS. States parties should,
in particular, recognize that discrimination in the context
of HIV/AIDS often impacts girls more severely than boys.
9. All the above-mentioned discriminatory practices are
violations of children's rights under the Convention. Article
2 of the Convention obliges States parties to ensure all
the rights set forth in the Convention without discrimination
of any kind, "irrespective of the child's or his or
her parent's or legal guardian's race, colour, sex, language,
religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other status".
The Committee interprets "other status" under
article 2 of the Convention to include HIV/AIDS status of
the child or his/her parent(s). Laws, policies, strategies
and practices should address all forms of discrimination
that contribute to increasing the impact of the epidemic.
Strategies should also promote education and training programmes
explicitly designed to change attitudes of discrimination
and stigmatization associated with HIV/AIDS.
B. Best interests of the child (art. 3)
10. Policies and programmes for the prevention, care and
treatment of HIV/AIDS have generally been designed for adults
with scarce attention to the principle of the best interests
of the child as a primary consideration. Article 3, paragraph
1, of the Convention states "In all actions concerning
children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall
be a primary consideration". The obligations attached
to this right are fundamental to guiding the action of States
in relation to HIV/AIDS. The child should be placed at the
centre of the response to the pandemic, and strategies should
be adapted to children's rights and needs.
C. The right to life, survival and development (art. 6)
11. Children have the right not to have their lives arbitrarily
taken, as well as to benefit from economic and social policies
that will allow them to survive into adulthood and develop
in the broadest sense of the word. State obligation to realize
the right to life, survival and development also highlights
the need to give careful attention to sexuality as well
as to the behaviours and lifestyles of children, even if
they do not conform with what society determines to be acceptable
under prevailing cultural norms for a particular age group.
In this regard, the female child is often subject to harmful
traditional practices, such as early and/or forced marriage,
which violate her rights and make her more vulnerable to
HIV infection, including because such practices often interrupt
access to education and information. Effective prevention
programmes are only those that acknowledge the realities
of the lives of adolescents, while addressing sexuality
by ensuring equal access to appropriate information, life
skills, and to preventive measures.
D. The right to express views and have them taken into account
(art. 12)
12. Children are rights holders and have a right to participate,
in accordance with their evolving capacities, in raising
awareness by speaking out about the impact of HIV/AIDS on
their lives and in the development of HIV/AIDS policies
and programmes. Interventions have been found to benefit
children most when they are actively involved in assessing
needs, devising solutions, shaping strategies and carrying
them out rather than being seen as objects for whom decisions
are made. In this regard, the participation of children
as peer educators, both within and outside schools, should
be actively promoted. States, international agencies and
non governmental organizations must provide children with
a supportive and enabling environment to carry out their
own initiatives, and to fully participate at both community
and national levels in HIV policy and programme conceptualization,
design, implementation, coordination, monitoring and review.
A variety of approaches are likely to be necessary to ensure
the participation of children from all sectors of society,
including mechanisms which encourage children, consistent
with their evolving capacities, to express their views,
have them heard, and given due weight in accordance with
their age and maturity (art. 12, para. 1). Where appropriate,
the involvement of children living with HIV/AIDS in raising
awareness, by sharing their experiences with their peers
and others, is critical both to effective prevention and
to reducing stigmatization and discrimination. States parties
must ensure that children who participate in these awareness-raising
efforts do so voluntarily, after being counselled, and that
they receive both the social support and legal protection
to allow them to lead normal lives during and after their
involvement.
E. Obstacles
13. Experience has shown that many obstacles hinder effective
prevention, delivery of care services and support for community
initiatives on HIV/AIDS. These are mainly cultural, structural
and financial. Denying that a problem exists, cultural practices
and attitudes, including taboos and stigmatization, poverty
and patronizing attitudes towards children are just some
of the obstacles that may block the political and individual
commitment needed for effective programmes.
14. With regard to financial, technical and human resources,
the Committee is aware that such resources may not be immediately
available. However, concerning this obstacle, the Committee
wishes to remind States parties of their obligations under
article 4. It further notes that resource constraints should
not be used by States parties to justify their failure to
take any or enough of the technical or financial measures
required. Finally, the Committee wishes to emphasize in
this regard the essential role of international cooperation.
IV. Prevention, Care, Treatment and Support
15. The Committee wishes to stress that prevention, care,
treatment and support are mutually reinforcing elements
and provide a continuum within an effective response to
HIV/AIDS.
A. Information on HIV prevention and awareness-raising
16. Consistent with the obligations of States parties in
relation to the rights to health and information (arts.
24, 13 and 17), children should have the right to access
adequate information related to HIV/AIDS prevention and
care, through formal channels (e.g. through educational
opportunities and child-targeted media) as well as informal
channels (e.g. those targeting street children, institutionalized
children or children living in difficult circumstances).
States parties are reminded that children require relevant,
appropriate and timely information which recognizes the
differences in levels of understanding among them, is tailored
appropriately to age level and capacity and enables them
to deal positively and responsibly with their sexuality
in order to protect themselves from HIV infection. The Committee
wishes to emphasize that effective HIV/AIDS prevention requires
States to refrain from censoring, withholding or intentionally
misrepresenting health-related information, including sexual
education and information, and that, consistent with their
obligations to ensure the right to life, survival and development
of the child (art. 6), States parties must ensure that children
have the ability to acquire the knowledge and skills to
protect themselves and others as they begin to express their
sexuality.
17. Dialogue with community, family and peer counsellors,
and the provision of "life skills" education within
schools, including skills in communicating on sexuality
and healthy living, have been found to be useful approaches
to delivering HIV prevention messages to both girls and
boys, but different approaches may be necessary to reach
different groups of children. States parties must make efforts
to address gender differences as they may impact on the
access children have to prevention messages, and ensure
that children are reached with appropriate prevention messages
even if they face constraints due to language, religion,
disability or other factors of discrimination. Particular
attention must be paid to raising awareness among hard to
reach populations. In this respect, the role of the mass
media and/or oral tradition in ensuring that children have
access to information and material, as recognized in article
17 of the Convention, is crucial both to providing appropriate
information and to reducing stigmatization and discrimination.
States parties should support the regular monitoring and
evaluation of HIV/AIDS awareness campaigns to ascertain
their effectiveness in providing information, reducing ignorance,
stigmatization and discrimination, as well as addressing
fear and misperceptions concerning HIV and its transmission
among children, including adolescents.
B. The role of education
18. Education plays a critical role in providing children
with relevant and appropriate information on HIV/AIDS, which
can contribute to increased awareness and better understanding
of this pandemic and prevent negative attitudes towards
victims of HIV/AIDS (see also the Committee's General Comment
No. 1 on the aims of education). Furthermore, education
can and should empower children to protect themselves from
the risk of HIV infection. In this regard, the Committee
wishes to remind States parties of their obligation to ensure
that primary education is available to all children, whether
infected, orphaned or otherwise affected by HIV/AIDS. In
many communities where HIV has spread widely, children from
affected families, in particular girls, are facing serious
difficulties staying in school and the number of teachers
and other school employees lost to AIDS is limiting and
threatening to destroy the ability of children to access
education. States parties must make adequate provision to
ensure that children affected by HIV/AIDS can stay in school
and ensure the qualified replacement of sick teachers so
that children's regular attendance at schools is not affected,
and that the right to education (art. 28) of all children
living within these communities is fully protected.
19. States parties must make every effort to ensure that
schools are safe places for children, which offer them security
and do not contribute to their vulnerability to HIV infection.
In accordance with article 34 of the Convention, States
parties are under obligation to take all appropriate measures
to prevent, inter alia, the inducement or coercion of a
child to engage in any unlawful sexual activity.
C. Child and adolescent sensitive health services
20. The Committee is concerned that health services are
generally still insufficiently responsive to the needs of
children under 18 years of age, in particular adolescents.
As the Committee has noted on numerous occasions, children
are more likely to use services that are friendly and supportive,
provide a wide range of services and information, are geared
to their needs, give them the opportunity to participate
in decisions affecting their health, are accessible, affordable,
confidential and non-judgemental, do not require parental
consent and are not discriminatory. In the context of HIV/AIDS
and taking into account the evolving capacities of the child,
States parties are encouraged to ensure that health services
employ trained personnel who fully respect the rights of
children to privacy (art. 16) and non-discrimination in
offering them access to HIV related information, voluntary
counselling and testing, knowledge of their HIV status,
confidential sexual and reproductive health services, and
free or low cost contraceptive, methods and services, as
well as HIV-related care and treatment if and when needed,
including for the prevention and treatment of health problems
related to HIV/AIDS, e.g. tuberculosis and opportunistic
infections.
21. In some countries, even when child- and adolescent-friendly
HIV-related services are available, they are not sufficiently
accessible to children with disabilities, indigenous children,
children belonging to minorities, children living in rural
areas, children living in extreme poverty or children who
are otherwise marginalized within the society. In others,
where the health system's overall capacity is already strained,
children with HIV have been routinely denied access to basic
health care. States parties must ensure that services are
provided to the maximum extent possible to all children
living within their borders, without discrimination, and
that they sufficiently take into account differences in
gender, age and the social, economic, cultural and political
context in which children live.
D. HIV counselling and testing
22. The accessibility of voluntary, confidential HIV counselling
and testing services, with due attention to the evolving
capacities of the child, is fundamental to the rights and
health of children. Such services are critical to children's
ability to reduce the risk of contracting or transmitting
HIV, to access HIV-specific care, treatment and support,
and to better plan for their futures. Consistent with their
obligation under article 24 of the Convention to ensure
that no child is deprived of his or her right of access
to necessary health services, States parties should ensure
access to voluntary, confidential HIV counselling and testing
for all children.
23. The Committee wishes to stress that, as the duty of
States parties is first and foremost to ensure that the
rights of the child are protected, States parties must refrain
from imposing mandatory HIV/AIDS testing of children in
all circumstances and ensure protection against it. While
the evolving capacities of the child will determine whether
consent is required from him or her directly or from his
or her parent or guardian, in all cases, consistent with
the child's right to receive information under articles
13 and 17 of the Convention, States parties must ensure
that, prior to any HIV testing, whether by health-care providers
in relation to children who are accessing health services
for another medical condition or otherwise, the risks and
benefits of such testing are sufficiently conveyed so that
an informed decision can be made.
24. States parties must protect the confidentiality of HIV
test results, consistent with the obligation to protect
the right to privacy of children (art. 16), including within
health and social welfare settings, and information on the
HIV status of children may not be disclosed to third parties,
including parents, without the child's consent.
E. Mother-to-child transmission
25. Mother-to-child transmission (MTCT) is responsible
for the majority of HIV infections in infants and young
children. Infants and young children can be infected with
HIV during pregnancy, labour and delivery, and through breastfeeding.
States parties are requested to ensure implementation of
the strategies recommended by the United Nations agencies
to prevent HIV infection in infants and young children.
These include: (a) the primary prevention of HIV infection
among parents-to-be; (b) the prevention of unintended pregnancies
in HIV-infected women, (c) the prevention of HIV transmission
from HIV-infected women to their infants; and (d) the provision
of care, treatment and support to HIV-infected women, their
infants and families.
26. To prevent MTCT of HIV, States parties must take steps,
including the provision of essential drugs, e.g. anti-retroviral
drugs, appropriate antenatal, delivery and post-partum care,
and making HIV voluntary counselling and testing services
available to pregnant women and their partners. The Committee
recognizes that anti-retroviral drugs administered to a
woman during pregnancy and/or labour and, in some regimens,
to her infant, have been shown to significantly reduce the
risk of transmission from mother to child. However, in addition,
States parties should provide support for mothers and children,
including counselling on infant feeding options. States
parties are reminded that counselling of HIV-positive mothers
should include information about the risks and benefits
of different infant feeding options, and guidance on selecting
the option most likely to be suitable for their situation.
Follow-up support is also required in order for women to
be able to implement their selected option as safely as
possible.
27. Even in populations with high HIV prevalence, the majority
of infants are born to women who are not HIV-infected. For
the infants of HIV-negative women and women who do not know
their HIV status, the Committee wishes to emphasize, consistent
with articles 6 and 24 of the Convention, that breastfeeding
remains the best feeding choice. For the infants of HIV
positive mothers, available evidence indicates that breastfeeding
can add to the risk of HIV transmission by 10-20 per cent,
but that lack of breastfeeding can expose children to an
increased risk of malnutrition or infectious diseases other
than HIV. United Nations agencies have recommended that,
where replacement feeding is affordable, feasible, acceptable,
sustainable and safe, avoidance of all breastfeeding by
HIV-infected mothers is recommended; otherwise, exclusive
breastfeeding is recommended during the first months of
life and should then be discontinued as soon as it is feasible.
F. Treatment and care
28. The obligations of States parties under the Convention
extend to ensuring that children have sustained and equal
access to comprehensive treatment and care, including necessary
HIV related drugs, goods and services on a basis of non-discrimination.
It is now widely recognized that comprehensive treatment
and care includes anti-retroviral and other drugs, diagnostics
and related technologies for the care of HIV/AIDS, related
opportunistic infections and other conditions, good nutrition,
and social, spiritual and psychological support, as well
as family, community and home-based care. In this regard,
States parties should negotiate with the pharmaceutical
industry in order to make the necessary medicines locally
available at the lowest costs possible. Furthermore, States
parties are requested to affirm, support and facilitate
the involvement of communities in the provision of comprehensive
HIV/AIDS treatment, care and support, while at the same
time complying with their own obligations under the Convention.
States parties are called upon to pay special attention
to addressing those factors within their societies that
hinder equal access to treatment, care and support for all
children.
G. Involvement of children in research
29. Consistent with article 24 of the Convention, States
parties must ensure that HIV/AIDS research programmes include
specific studies that contribute to effective prevention,
care, treatment and impact reduction for children. States
parties must, nonetheless, ensure that children do not serve
as research subjects until an intervention has already been
thoroughly tested on adults. Rights and ethical concerns
have arisen in relation to HIV/AIDS biomedical research,
HIV/ADS operations, and social, cultural and behavioural
research. Children have been subjected to unnecessary or
inappropriately designed research with little or no voice
to either refuse or consent to participation. In line with
the child's evolving capacities, consent of the child should
be sought and consent may be sought from parents or guardians
if necessary, but in all cases consent must be based on
full disclosure of the risks and benefits of research to
the child. States parties are further reminded to ensure
that the privacy rights of children, in line with their
obligations under article 16 of the Convention, are not
inadvertently violated through the research process and
that personal information about children, which is accessed
through research, is, under no circumstances, used for purposes
other than that for which consent was given. States parties
must make every effort to ensure that children and, according
to their evolving capacities, their parents and/or their
guardians participate in decisions on research priorities
and that a supportive environment is created for children
who participate in such research.
V. Vulnerability and Children Needing Special Protection
30. The vulnerability of children to HIV/AIDS resulting
from political, economic, social, cultural and other factors
determines the likelihood of their being left with insufficient
support to cope with the impact of HIV/AIDS on their families
and communities, exposed to the risk of infection, subjected
to inappropriate research, or deprived of access to treatment,
care and support if and when HIV infection sets in. Vulnerability
to HIV/AIDS is most acute for children living in refugee
and internally displaced persons camps, children in detention,
children living in institutions, as well as children living
in extreme poverty, children living in situations of armed
conflict, child soldiers, economically and sexually exploited
children, and disabled, migrant, minority, indigenous, and
street children. However, all children can be rendered vulnerable
by the particular circumstances of their lives. Even in
times of severe resource constraints, the Committee wishes
to note that the rights of vulnerable members of society
must be protected and that many measures can be pursued
with minimum resource implications. Reducing vulnerability
to HIV/AIDS requires first and foremost that children, their
families and communities be empowered to make informed choices
about decisions, practices or policies affecting them in
relation to HIV/AIDS.
A. Children affected and orphaned by HIV/AIDS
31. Special attention must be given to children orphaned
by AIDS and to children from affected families, including
child-headed households, as these impact on vulnerability
to HIV infection. For children from families affected by
HIV/AIDS, the stigmatization and social isolation they experience
may be accentuated by the neglect or violation of their
rights, in particular discrimination resulting in a decrease
or loss of access to education, health and social services.
The Committee wishes to underline the necessity of providing
legal, economic and social protection to affected children
to ensure their access to education, inheritance, shelter
and health and social services, as well as to make them
feel secure in disclosing their HIV status and that of their
family members when the children deem it appropriate. In
this respect, States parties are reminded that these measures
are critical to the realization of the rights of children
and to giving them the skills and support necessary to reduce
their vulnerability and risk of becoming infected.
32. The Committee wishes to emphasize the critical implications
of proof of identity for children affected by HIV/AIDS,
as it relates to securing recognition as a person before
the law, safeguarding the protection of rights, in particular
to inheritance, education, health and other social services,
as well as to making children less vulnerable to abuse and
exploitation, particularly if separated from their families
due to illness or death. In this respect, birth registration
is critical to ensuring the rights of the child and is also
necessary to minimize the impact of HIV/AIDS on the lives
of affected children. States parties are, therefore, reminded
of their obligation under article 7 of the Convention to
ensure that systems are in place for the registration of
every child at or immediately after birth.
33. The trauma HIV/AIDS brings to the lives of orphans often
begins with the illness and death of one of their parents,
and is frequently compounded by the effects of stigmatization
and discrimination. In this respect, States parties are
particularly reminded to ensure that both law and practice
support the inheritance and property rights of orphans,
with particular attention to the underlying gender-based
discrimination which may interfere with the fulfilment of
these rights. Consistent with their obligations under article
27 of the Convention, States parties must also support and
strengthen the capacity of families and communities of children
orphaned by AIDS to provide them with a standard of living
adequate for their physical, mental, spiritual, moral, economic
and social development, including access to psychosocial
care, as needed.
34. Orphans are best protected and cared for when efforts
are made to enable siblings to remain together, and in the
care of relatives or family members. The extended family,
with the support of the surrounding community, may be the
least traumatic and therefore the best way to care for orphans
when there are no other feasible alternatives. Assistance
must be provided so that, to the maximum extent possible,
children can remain within existing family structures. This
option may not be available due to the impact HIV/AIDS has
on the extended family. In that case, States parties should
provide, as far as possible, for family-type alternative
care (e.g. foster care). States parties are encouraged to
provide support, financial and otherwise, when necessary,
to child-headed households. States parties must ensure that
their strategies recognize that communities are at the front
line of the response to HIV/AIDS and that these strategies
are designed to assist communities in determining how best
to provide support to the orphans living there.
35. Although institutionalized care may have detrimental
effects on child development, States parties may, nonetheless,
determine that it has an interim role to play in caring
for children orphaned by HIV/AIDS when family-based care
within their own communities is not a possibility. It is
the opinion of the Committee that any form of institutionalized
care for children should only serve as a measure of last
resort, and that measures must be fully in place to protect
the rights of the child and guard against all forms of abuse
and exploitation. In keeping with the right of children
to special protection and assistance when within these environments,
and consistent with articles 3, 20 and 25 of the Convention,
strict measures are needed to ensure that such institutions
meet specific standards of care and comply with legal protection
safeguards. States parties are reminded that limits must
be placed on the length of time children spend in these
institutions, and programmes must be developed to support
any children who stay in these institutions, whether infected
or affected by HIV/AIDS, to successfully reintegrate them
into their communities.
B. Victims of sexual and economic exploitation
36. Girls and boys who are deprived of the means of survival
and development, particularly children orphaned by AIDS,
may be subjected to sexual and economic exploitation in
a variety of ways, including the exchange of sexual services
or hazardous work for money to survive, support their sick
or dying parents and younger siblings, or to pay for school
fees. Children who are infected or directly affected by
HIV/AIDS may find themselves at a double disadvantage -
experiencing discrimination on the basis of both their social
and economic marginalization and their, or their parents',
HIV status. Consistent with the right of children under
articles 32, 34, 35 and 36 of the Convention, and in order
to reduce children's vulnerability to HIV/AIDS, States parties
are under obligation to protect children from all forms
of economic and sexual exploitation, including ensuring
they do not fall prey to prostitution networks, and that
they are protected from performing any work likely to be
prejudicial to, or to interfere with, their education, health,
or physical, mental, spiritual, moral or social development.
States parties must take bold action to protect children
from sexual and economic exploitation, trafficking and sale
and, consistent with the rights under article 39, create
opportunities for those who have been subjected to such
treatment to benefit from the support and caring services
of the State and non governmental entities engaged in these
issues.
C. Victims of violence and abuse
37. Children may be exposed to various forms of violence
and abuse which may increase the risk of their becoming
HIV-infected, and may also be subjected to violence as a
result of their being infected or affected by HIV/AIDS.
Violence, including rape and other forms of sexual abuse,
can occur in the family or foster setting or may be perpetrated
by those with specific responsibilities towards children,
including teachers and employees of institutions working
with children, such as prisons and institutions concerned
with mental health and other disabilities. In keeping with
the rights of the child set forth in article 19 of the Convention,
States parties have the obligation to protect children from
all forms of violence and abuse, whether at home, in school
or other institutions, or in the community.
38. Programmes must be specifically adapted to the environment
in which children live, to their ability to recognize and
report abuses and to their individual capacity and autonomy.
The Committee considers that the relationship between HIV/AIDS
and the violence or abuse suffered by children in the context
of war and armed conflict requires specific attention. Measures
to prevent violence and abuse in these situations are critical,
and States parties must ensure the incorporation of HIV/AIDS
and child rights issues in addressing and supporting children
- girls and boys - who were used by military or other uniformed
personnel to provide domestic help or sexual services, or
who are internally displaced or living in refugee camps.
In keeping with States parties' obligations, including under
articles 38 and 39 of the Convention, active information
campaigns, combined with the counselling of children and
mechanisms for the prevention and early detection of violence
and abuse, must be put in place within conflict- and disaster-affected
regions, and must form part of national and community responses
to HIV/AIDS.
Substance abuse
39. The use of substances, including alcohol and drugs,
may reduce the ability of children to exert control over
their sexual conduct and, as a result, may increase their
vulnerability to HIV infection. Injecting practices using
unsterilized instruments further increase the risk of HIV
transmission. The Committee notes that greater understanding
of substance use behaviours among children is needed, including
the impact that neglect and violation of the rights of the
child has on these behaviours. In most countries, children
have not benefited from pragmatic HIV prevention programmes
related to substance use, which even when they do exist
have largely targeted adults. The Committee wishes to emphasize
that policies and programmes aimed at reducing substance
use and HIV transmission must recognize the particular sensitivities
and lifestyles of children, including adolescents, in the
context of HIV/AIDS prevention. Consistent with the rights
of children under articles 33 and 24 of the Convention,
States parties are obligated to ensure the implementation
of programmes which aim to reduce the factors that expose
children to the use of substances, as well as those that
provide treatment and support to children who are abusing
substances.
VI. Recommendations
40. The Committee hereby reaffirms the recommendations,
which emerged at the day of general discussion on children
living in a world with HIV/AIDS (CRC/C/80), and calls upon
States parties:
(a) To adopt and implement national and local HIV/AIDS-related
policies, including effective plans of action, strategies,
and programmes that are child-centred, rights-based and
incorporate the rights of the child under the Convention,
including by taking into account the recommendations made
in the previous paragraphs of the present General Comment
and those adopted at the United Nations General Assembly
special session on children (2002);
(b) To allocate financial, technical and human resources,
to the maximum extent possible, to supporting national
and community-based action (art. 4), and, where appropriate,
within the context of international cooperation (see paragraph
41 below).
(c) To review existing laws or enact new legislation with
a view to implementing fully article 2 of the Convention,
and in particular to expressly prohibiting discrimination
based on real or perceived HIV/AIDS status so as to guarantee
equal access for of all children to all relevant services,
with particular attention to the child's right to privacy
and confidentiality and to other recommendations made
by the Committee in the previous paragraphs relevant to
legislation;
(d) To include HIV/AIDS plans of action, strategies, policies
and programmes in the work of national mechanisms responsible
for monitoring and coordinating children's rights and
to consider the establishment of a review procedure, which
responds specifically to complaints of neglect or violation
of the rights of the child in relation to HIV/AIDS, whether
this entails the creation of a new legislative or administrative
body or is entrusted to an existing national institution;
(e) To reassess their HIV-related data collection and
evaluation to ensure that they adequately cover children
as defined under the Convention, are disaggregated by
age and gender ideally in five-year age groups, and include,
as far as possible, children belonging to vulnerable groups
and those in need of special protection;
(f) To include, in their reporting process under article
44 of the Convention, information on national HIV/AIDS
policies and programmes and, to the extent possible, budgeting
and resource allocations at the national, regional and
local levels, as well as within these breakdowns the proportions
allocated to prevention, care, research and impact reduction.
Specific attention must be given to the extent to which
these programmes and policies explicitly recognize children
(in the light of their evolving capacities) and their
rights, and the extent to which HIV-related rights of
children are dealt with in laws, policies and practices,
with specific attention to discrimination against children
on the basis of their HIV status, as well as because they
are orphans or the children of parents living with HIV/AIDS.
The Committee requests States parties to provide a detailed
indication in their reports of what they consider to be
the most important priorities within their jurisdiction
in relation to children and HIV/AIDS, and to outline the
programme of activities they intend to pursue over the
coming five years in order to address the problems identified.
This would allow activities to be progressively assessed
over time.
41. In order to promote international cooperation, the
Committee calls upon UNICEF, World Health Organization,
United Nations Population Fund, UNAIDS and other relevant
international bodies, organizations and agencies to contribute
systematically, at the national level, to efforts to ensure
the rights of children in the context of HIV/AIDS, and also
to continue to work with the Committee to improve the rights
of the child in the context of HIV/AIDS. Further, the Committee
urges States providing development cooperation to ensure
that HIV/AIDS strategies are so designed as to take fully
into account the rights of the child.
42. Non-governmental organizations, as well as community-based
groups and other civil society actors, such as youth groups,
faith-based organizations, women's organizations and traditional
leaders, including religious and cultural leaders, all have
a vital role to play in the response to the HIV/AIDS pandemic.
States parties are called upon to ensure an enabling environment
for participation by civil society groups, which includes
facilitating collaboration and coordination among the various
players, and that these groups are given the support needed
to enable them to operate effectively without impediment
(in this regard, States parties are specifically encouraged
to support the full involvement of people living with HIV/AIDS,
with particular attention to the inclusion of children,
in the provision of HIV/AIDS prevention, care, treatment
and support services).
COMMITTEE ON THE RIGHTS OF THE CHILD
Thirty-third session
19 May-6 June 2003
General comment No. 4 (2003) Adolescent health and development
in the context of the Convention on the Rights of the Child
Introduction
30. The Convention on the Rights of the Child defines a
child as "every human being below the age of 18 years
unless, under the law applicable, majority is attained earlier"
(art. 1). Consequently, adolescents up to 18 years old are
holders of all the rights enshrined in the Convention; they
are entitled to special protection measures and, according
to their evolving capacities, they can progressively exercise
their rights (art. 5).
31. Adolescence is a period characterized by rapid physical,
cognitive and social changes, including sexual and reproductive
maturation; the gradual building up of the capacity to assume
adult behaviours and roles involving new responsibilities
requiring new knowledge and skills. While adolescents are
in general a healthy population group, adolescence also
poses new challenges to health and development owing to
their relative vulnerability and pressure from society,
including peers, to adopt risky health behaviour. These
challenges include developing an individual identity and
dealing with one's sexuality. The dynamic transition period
to adulthood is also generally a period of positive changes,
prompted by the significant capacity of adolescents to learn
rapidly, to experience new and diverse situations, to develop
and use critical thinking, to familiarize themselves with
freedom, to be creative and to socialize.
32. The Committee on the Rights of the Child notes with
concern that in implementing their obligations under the
Convention, States parties have not given sufficient attention
to the specific concerns of adolescents as rights holders
and to promoting their health and development. This has
motivated the Committee to adopt the present general comment
in order to raise awareness and provide States parties with
guidance and support in their efforts to guarantee the respect
for, protection and fulfilment of the rights of adolescents,
including through the formulation of specific strategies
and policies.
33. The Committee understands the concepts of "health
and development" more broadly than being strictly limited
to the provisions defined in articles 6 (right to life,
survival and development) and 24 (right to health) of the
Convention. One of the aims of this general comment is precisely
to identify the main human rights that need to be promoted
and protected in order to ensure that adolescents do enjoy
the highest attainable standard of health, develop in a
well-balanced manner, and are adequately prepared to enter
adulthood and assume a constructive role in their communities
and in society at large. This general comment should be
read in conjunction with the Convention and its two Optional
Protocols on the sale of children, child prostitution and
child pornography, and on the involvement of children in
armed conflict, as well as other relevant international
human rights norms and standards.
I. Fundamental principles and other obligations of states
parties
34. As recognized by the World Conference on Human Rights
(1993) and repeatedly stated by the Committee, children's
rights too are indivisible and interrelated. In addition
to articles 6 and 24, other provisions and principles of
the Convention are crucial in guaranteeing that adolescents
fully enjoy their right to health and development.
The right to non-discrimination
35. States parties have the obligation to ensure that
all human beings below 18 enjoy all the rights set forth
in the Convention without discrimination (art. 2), including
with regard to "race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin,
property, disability, birth or other status". These
grounds also cover adolescents' sexual orientation and health
status (including HIV/AIDS and mental health). Adolescents
who are subject to discrimination are more vulnerable to
abuse, other types of violence and exploitation, and their
health and development are put at greater risk. They are
therefore entitled to special attention and protection from
all segments of society.
Appropriate guidance in the exercise of rights
36. The Convention acknowledges the responsibilities,
rights and duties of parents (or other persons legally responsible
for the child) "to provide, in a manner consistent
with the evolving capacities of the child, appropriate direction
and guidance in the exercise by the child of the rights
recognized in the Convention" (art. 5). The Committee
believes that parents or other persons legally responsible
for the child need to fulfil with care their right and responsibility
to provide direction and guidance to their adolescent children
in the exercise by the latter of their rights. They have
an obligation to take into account the adolescents' views,
in accordance with their age and maturity, and to provide
a safe and supportive environment in which the adolescent
can develop. Adolescents need to be recognized by the members
of their family environment as active rights holders who
have the capacity to become full and responsible citizens,
given the proper guidance and direction.
Respect for the views of the child
The right to express views freely and have them duly taken
into account (art. 12) is also fundamental in realizing
adolescents' right to health and development. States parties
need to ensure that adolescents are given a genuine chance
to express their views freely on all matters affecting them,
especially within the family, in school, and in their communities.
In order for adolescents to be able safely and properly
to exercise this right, public authorities, parents and
other adults working with or for children need to create
an environment based on trust, information sharing, the
capacity to listen and sound guidance that is conducive
for adolescents' participating equally including in decision-making
processes.
Legal and judicial measures and processes
37. Under article 4 of the Convention, "States parties
shall undertake all appropriate legislative, administrative
and other measures for the implementation of the rights
recognized" therein. In the context of the rights of
adolescents to health and development, States parties need
to ensure that specific legal provisions are guaranteed
under domestic law, including with regard to setting a minimum
age for sexual consent, marriage and the possibility of
medical treatment without parental consent. These minimum
ages should be the same for boys and girls (article 2 of
the Convention) and closely reflect the recognition of the
status of human beings under 18 years of age as rights holders,
in accordance with their evolving capacity, age and maturity
(arts. 5 and 12 to 17). Further, adolescents need to have
easy access to individual complaint systems as well as judicial
and appropriate non-judicial redress mechanisms that guarantee
fair and due process, with special attention to the right
to privacy (art. 16).
Civil rights and freedoms
38. The Convention defines the civil rights and freedoms
of children and adolescents in its articles 13 to 17. These
are fundamental in guaranteeing the right to health and
development of adolescents. Article 17 states that the child
has the right to "access information and material from
a diversity of national and international sources, especially
those aimed at the promotion of his or her social, spiritual
and moral well-being and physical and mental health".
The right of adolescents to access appropriate information
is crucial if States parties are to promote cost effective
measures, including through laws, policies and programmes,
with regard to numerous health related situations, including
those covered in articles 24 and 33 such as family planning,
prevention of accidents, protection from harmful traditional
practices, including early marriages and female genital
mutilation, and the abuse of alcohol, tobacco and other
harmful substances.
39. In order to promote the health and development of adolescents,
States parties are also encouraged to respect strictly their
right to privacy and confidentiality, including with respect
to advice and counselling on health matters (art. 16). Health-care
providers have an obligation to keep confidential medical
information concerning adolescents, bearing in mind the
basic principles of the Convention. Such information may
only be disclosed with the consent of the adolescent, or
in the same situations applying to the violation of an adult's
confidentiality. Adolescents deemed mature enough to receive
counselling without the presence of a parent or other person
are entitled to privacy and may request confidential services,
including treatment.
Protection from all forms of abuse, neglect, violence and
exploitation
40. States parties must take effective measures to ensure
that adolescents are protected from all forms of violence,
abuse, neglect and exploitation (arts. 19, 32-36 and 38),
paying increased attention to the specific forms of abuse,
neglect, violence and exploitation that affects this age
group. In particular, they should adopt special measures
to ensure the physical, sexual and mental integrity of adolescents
with disabilities, who are particularly vulnerable to abuse
and neglect. States parties should also ensure that adolescents
affected by poverty who are socially marginalized are not
criminalized. In this regard, financial and human resources
need to be allocated to promote research that would inform
the adoption of effective local and national laws, policies
and programmes. Policies and strategies should be reviewed
regularly and revised accordingly. In taking these measures,
States parties have to take into account the evolving capacities
of adolescents and involve them in an appropriate manner
in developing measures, including programmes, designed to
protect them. In this context, the Committee emphasizes
the positive impact that peer education can have, and the
positive influence of proper role models, especially those
in the worlds of arts, entertainment and sports.
Data collection
41. Systematic data collection is necessary for States
parties to be able to monitor the health and development
of adolescents. States parties should adopt data-collection
mechanisms that allow desegregation by sex, age, origin
and socio-economic status so that the situation of different
groups can be followed. Data should also be collected to
study the situation of specific groups such as ethnic and/or
indigenous minorities, migrant or refugee adolescents, adolescents
with disabilities, working adolescents, etc. Where appropriate,
adolescents should participate in the analysis to ensure
that the information is understood and utilized in an adolescent
sensitive way.
II. Creating a safe and supportive environment
42. The health and development of adolescents are strongly
determined by the environments in which they live. Creating
a safe and supportive environment entails addressing attitudes
and actions of both the immediate environment of the adolescent
- family, peers, schools and services - as well as the wider
environment created by, inter alia, community and religious
leaders, the media, national and local policies and legislation.
The promotion and enforcement of the provisions and principles
of the Convention, especially articles 2-6, 12-17, 24, 28,
29 and 31, are key to guaranteeing adolescents' right to
health and development. States parties should take measures
to raise awareness and stimulate and/or regulate action
through the formulation of policy or the adoption of legislation
and the implementation of programmes specifically for adolescents.
43. The Committee stresses the importance of the family
environment, including the members of the extended family
and community or other persons legally responsible for the
child or adolescent (arts. 5 and 18). While most adolescents
grow up in well functioning family environments, for some
the family does not constitute a safe and supportive milieu.
44. The Committee calls upon States parties to develop and
implement, in a manner consistent with adolescents' evolving
capacities, legislation, policies and programmes to promote
the health and development of adolescents by (a) providing
parents (or legal guardians) with appropriate assistance
through the development of institutions, facilities and
services that adequately support the well-being of adolescents,
including, when needed, the provision of material assistance
and support with regard to nutrition, clothing and housing
(art. 27 (3)); (b) providing adequate information and parental
support to facilitate the development of a relationship
of trust and confidence in which issues regarding, for example,
sexuality and sexual behaviour and risky lifestyles can
be openly discussed and acceptable solutions found that
respect the adolescent's rights (art. 27 (3)); (c) providing
adolescent mothers and fathers with support and guidance
for both their own and their children's well-being (art.
24 (f), 27 (2-3)); (d) giving, while respecting the values
and norms of ethnic and other minorities, special attention,
guidance and support to adolescents and parents (or legal
guardians), whose traditions and norms may differ from those
in the society where they live; and (e) ensuring that interventions
in the family to protect the adolescent and, when necessary,
separate her/him from the family, e.g. in case of abuse
or neglect, are in accordance with applicable laws and procedures.
Such laws and procedures should be reviewed to ensure that
they conform to the principles of the Convention.
45. The school plays an important role in the life of many
adolescents, as the venue for learning, development and
socialization. Article 29 (1) states that education must
be directed to "the development of the child's personality,
talents and mental and physical abilities to their fullest
potential". In addition, general comment No. 1 on the
aims of education states that "Education must also
be aimed at ensuring that … no child leaves school
without being equipped to face the challenges that he or
she can expect to be confronted with in life. Basic skills
should include … the ability to make well-balanced
decisions; to resolve conflicts in a non violent manner;
and to develop a healthy lifestyle [and] good social relationships
…". Considering the importance of appropriate
education for the current and future health and development
of adolescents, as well as for their children, the Committee
urges States parties, in line with articles 28 and 29 of
the Convention to (a) ensure that quality primary education
is compulsory and available, accessible and free to all
and that secondary and higher education are available and
accessible to all adolescents; (b) provide well-functioning
school and recreational facilities which do not pose health
risks to students, including water and sanitation and safe
journeys to school; (c) take the necessary actions to prevent
and prohibit all forms of violence and abuse, including
sexual abuse, corporal punishment and other inhuman, degrading
or humiliating treatment or punishment in school, by school
personnel as well as among students; (d) initiate and support
measures, attitudes and activities that promote healthy
behaviour by including relevant topics in school curricula.
46. During adolescence, an increasing number of young people
are leaving school to start working to help support their
families or for wages in the formal or informal sector.
Participation in work activities in accordance with international
standards, as long as it does not jeopardize the enjoyment
of any of the other rights of adolescents, including health
and education, may be beneficial for the development of
the adolescent. The Committee urges States parties to take
all necessary measures to abolish all forms of child labour,
starting with the worst forms, to continuously review national
regulations on minimum ages for employment with a view to
making them compatible with international standards, and
to regulate the working environment and conditions for adolescents
who are working (in accordance with article 32 of the Convention,
as well as ILO Conventions Nos. 138 and 182), so as to ensure
that they are fully protected and have access to legal redress
mechanisms.
47. The Committee also stresses that in accordance with
article 23 (3) of the Convention, the special rights of
adolescents with disabilities should be taken into account
and assistance provided to ensure that the disabled child/adolescent
has effective access to and receives good quality education.
States should recognize the principle of equal primary,
secondary and tertiary educational opportunities for disabled
children/adolescents, where possible in regular schools.
48. The Committee is concerned that early marriage and pregnancy
are significant factors in health problems related to sexual
and reproductive health, including HIV/AIDS. Both the legal
minimum age and actual age of marriage, particularly for
girls, are still very low in several States parties. There
are also non-health-related concerns: children who marry,
especially girls, are often obliged to leave the education
system and are marginalized from social activities. Further,
in some States parties married children are legally considered
adults, even if they are under 18, depriving them of all
the special protection measures they are entitled under
the Convention. The Committee strongly recommends that States
parties review and, where necessary, reform their legislation
and practice to increase the minimum age for marriage with
and without parental consent to 18 years, for both girls
and boys. The Committee on the Elimination of Discrimination
against Women has made a similar recommendation (general
comment No. 21 of 1994).
49. In most countries accidental injuries or injuries due
to violence are a leading cause of death or permanent disability
among adolescents. In that respect, the Committee is concerned
about the injuries and death resulting from road traffic
accidents, which affect adolescents disproportionately.
States parties should adopt and enforce legislation and
programmes to improve road safety, including driving education
for and examination of adolescents and the adoption or strengthening
of legislation known to be highly effective such as the
obligations to have a valid driver's licence, wear seat
belts and crash helmets, and the designation of pedestrian
areas.
50. The Committee is also very concerned about the high
rate of suicide among this age group. Mental disorders and
psychosocial illness are relatively common among adolescents.
In many countries symptoms such as depression, eating disorders
and self destructive behaviours, sometimes leading to self-inflicted
injuries and suicide, are increasing. They may be related
to, inter alia, violence, ill-treatment, abuse and neglect,
including sexual abuse, unrealistically high expectations,
and/or bullying or hazing in and outside school. States
parties should provide these adolescents with all the necessary
services.
51. Violence results from a complex interplay of individual,
family, community and societal factors. Vulnerable adolescents
such as those who are homeless or who are living in institutions,
who belong to gangs or who have been recruited as child
soldiers are especially exposed to both institutional and
interpersonal violence. Under article 19 of the Convention,
States parties must take all appropriate measures to prevent
and eliminate: (a) institutional violence against adolescents,
including through legislation and administrative measures
in relation to public and private institutions for adolescents
(schools, institutions for disabled adolescents, juvenile
reformatories, etc.), and training and monitoring of personnel
in charge of institutionalized children or who otherwise
have contact with children through their work, including
the police; and (b) interpersonal violence among adolescents,
including by supporting adequate parenting and opportunities
for social and educational development in early childhood,
fostering non violent cultural norms and values (as foreseen
in article 29 of the Convention), strictly controlling firearms
and restricting access to alcohol and drugs.
52. In light of articles 3, 6, 12, 19 and 24 (3) of the
Convention, States parties should take all effective measures
to eliminate all acts and activities which threaten the
right to life of adolescents, including honour killings.
The Committee strongly urges States parties to develop and
implement awareness-raising campaigns, education programmes
and legislation aimed at changing prevailing attitudes,
and address gender roles and stereotypes that contribute
to harmful traditional practices. Further, States parties
should facilitate the establishment of multidisciplinary
information and advice centres regarding the harmful aspects
of some traditional practices, including early marriage
and female genital mutilation.
53. The Committee is concerned about the influence exerted
on adolescent health behaviours by the marketing of unhealthy
products and lifestyles. In line with article 17 of the
Convention, States parties are urged to protect adolescents
from information that is harmful to their health and development,
while underscoring their right to information and material
from diverse national and international sources. States
parties are therefore urged to regulate or prohibit information
on and marketing of substances such as alcohol and tobacco,
particularly when it targets children and adolescents .
III. Information, skills development, counselling, and health
services
54. Adolescents have the right to access adequate information
essential for their health and development and for their
ability to participate meaningfully in society. It is the
obligation of States parties to ensure that all adolescent
girls and boys, both in and out of school, are provided
with, and not denied, accurate and appropriate information
on how to protect their health and development and practise
healthy behaviours. This should include information on the
use and abuse, of tobacco, alcohol and other substances,
safe and respectful social and sexual behaviours, diet and
physical activity.
55. In order to act adequately on the information, adolescents
need to develop the skills necessary, including self-care
skills, such as how to plan and prepare nutritionally balanced
meals and proper personal hygiene habits, and skills for
dealing with particular social situations such as interpersonal
communication, decision-making, and coping with stress and
conflict. States parties should stimulate and support opportunities
to build such skills through, inter alia, formal and informal
education and training programmes, youth organizations and
the media.
56. In light of articles 3, 17 and 24 of the Convention,
States parties should provide adolescents with access to
sexual and reproductive information, including on family
planning and contraceptives, the dangers of early pregnancy,
the prevention of HIV/AIDS and the prevention and treatment
of sexually transmitted diseases (STDs). In addition, States
parties should ensure that they have access to appropriate
information, regardless of their marital status and whether
their parents or guardians consent. It is essential to find
proper means and methods of providing information that is
adequate and sensitive to the particularities and specific
rights of adolescent girls and boys. To this end, States
parties are encouraged to ensure that adolescents are actively
involved in the design and dissemination of information
through a variety of channels beyond the school, including
youth organizations, religious, community and other groups
and the media.
57. Under article 24 of the Convention, States parties are
urged to provide adequate treatment and rehabilitation for
adolescents with mental disorders, to make the community
aware of the early signs and symptoms and the seriousness
of these conditions, and to protect adolescents from undue
pressures, including psychosocial stress. States parties
are also urged to combat discrimination and stigma surrounding
mental disorders, in line with their obligations under article
2. Every adolescent with a mental disorder has the right
to be treated and cared for, as far as possible, in the
community in which he or she lives. Where hospitalization
or placement in a psychiatric institution is necessary,
this decision should be made in accordance with the principle
of the best interests of the child. In the event of hospitalization
or institutionalization, the patient should be given the
maximum possible opportunity to enjoy all his or her rights
as recognized under the Convention, including the rights
to education and to have access to recreational activities.
Where appropriate, adolescents should be separated from
adults. States parties must ensure that adolescents have
access to a personal representative other than a family
member to represent their interests, when necessary and
appropriate. In accordance with article 25 of the Convention,
States parties should undertake periodic review of the placement
of adolescents in hospitals or psychiatric institutions.
58. Adolescents, both girls and boys, are at risk of being
infected with and affected by STDs, including HIV/AIDS.
States should ensure that appropriate goods, services and
information for the prevention and treatment of STDs, including
HIV/AIDS, are available and accessible. To this end, States
parties are urged (a) to develop effective prevention programmes,
including measures aimed at changing cultural views about
adolescents' need for contraception and STD prevention and
addressing cultural and other taboos surrounding adolescent
sexuality; (b) to adopt legislation to combat practices
that either increase adolescents' risk of infection or contribute
to the marginalization of adolescents who are already infected
with STDs, including HIV; (c) to take measures to remove
all barriers hindering the access of adolescents to information,
preventive measures such as condoms, and care.
59. Adolescent girls should have access to information on
the harm that early marriage and early pregnancy can cause,
and those who become pregnant should have access to health
services that are sensitive to their rights and particular
needs. States parties should take measures to reduce maternal
morbidity and mortality in adolescent girls, particularly
caused by early pregnancy and unsafe abortion practices,
and to support adolescent parents. Young mothers, especially
where support is lacking, may be prone to depression and
anxiety, compromising their ability to care for their child.
The Committee urges States parties (a) to develop and implement
programmes that provide access to sexual and reproductive
health services, including family planning, contraception
and safe abortion services where abortion is not against
the law, adequate and comprehensive obstetric care and counselling;
(b) to foster positive and supportive attitudes towards
adolescent parenthood for their mothers and fathers; and
(c) to develop policies that will allow adolescent mothers
to continue their education.
60. Before parents give their consent, adolescents need
to have a chance to express their views freely and their
views should be given due weight, in accordance with article
12 of the Convention. However, if the adolescent is of sufficient
maturity, informed consent shall be obtained from the adolescent
her/himself, while informing the parents if that is in the
"best interest of the child" (art. 3).
61. With regard to privacy and confidentiality, and the
related issue of informed consent to treatment, States parties
should (a) enact laws or regulations to ensure that confidential
advice concerning treatment is provided to adolescents so
that they can give their informed consent. Such laws or
regulations should stipulate an age for this process, or
refer to the evolving capacity of the child; and (b) provide
training for health personnel on the rights of adolescents
to privacy and confidentiality, to be informed about planned
treatment and to give their informed consent to treatment.
IV. Vulnerability and risk
62. In ensuring respect for the right of adolescents to
health and development, both individual behaviours and environmental
factors which increase their vulnerability and risk should
be taken into consideration. Environmental factors, such
as armed conflict or social exclusion, increase the vulnerability
of adolescents to abuse, other forms of violence and exploitation,
thereby severely limiting adolescents' abilities to make
individual, healthy behaviour choices. For example, the
decision to engage in unsafe sex increases adolescents'
risk of ill health.
63. In accordance with article 23 of the Convention, adolescents
with mental and/or physical disabilities have an equal right
to the highest attainable standard of physical and mental
health. States parties have an obligation to provide adolescents
with disabilities with the means necessary to realize their
rights. States parties should (a) ensure that health facilities,
goods and services are available and accessible to all adolescents
with disabilities and that these facilities and services
promote their self-reliance and their active participation
in the community; (b) ensure that the necessary equipment
and personal support are available to enable them to move
around, participate and communicate; (c) pay specific attention
to the special needs relating to the sexuality of adolescents
with disabilities; and (d) remove barriers that hinder adolescents
with disabilities in realizing their rights.
64. States parties have to provide special protection to
homeless adolescents, including those working in the informal
sector. Homeless adolescents are particularly vulnerable
to violence, abuse and sexual exploitation from others,
self-destructive behaviour, substance abuse and mental disorders.
In this regard, States parties are required to (a) develop
policies and enact and enforce legislation that protect
such adolescents from violence, e.g. by law enforcement
officials; (b) develop strategies for the provision of appropriate
education and access to health care, and of opportunities
for the development of livelihood skills.
65. Adolescents who are sexually exploited, including in
prostitution and pornography, are exposed to significant
health risks, including STDs, HIV/AIDS, unwanted pregnancies,
unsafe abortions, violence and psychological distress. They
have the right to physical and psychological recovery and
social reintegration in an environment that fosters health,
self respect and dignity (art. 39). It is the obligation
of States parties to enact and enforce laws to prohibit
all forms of sexual exploitation and related trafficking;
to collaborate with other States parties to eliminate intercountry
trafficking; and to provide appropriate health and counselling
services to adolescents who have been sexually exploited,
making sure that they are treated as victims and not as
offenders.
66. Additionally, adolescents experiencing poverty, armed
conflicts, all forms of injustice, family breakdown, political,
social and economic instability and all types of migration
may be particularly vulnerable. These situations might seriously
hamper their health and development. By investing heavily
in preventive policies and measures States parties can drastically
reduce levels of vulnerability and risk factors; they will
also provide cost-effective ways for society to help adolescents
develop harmoniously in a free society.
V. Nature of States' obligations
67. In exercising their obligations in relation to the
health and development of adolescents, States parties shall
always take fully into account the four general principles
of the Convention. It is the view of the Committee that
States parties must take all appropriate legislative, administrative
and other measures for the realization and monitoring of
the rights of adolescents to health and development as recognized
in the Convention. To this end, States parties must notably
fulfil the following obligations:
(a) To create a safe and supportive environment for
adolescents, including within their family, in schools,
in all types of institutions in which they may live, within
their workplace and/or in the society at large;
(b) To ensure that adolescents have access to the information
that is essential for their health and development and
that they have opportunities to participate in decisions
affecting their health (notably through informed consent
and the right of confidentiality), to acquire life skills,
to obtain adequate and age-appropriate information, and
to make appropriate health behaviour choices;
(c) To ensure that health facilities, goods and services,
including counselling and health services for mental and
sexual and reproductive health, of appropriate quality
and sensitive to adolescents' concerns are available to
all adolescents;
(d) To ensure that adolescent girls and boys have the
opportunity to participate actively in planning and programming
for their own health and development;
(e) To protect adolescents from all forms of labour which
may jeopardize the enjoyment of their rights, notably
by abolishing all forms of child labour and by regulating
the working environment and conditions in accordance with
international standards;
(f) To protect adolescents from all forms of intentional
and unintentional injuries, including those resulting
from violence and road traffic accidents;
(g) To protect adolescents from all harmful traditional
practices, such as early marriages, honour killings and
female genital mutilation;
(h) To ensure that adolescents belonging to especially
vulnerable groups are fully taken into account in the
fulfilment of all aforementioned obligations;
(i) To implement measures for the prevention of mental
disorders and the promotion of mental health of adolescents.
68. The Committee draws the attention of States parties
to the general comment No. 14 on the right to the highest
attainable standard of health of the Committee on Economic,
Social and Cultural Rights which states that, "States
parties should provide a safe and supportive environment
for adolescents that ensures the opportunity to participate
in decisions affecting their health, to build life skills,
to acquire appropriate information, to receive counselling
and to negotiate the health-behaviour choices they make.
The realization of the right to health of adolescents is
dependent on the development of youth-sensitive health care,
which respects confidentiality and privacy and includes
appropriate sexual and reproductive health services."
69. In accordance with articles 24, 39 and other related
provisions of the Convention, States parties should provide
health services that are sensitive to the particular needs
and human rights of all adolescents, paying attention to
the following characteristics:
(a) Availability. Primary health care should include
services sensitive to the needs of adolescents, with special
attention given to sexual and reproductive health and
mental health;
(b) Accessibility. Health facilities, goods and services
should be known and easily accessible (economically, physically
and socially) to all adolescents, without discrimination.
Confidentiality should be guaranteed, when necessary;
(c) Acceptability. While fully respecting the provisions
and principles of the Convention, all health facilities,
goods and services should respect cultural values, be
gender sensitive, be respectful of medical ethics and
be acceptable to both adolescents and the communities
in which they live;
(d) Quality. Health services and goods should be scientifically
and medically appropriate, which requires personnel trained
to care for adolescents, adequate facilities and scientifically
accepted methods.
70. States parties should, where feasible, adopt a multisectoral
approach to the promotion and protection of adolescent health
and development by facilitating effective and sustainable
linkages and partnerships among all relevant actors. At
the national level, such an approach calls for close and
systematic collaboration and coordination within Government,
so as to ensure the necessary involvement of all relevant
government entities. Public health and other services utilized
by adolescents should also be encouraged and assisted in
seeking collaboration with, inter alia, private and/or traditional
practitioners, professional associations, pharmacies and
organizations that provide services to vulnerable groups
of adolescents.
71. A multisectoral approach to the promotion and protection
of adolescent health and development will not be effective
without international cooperation. Therefore, States parties
should, when appropriate, seek such cooperation with United
Nations specialized agencies, programmes and bodies, international
NGOs and bilateral aid agencies, international professional
associations and other non-State actors.
COMMITTEE ON THE RIGHTS OF THE CHILD
Thirty-fourth session
19 September-3 October 2003
General Comment NO. 5 (2003) General measures of implementation
of the Convention on the Rights of the Child (arts. 4, 42
and 44, para. 6)
FOREWORD
The Committee on the Rights of the Child has drafted this
general comment to outline States parties' obligations to
develop what it has termed "general measures of implementation".
The various elements of the concept are complex and the
Committee emphasizes that it is likely to issue more detailed
general comments on individual elements in due course, to
expand on this outline. Its general comment No. 2 (2002)
entitled "The role of independent national human rights
institutions in the protection and promotion of the rights
of the child" has already expanded on this concept.
Article 4
"States Parties shall undertake all appropriate legislative,
administrative, and other measures for the implementation
of the rights recognized in the present Convention. With
regard to economic, social and cultural rights, States Parties
shall undertake such measures to the maximum extent of their
available resources and, where needed, within the framework
of international cooperation."
I. INTRODUCTION
72. When a State ratifies the Convention on the Rights
of the Child, it takes on obligations under international
law to implement it. Implementation is the process whereby
States parties take action to ensure the realization of
all rights in the Convention for all children in their jurisdiction.
Article 4 requires States parties to take "all appropriate
legislative, administrative and other measures" for
implementation of the rights contained therein. While it
is the State which takes on obligations under the Convention,
its task of implementation - of making reality of the human
rights of children - needs to engage all sectors of society
and, of course, children themselves. Ensuring that all domestic
legislation is fully compatible with the Convention and
that the Convention's principles and provisions can be directly
applied and appropriately enforced is fundamental. In addition,
the Committee on the Rights of the Child has identified
a wide range of measures that are needed for effective implementation,
including the development of special structures and monitoring,
training and other activities in Government, parliament
and the judiciary at all levels.
73. In its periodic examination of States parties' reports
under the Convention, the Committee pays particular attention
to what it has termed "general measures of implementation".
In its concluding observations issued following examination,
the Committee provides specific recommendations relating
to general measures. It expects the State party to describe
action taken in response to these recommendations in its
subsequent periodic report. The Committee's reporting guidelines
arrange the Convention's articles in clusters, the first
being on "general measures of implementation"
and groups article 4 with article 42 (the obligation to
make the content of the Convention widely known to children
and adults; see, paragraph 66 below) and article 44, paragraph
6 (the obligation to make reports widely available within
the State; see paragraph 71 below).
74. In addition to these provisions, other general implementation
obligations are set out in article 2: "States Parties
shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without
discrimination of any kind …".
75. Also under article 3, paragraph 2, "States Parties
undertake to ensure the child such protection and care as
is necessary for his or her well-being, taking into account
the rights and duties of his or her parents, legal guardians,
or other individuals legally responsible for him or her,
and, to this end, shall take all appropriate legislative
and administrative measures."
76. In international human rights law, there are articles
similar to article 4 of the Convention, setting out overall
implementation obligations, such as article 2 of the International
Covenant on Civil and Political Rights and article 2 of
the International Covenant on Economic, Social and Cultural
Rights. The Human Rights Committee and the Committee on
Economic, Social and Cultural Rights have issued general
comments in relation to these provisions which should be
seen as complementary to the present general comment and
which are referred to below.
77. Article 4, while reflecting States parties' overall
implementation obligation, suggests a distinction between
civil and political rights and economic, social and cultural
rights in its second sentence: "With regard to economic,
social and cultural rights, States Parties shall undertake
such measures to the maximum extent of their available resources
and, where needed, within the framework of international
cooperation." There is no simple or authoritative division
of human rights in general or of Convention rights into
the two categories. The Committee's reporting guidelines
group articles 7, 8, 13-17 and 37 (a) under the heading
"Civil rights and freedoms", but indicate by the
context that these are not the only civil and political
rights in the Convention. Indeed, it is clear that many
other articles, including articles 2, 3, 6 and 12 of the
Convention, contain elements which constitute civil/political
rights, thus reflecting the interdependence and indivisibility
of all human rights. Enjoyment of economic, social and cultural
rights is inextricably intertwined with enjoyment of civil
and political rights. As noted in paragraph 25 below, the
Committee believes that economic, social and cultural rights,
as well as civil and political rights, should be regarded
as justiciable.
78. The second sentence of article 4 reflects a realistic
acceptance that lack of resources - financial and other
resources - can hamper the full implementation of economic,
social and cultural rights in some States; this introduces
the concept of "progressive realization" of such
rights: States need to be able to demonstrate that they
have implemented "to the maximum extent of their available
resources" and, where necessary, have sought international
cooperation . When States ratify the Convention, they take
upon themselves obligations not only to implement it within
their jurisdiction, but also to contribute, through international
cooperation, to global implementation (see paragraph 60
below).
79. The sentence is similar to the wording used in the International
Covenant on Economic, Social and Cultural Rights and the
Committee entirely concurs with the Committee on Economic,
Social and Cultural Rights in asserting that "even
where the available resources are demonstrably inadequate,
the obligation remains for a State party to strive to ensure
the widest possible enjoyment of the relevant rights under
the prevailing circumstances …". Whatever their
economic circumstances, States are required to undertake
all possible measures towards the realization of the rights
of the child, paying special attention to the most disadvantaged
groups.
80. The general measures of implementation identified by
the Committee and described in the present general comment
are intended to promote the full enjoyment of all rights
in the Convention by all children, through legislation,
the establishment of coordinating and monitoring bodies
- governmental and independent - comprehensive data collection,
awareness-raising and training and the development and implementation
of appropriate policies, services and programmes. One of
the satisfying results of the adoption and almost universal
ratification of the Convention has been the development
at the national level of a wide variety of new child focused
and child-sensitive bodies, structures and activities -
children's rights units at the heart of Government, ministers
for children, inter-ministerial committees on children,
parliamentary committees, child impact analysis, children's
budgets and "state of children's rights" reports,
NGO coalitions on children's rights, children's ombudspersons
and children's rights commissioners and so on.
81. While some of these developments may seem largely cosmetic,
their emergence at the least indicates a change in the perception
of the child's place in society, a willingness to give higher
political priority to children and an increasing sensitivity
to the impact of governance on children and their human
rights.
82. The Committee emphasizes that, in the context of the
Convention, States must see their role as fulfilling clear
legal obligations to each and every child. Implementation
of the human rights of children must not be seen as a charitable
process, bestowing favours on children.
83. The development of a children's rights perspective throughout
Government, parliament and the judiciary is required for
effective implementation of the whole Convention and, in
particular, in the light of the following articles in the
Convention identified by the Committee as general principles:
Article 2: the obligation of States to respect and ensure
the rights set forth in the Convention to each child within
their jurisdiction without discrimination of any kind. This
non-discrimination obligation requires States actively to
identify individual children and groups of children the
recognition and realization of whose rights may demand special
measures. For example, the Committee highlights, in particular,
the need for data collection to be disaggregated to enable
discrimination or potential discrimination to be identified.
Addressing discrimination may require changes in legislation,
administration and resource allocation, as well as educational
measures to change attitudes. It should be emphasized that
the application of the non discrimination principle of equal
access to rights does not mean identical treatment. A general
comment by the Human Rights Committee has underlined the
importance of taking special measures in order to diminish
or eliminate conditions that cause discrimination.
Article 3 (1): the best interests of the child as a primary
consideration in all actions concerning children. The article
refers to actions undertaken by "public or private
social welfare institutions, courts of law, administrative
authorities or legislative bodies". The principle requires
active measures throughout Government, parliament and the
judiciary. Every legislative, administrative and judicial
body or institution is required to apply the best interests
principle by systematically considering how children's rights
and interests are or will be affected by their decisions
and actions - by, for example, a proposed or existing law
or policy or administrative action or court decision, including
those which are not directly concerned with children, but
indirectly affect children.
Article 6: the child's inherent right to life and States
parties' obligation to ensure to the maximum extent possible
the survival and development of the child. The Committee
expects States to interpret "development" in its
broadest sense as a holistic concept, embracing the child's
physical, mental, spiritual, moral, psychological and social
development. Implementation measures should be aimed at
achieving the optimal development for all children.
Article 12: the child's right to express his or her views
freely in "all matters affecting the child", those
views being given due weight. This principle, which highlights
the role of the child as an active participant in the promotion,
protection and monitoring of his or her rights, applies
equally to all measures adopted by States to implement the
Convention.
Opening government decision-making processes to children
is a positive challenge which the Committee finds States
are increasingly responding to. Given that few States as
yet have reduced the voting age below 18, there is all the
more reason to ensure respect for the views of unenfranchised
children in Government and parliament. If consultation is
to be meaningful, documents as well as processes need to
be made accessible. But appearing to "listen"
to children is relatively unchallenging; giving due weight
to their views requires real change. Listening to children
should not be seen as an end in itself, but rather as a
means by which States make their interactions with children
and their actions on behalf of children ever more sensitive
to the implementation of children's rights.
One-off or regular events like Children's Parliaments can
be stimulating and raise general awareness. But article
12 requires consistent and ongoing arrangements. Involvement
of and consultation with children must also avoid being
tokenistic and aim to ascertain representative views. The
emphasis on "matters that affect them" in article
12 (1) implies the ascertainment of the views of particular
groups of children on particular issues - for example children
who have experience of the juvenile justice system on proposals
for law reform in that area, or adopted children and children
in adoptive families on adoption law and policy. It is important
that Governments develop a direct relationship with children,
not simply one mediated through non-governmental organizations
(NGOs) or human rights institutions. In the early years
of the Convention, NGOs had played a notable role in pioneering
participatory approaches with children, but it is in the
interests of both Governments and children to have appropriate
direct contact.
II. REVIEW OF RESERVATIONS
84. In its reporting guidelines on general measures of
implementation, the Committee starts by inviting the State
party to indicate whether it considers it necessary to maintain
the reservations it has made, if any, or has the intention
of withdrawing them. States parties to the Convention are
entitled to make reservations at the time of their ratification
of or accession to it (art. 51). The Committee's aim of
ensuring full and unqualified respect for the human rights
of children can be achieved only if States withdraw their
reservations. It consistently recommends during its examination
of reports that reservations be reviewed and withdrawn.
Where a State, after review, decides to maintain a reservation,
the Committee requests that a full explanation be included
in the next periodic report. The Committee draws the attention
of States parties to the encouragement given by the World
Conference on Human Rights to the review and withdrawal
of reservations.
85. Article 2 of the Vienna Convention on the Law of Treaties
defines "reservation" as a "unilateral statement,
however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a Treaty,
whereby it purports to exclude or to modify the legal effect
of certain provisions of the Treaty in their application
to that State". The Vienna Convention notes that States
are entitled, at the time of ratification or accession to
a treaty, to make a reservation unless it is "incompatible
with the object and purpose of the treaty" (art. 19).
86. Article 51, paragraph 2, of the Convention on the Rights
of the Child reflects this: "A reservation incompatible
with the object and purpose of the present Convention shall
not be permitted". The Committee is deeply concerned
that some States have made reservations which plainly breach
article 51 (2) by suggesting, for example, that respect
for the Convention is limited by the State's existing Constitution
or legislation, including in some cases religious law. Article
27 of the Vienna Convention on the Law of Treaties provides:
"A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty".
87. The Committee notes that, in some cases, States parties
have lodged formal objections to such wide-ranging reservations
made by other States parties. It commends any action which
contributes to ensuring the fullest possible respect for
the Convention in all States parties.
III. RATIFICATION OF OTHER KEY INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS
88. As part of its consideration of general measures of
implementation, and in the light of the principles of indivisibility
and interdependence of human rights, the Committee consistently
urges States parties, if they have not already done so,
to ratify the two Optional Protocols to the Convention on
the Rights of the Child (on the involvement of children
in armed conflict and on the sale of children, child prostitution
and child pornography) and the six other major international
human rights instruments. During its dialogue with States
parties the Committee often encourages them to consider
ratifying other relevant international instruments. A non
exhaustive list of these instruments is annexed to the present
general comment, which the Committee will update from time
to time.
IV. LEGISLATIVE MEASURES
89. The Committee believes a comprehensive review of all
domestic legislation and related administrative guidance
to ensure full compliance with the Convention is an obligation.
Its experience in examining not only initial but now second
and third periodic reports under the Convention suggests
that the review process at the national level has, in most
cases, been started, but needs to be more rigorous. The
review needs to consider the Convention not only article
by article, but also holistically, recognizing the interdependence
and indivisibility of human rights. The review needs to
be continuous rather than one-off, reviewing proposed as
well as existing legislation. And while it is important
that this review process should be built into the machinery
of all relevant government departments, it is also advantageous
to have independent review by, for example, parliamentary
committees and hearings, national human rights institutions,
NGOs, academics, affected children and young people and
others.
90. States parties need to ensure, by all appropriate means,
that the provisions of the Convention are given legal effect
within their domestic legal systems. This remains a challenge
in many States parties. Of particular importance is the
need to clarify the extent of applicability of the Convention
in States where the principle of "self-execution"
applies and others where it is claimed that the Convention
"has constitutional status" or has been incorporated
into domestic law.
91. The Committee welcomes the incorporation of the Convention
into domestic law, which is the traditional approach to
the implementation of international human rights instruments
in some but not all States. Incorporation should mean that
the provisions of the Convention can be directly invoked
before the courts and applied by national authorities and
that the Convention will prevail where there is a conflict
with domestic legislation or common practice. Incorporation
by itself does not avoid the need to ensure that all relevant
domestic law, including any local or customary law, is brought
into compliance with the Convention. In case of any conflict
in legislation, predominance should always be given to the
Convention, in the light of article 27 of the Vienna Convention
on the Law of Treaties. Where a State delegates powers to
legislate to federated regional or territorial governments,
it must also require these subsidiary governments to legislate
within the framework of the Convention and to ensure effective
implementation (see also paragraphs 40 et seq. below).
92. Some States have suggested to the Committee that the
inclusion in their Constitution of guarantees of rights
for "everyone" is adequate to ensure respect for
these rights for children. The test must be whether the
applicable rights are truly realized for children and can
be directly invoked before the courts. The Committee welcomes
the inclusion of sections on the rights of the child in
national constitutions, reflecting key principles in the
Convention, which helps to underline the key message of
the Convention - that children alongside adults are holders
of human rights. But this inclusion does not automatically
ensure respect for the rights of children. In order to promote
the full implementation of these rights, including, where
appropriate, the exercise of rights by children themselves,
additional legislative and other measures may be necessary.
93. The Committee emphasizes, in particular, the importance
of ensuring that domestic law reflects the identified general
principles in the Convention (arts. 2, 3, 6 and 12 (see
paragraph 12 above)). The Committee welcomes the development
of consolidated children's rights statutes, which can highlight
and emphasize the Convention's principles. But the Committee
emphasizes that it is crucial in addition that all relevant
"sectoral" laws (on education, health, justice
and so on) reflect consistently the principles and standards
of the Convention.
The Committee encourages all States parties to enact and
implement within their jurisdiction legal provisions that
are more conducive to the realization of the rights of the
child than those contained in the Convention, in the light
of article 41. The Committee emphasizes that the other international
human rights instruments apply to all persons below the
age of 18 years.
V. JUSTICIABILITY OF RIGHTS
94. For rights to have meaning, effective remedies must
be available to redress violations. This requirement is
implicit in the Convention and consistently referred to
in the other six major international human rights treaties.
Children's special and dependent status creates real difficulties
for them in pursuing remedies for breaches of their rights.
So States need to give particular attention to ensuring
that there are effective, child-sensitive procedures available
to children and their representatives. These should include
the provision of child-friendly information, advice, advocacy,
including support for self-advocacy, and access to independent
complaints procedures and to the courts with necessary legal
and other assistance. Where rights are found to have been
breached, there should be appropriate reparation, including
compensation, and, where needed, measures to promote physical
and psychological recovery, rehabilitation and reintegration,
as required by article 39.
95. As noted in paragraph 6 above, the Committee emphasizes
that economic, social and cultural rights, as well as civil
and political rights, must be regarded as justiciable. It
is essential that domestic law sets out entitlements in
sufficient detail to enable remedies for non-compliance
to be effective.
VI. ADMINISTRATIVE AND OTHER MEASURES
96. The Committee cannot prescribe in detail the measures
which each or every State party will find appropriate to
ensure effective implementation of the Convention. But from
its first decade's experience of examining States parties'
reports and from its ongoing dialogue with Governments and
with the United Nations and United Nations-related agencies,
NGOs and other competent bodies, it has distilled here some
key advice for States.
97. The Committee believes that effective implementation
of the Convention requires visible cross-sectoral coordination
to recognize and realize children's rights across Government,
between different levels of government and between Government
and civil society including in particular children and young
people themselves. Invariably, many different government
departments and other governmental or quasi-governmental
bodies affect children's lives and children's enjoyment
of their rights. Few, if any, government departments have
no effect on children's lives, direct or indirect. Rigorous
monitoring of implementation is required, which should be
built into the process of government at all levels but also
independent monitoring by national human rights institutions,
NGOs and others.
A. Developing a comprehensive national strategy rooted in
the Convention
98. If Government as a whole and at all levels is to promote
and respect the rights of the child, it needs to work on
the basis of a unifying, comprehensive and rights-based
national strategy, rooted in the Convention.
99. The Committee commends the development of a comprehensive
national strategy or national plan of action for children,
built on the framework of the Convention. The Committee
expects States parties to take account of the recommendations
in its concluding observations on their periodic reports
when developing and/or reviewing their national strategies.
If such a strategy is to be effective, it needs to relate
to the situation of all children, and to all the rights
in the Convention. It will need to be developed through
a process of consultation, including with children and young
people and those living and working with them. As noted
above (para. 12), meaningful consultation with children
requires special child-sensitive materials and processes;
it is not simply about extending to children access to adult
processes.
100. Particular attention will need to be given to identifying
and giving priority to marginalized and disadvantaged groups
of children. The non-discrimination principle in the Convention
requires that all the rights guaranteed by the Convention
should be recognized for all children within the jurisdiction
of States. As noted above (para. 12), the non-discrimination
principle does not prevent the taking of special measures
to diminish discrimination.
101. To give the strategy authority, it will need to be
endorsed at the highest level of government. Also, it needs
to be linked to national development planning and included
in national budgeting; otherwise, the strategy may remain
marginalized outside key decision making processes.
102. The strategy must not be simply a list of good intentions;
it must include a description of a sustainable process for
realizing the rights of children throughout the State; it
must go beyond statements of policy and principle, to set
real and achievable targets in relation to the full range
of economic, social and cultural and civil and political
rights for all children. The comprehensive national strategy
may be elaborated in sectoral national plans of action -
for example for education and health - setting out specific
goals, targeted implementation measures and allocation of
financial and human resources. The strategy will inevitably
set priorities, but it must not neglect or dilute in any
way the detailed obligations which States parties have accepted
under the Convention. The strategy needs to be adequately
resourced, in human and financial terms.
103. Developing a national strategy is not a one-off task.
Once drafted the strategy will need to be widely disseminated
throughout Government and to the public, including children
(translated into child-friendly versions as well as into
appropriate languages and forms). The strategy will need
to include arrangements for monitoring and continuous review,
for regular updating and for periodic reports to parliament
and to the public.
104. The "national plans of action" which States
were encouraged to develop following the first World Summit
for Children, held in 1990, were related to the particular
commitments set by nations attending the Summit. In 1993,
the Vienna Declaration and Programme of Action, adopted
by the World Conference on Human Rights, called on States
to integrate the Convention on the Rights of the Child into
their national human rights action plans.
105. The outcome document of the United Nations General
Assembly special session on children, in 2002, also commits
States "to develop or strengthen as a matter of urgency
if possible by the end of 2003 national and, where appropriate,
regional action plans with a set of specific time-bound
and measurable goals and targets based on this plan of action
…". The Committee welcomes the commitments made
by States to achieve the goals and targets set at the special
session on children and identified in the outcome document,
A World Fit for Children. But the Committee emphasizes that
making particular commitments at global meetings does not
in any way reduce States parties' legal obligations under
the Convention. Similarly, preparing specific plans of action
in response to the special session does not reduce the need
for a comprehensive implementation strategy for the Convention.
States should integrate their response to the 2002 special
session and to other relevant global conferences into their
overall implementation strategy for the Convention as a
whole.
106. The outcome document also encourages States parties
to "consider including in their reports to the Committee
on the Rights of the Child information on measures taken
and results achieved in the implementation of the present
Plan of Action". The Committee endorses this proposal;
it is committed to monitoring progress towards meeting the
commitments made at the special session and will provide
further guidance in its revised guidelines for periodic
reporting under the Convention.
B. Coordination of implementation of children's rights
107. In examining States parties' reports the Committee
has almost invariably found it necessary to encourage further
coordination of government to ensure effective implementation:
coordination among central government departments, among
different provinces and regions, between central and other
levels of government and between Government and civil society.
The purpose of coordination is to ensure respect for all
of the Convention's principles and standards for all children
within the State jurisdiction; to ensure that the obligations
inherent in ratification of or accession to the Convention
are not only recognized by those large departments which
have a substantial impact on children education, health
or welfare and so on but right across Government, including
for example departments concerned with finance, planning,
employment and defence, and at all levels.
108. The Committee believes that, as a treaty body, it is
not advisable for it to attempt to prescribe detailed arrangements
appropriate for very different systems of government across
States parties. There are many formal and informal ways
of achieving effective coordination, including for example
inter-ministerial and interdepartmental committees for children.
The Committee proposes that States parties, if they have
not already done so, should review the machinery of government
from the perspective of implementation of the Convention
and in particular of the four articles identified as providing
general principles (see paragraph 12 above).
109. Many States parties have with advantage developed a
specific department or unit close to the heart of Government,
in some cases in the President's or Prime Minister's or
Cabinet office, with the objective of coordinating implementation
and children's policy. As noted above, the actions of virtually
all government departments impact on children's lives. It
is not practicable to bring responsibility for all children's
services together into a single department, and in any case
doing so could have the danger of further marginalizing
children in Government. But a special unit, if given high-level
authority reporting directly, for example, to the Prime
Minister, the President or a Cabinet Committee on children
can contribute both to the overall purpose of making children
more visible in Government and to coordination to ensure
respect for children's rights across Government and at all
levels of Government. Such a unit can be given responsibility
for developing the comprehensive children's strategy and
monitoring its implementation, as well as for coordinating
reporting under the Convention.
C. Decentralization, federalization and delegation
110. The Committee has found it necessary to emphasize
to many States that decentralization of power, through devolution
and delegation of government, does not in any way reduce
the direct responsibility of the State party's Government
to fulfil its obligations to all children within its jurisdiction,
regardless of the State structure.
111. The Committee reiterates that in all circumstances
the State which ratified or acceded to the Convention remains
responsible for ensuring the full implementation of the
Convention throughout the territories under its jurisdiction.
In any process of devolution, States parties have to make
sure that the devolved authorities do have the necessary
financial, human and other resources effectively to discharge
responsibilities for the implementation of the Convention.
The Governments of States parties must retain powers to
require full compliance with the Convention by devolved
administrations or local authorities and must establish
permanent monitoring mechanisms to ensure that the Convention
is respected and applied for all children within its jurisdiction
without discrimination. Further, there must be safeguards
to ensure that decentralization or devolution does not lead
to discrimination in the enjoyment of rights by children
in different regions.
D. Privatization
112. The process of privatization of services can have
a serious impact on the recognition and realization of children's
rights. The Committee devoted its 2002 day of general discussion
to the theme "The private sector as service provider
and its role in implementing child rights", defining
the private sector as including businesses, NGOs and other
private associations, both for profit and not-for-profit.
Following that day of general discussion, the Committee
adopted detailed recommendations to which it draws the attention
of States parties.
113. The Committee emphasizes that States parties to the
Convention have a legal obligation to respect and ensure
the rights of children as stipulated in the Convention,
which includes the obligation to ensure that non-State service
providers operate in accordance with its provisions, thus
creating indirect obligations on such actors.
114. The Committee emphasizes that enabling the private
sector to provide services, run institutions and so on does
not in any way lessen the State's obligation to ensure for
all children within its jurisdiction the full recognition
and realization of all rights in the Convention (arts. 2
(1) and 3 (2)). Article 3 (1) establishes that the best
interests of the child shall be a primary consideration
in all actions concerning children, whether undertaken by
public or private bodies. Article 3 (3) requires the establishment
of appropriate standards by competent bodies (bodies with
the appropriate legal competence), in particular, in the
areas of health, and with regard to the number and suitability
of staff. This requires rigorous inspection to ensure compliance
with the Convention. The Committee proposes that there should
be a permanent monitoring mechanism or process aimed at
ensuring that all State and non-State service providers
respect the Convention.
E. Monitoring implementation the need for child impact assessment
and evaluation
115. Ensuring that the best interests of the child are
a primary consideration in all actions concerning children
(art. 3 (1)), and that all the provisions of the Convention
are respected in legislation and policy development and
delivery at all levels of government demands a continuous
process of child impact assessment (predicting the impact
of any proposed law, policy or budgetary allocation which
affects children and the enjoyment of their rights) and
child impact evaluation (evaluating the actual impact of
implementation). This process needs to be built into government
at all levels and as early as possible in the development
of policy.
116. Self-monitoring and evaluation is an obligation for
Governments. But the Committee also regards as essential
the independent monitoring of progress towards implementation
by, for example, parliamentary committees, NGOs, academic
institutions, professional associations, youth groups and
independent human rights institutions (see paragraph 65
below).
117. The Committee commends certain States which have adopted
legislation requiring the preparation and presentation to
parliament and/or the public of formal impact analysis statements.
Every State should consider how it can ensure compliance
with article 3 (1) and do so in a way which further promotes
the visible integration of children in policy-making and
sensitivity to their rights.
F. Data collection and analysis and development of indicators
118. Collection of sufficient and reliable data on children,
disaggregated to enable identification of discrimination
and/or disparities in the realization of rights, is an essential
part of implementation. The Committee reminds States parties
that data collection needs to extend over the whole period
of childhood, up to the age of 18 years. It also needs to
be coordinated throughout the jurisdiction, ensuring nationally
applicable indicators. States should collaborate with appropriate
research institutes and aim to build up a complete picture
of progress towards implementation, with qualitative as
well as quantitative studies. The reporting guidelines for
periodic reports call for detailed disaggregated statistical
and other information covering all areas of the Convention.
It is essential not merely to establish effective systems
for data collection, but to ensure that the data collected
are evaluated and used to assess progress in implementation,
to identify problems and to inform all policy development
for children. Evaluation requires the development of indicators
related to all rights guaranteed by the Convention.
119. The Committee commends States parties which have introduced
annual publication of comprehensive reports on the state
of children's rights throughout their jurisdiction. Publication
and wide dissemination of and debate on such reports, including
in parliament, can provide a focus for broad public engagement
in implementation. Translations, including child-friendly
versions, are essential for engaging children and minority
groups in the process.
120. The Committee emphasizes that, in many cases, only
children themselves are in a position to indicate whether
their rights are being fully recognized and realized. Interviewing
children and using children as researchers (with appropriate
safeguards) is likely to be an important way of finding
out, for example, to what extent their civil rights, including
the crucial right set out in article 12, to have their views
heard and given due consideration, are respected within
the family, in schools and so on.
G. Making children visible in budgets
121. In its reporting guidelines and in the consideration
of States parties' reports, the Committee has paid much
attention to the identification and analysis of resources
for children in national and other budgets. No State can
tell whether it is fulfilling children's economic, social
and cultural rights "to the maximum extent of …
available resources", as it is required to do under
article 4, unless it can identify the proportion of national
and other budgets allocated to the social sector and, within
that, to children, both directly and indirectly. Some States
have claimed it is not possible to analyse national budgets
in this way. But others have done it and publish annual
"children's budgets". The Committee needs to know
what steps are taken at all levels of Government to ensure
that economic and social planning and decision-making and
budgetary decisions are made with the best interests of
children as a primary consideration and that children, including
in particular marginalized and disadvantaged groups of children,
are protected from the adverse effects of economic policies
or financial downturns.
122. Emphasizing that economic policies are never neutral
in their effect on children's rights, the Committee has
been deeply concerned by the often negative effects on children
of structural adjustment programmes and transition to a
market economy. The implementation duties of article 4 and
other provisions of the Convention demand rigorous monitoring
of the effects of such changes and adjustment of policies
to protect children's economic, social and cultural rights.
H. Training and capacity-building
123. The Committee emphasizes States' obligation to develop
training and capacity-building for all those involved in
the implementation process - government officials, parliamentarians
and members of the judiciary - and for all those working
with and for children. These include, for example, community
and religious leaders, teachers, social workers and other
professionals, including those working with children in
institutions and places of detention, the police and armed
forces, including peacekeeping forces, those working in
the media and many others. Training needs to be systematic
and ongoing initial training and re-training. The purpose
of training is to emphasize the status of the child as a
holder of human rights, to increase knowledge and understanding
of the Convention and to encourage active respect for all
its provisions. The Committee expects to see the Convention
reflected in professional training curricula, codes of conduct
and educational curricula at all levels. Understanding and
knowledge of human rights must, of course, be promoted among
children themselves, through the school curriculum and in
other ways (see also paragraph 69 below and the Committee's
General Comment No. 1 (2001) on the aims of education).
124. The Committee's guidelines for periodic reports mention
many aspects of training, including specialist training,
which are essential if all children are to enjoy their rights.
The Convention highlights the importance of the family in
its preamble and in many articles. It is particularly important
that the promotion of children's rights should be integrated
into preparation for parenthood and parenting education.
125. There should be periodic evaluation of the effectiveness
of training, reviewing not only knowledge of the Convention
and its provisions but also the extent to which it has contributed
to developing attitudes and practice which actively promote
enjoyment by children of their rights.
I. Cooperation with civil society
126. Implementation is an obligation for States parties,
but needs to engage all sectors of society, including children
themselves. The Committee recognizes that responsibilities
to respect and ensure the rights of children extend in practice
beyond the State and State-controlled services and institutions
to include children, parents and wider families, other adults,
and non State services and organizations. The Committee
concurs, for example, with general comment No. 14 (2000)
of the Committee on Economic, Social and Cultural Rights
on the right to the highest attainable standard of health,
paragraph 42, of which states: "While only States are
parties to the Covenant and thus ultimately accountable
for compliance with it, all members of society - individuals,
including health professionals, families, local communities,
intergovernmental and non-governmental organizations, civil
society organizations, as well as the private business sector
- have responsibilities regarding the realization of the
right to health. States parties should therefore provide
an environment which facilitates the discharge of these
responsibilities."
127. Article 12 of the Convention, as already emphasized
(see paragraph 12 above), requires due weight to be given
to children's views in all matters affecting them, which
plainly includes implementation of "their" Convention.
128. The State needs to work closely with NGOs in the widest
sense, while respecting their autonomy; these include, for
example, human rights NGOs, child- and youth-led organizations
and youth groups, parent and family groups, faith groups,
academic institutions and professional associations. NGOs
played a crucial part in the drafting of the Convention
and their involvement in the process of implementation is
vital.
129. The Committee welcomes the development of NGO coalitions
and alliances committed to promoting, protecting and monitoring
children's human rights and urges Governments to give them
non-directive support and to develop positive formal as
well as informal relationships with them. The engagement
of NGOs in the reporting process under the Convention, coming
within the definition of "competent bodies" under
article 45 (a), has in many cases given a real impetus to
the process of implementation as well as reporting. The
NGO Group for the Convention on the Rights of the Child
has a very welcome, strong and supportive impact on the
reporting process and other aspects of the Committee's work.
The Committee underlines in its reporting guidelines that
the process of preparing a report "should encourage
and facilitate popular participation and public scrutiny
of government policies". The media can be valuable
partners in the process of implementation (see also paragraph
70).
J. International cooperation
130. Article 4 emphasizes that implementation of the Convention
is a cooperative exercise for the States of the world. This
article and others in the Convention highlight the need
for international cooperation. The Charter of the United
Nations (Arts. 55 and 56) identifies the overall purposes
of international economic and social cooperation, and members
pledge themselves under the Charter "to take joint
and separate action in cooperation with the Organization"
to achieve these purposes. In the United Nations Millennium
Declaration and at other global meetings, including the
United Nations General Assembly special session on children,
States have pledged themselves, in particular, to international
cooperation to eliminate poverty.
131. The Committee advises States parties that the Convention
should form the framework for international development
assistance related directly or indirectly to children and
that programmes of donor States should be rights-based.
The Committee urges States to meet internationally agreed
targets, including the United Nations target for international
development assistance of 0.7 per cent of gross domestic
product. This goal was reiterated along with other targets
in the Monterrey Consensus, arising from the 2002 International
Conference on Financing for Development. The Committee encourages
States parties that receive international aid and assistance
to allocate a substantive part of that aid specifically
to children. The Committee expects States parties to be
able to identify on a yearly basis the amount and proportion
of international support earmarked for the implementation
of children's rights.
132. The Committee endorses the aims of the 20/20 initiative,
to achieve universal access to basic social services of
good quality on a sustainable basis, as a shared responsibility
of developing and donor States. The Committee notes that
international meetings held to review progress have concluded
that many States are going to have difficulty meeting fundamental
economic and social rights unless additional resources are
allocated and efficiency in resource allocation is increased.
The Committee takes note of and encourages efforts being
made to reduce poverty in the most heavily indebted countries
through the Poverty Reduction Strategy Paper (PRSP). As
the central, country-led strategy for achieving the millennium
development goals, PRSPs must include a strong focus on
children's rights. The Committee urges Governments, donors
and civil society to ensure that children are a prominent
priority in the development of PRSPs and sectorwide approaches
to development (SWAps). Both PRSPs and SWAps should reflect
children's rights principles, with a holistic, child-centred
approach recognizing children as holders of rights and the
incorporation of development goals and objectives which
are relevant to children.
133. The Committee encourages States to provide and to use,
as appropriate, technical assistance in the process of implementing
the Convention. The United Nations Children's Fund (UNICEF),
the Office of the High Commissioner for Human Rights (OHCHR)
and other United Nations and United Nations related agencies
can provide technical assistance with many aspects of implementation.
States parties are encouraged to identify their interest
in technical assistance in their reports under the Convention.
134. In their promotion of international cooperation and
technical assistance, all United Nations and United Nations-related
agencies should be guided by the Convention and should mainstream
children's rights throughout their activities. They should
seek to ensure within their influence that international
cooperation is targeted at supporting States to fulfil their
obligations under the Convention. Similarly the World Bank
Group, the International Monetary Fund and World Trade Organization
should ensure that their activities related to international
cooperation and economic development give primary consideration
to the best interests of children and promote full implementation
of the Convention.
K. Independent human rights institutions
135. In its general comment No. 2 (2002) entitled "The
role of independent national human rights institutions in
the protection and promotion of the rights of the child",
the Committee notes that it "considers the establishment
of such bodies to fall within the commitment made by States
parties upon ratification to ensure the implementation of
the Convention and advance the universal realization of
children's rights". Independent human rights institutions
are complementary to effective government structures for
children; the essential element is independence: "The
role of national human rights institutions is to monitor
independently the State's compliance and progress towards
implementation and to do all it can to ensure full respect
for children's rights. While this may require the institution
to develop projects to enhance the promotion and protection
of children's rights, it should not lead to the Government
delegating its monitoring obligations to the national institution.
It is essential that institutions remain entirely free to
set their own agenda and determine their own activities."
General comment No. 2 provides detailed guidance on the
establishment and operation of independent human rights
institutions for children.
Article 42: Making the Convention known to adults and children
"States Parties undertake to make the principles
and provisions of the Convention widely known, by appropriate
and active means, to adults and children alike."
136. Individuals need to know what their rights are. Traditionally
in most, if not all, societies children have not been regarded
as rights holders. So article 42 acquires a particular importance.
If the adults around children, their parents and other family
members, teachers and carers do not understand the implications
of the Convention, and above all its confirmation of the
equal status of children as subjects of rights, it is most
unlikely that the rights set out in the Convention will
be realized for many children.
137. The Committee proposes that States should develop a
comprehensive strategy for disseminating knowledge of the
Convention throughout society. This should include information
on those bodies - governmental and independent - involved
in implementation and monitoring and on how to contact them.
At the most basic level, the text of the Convention needs
to be made widely available in all languages (and the Committee
commends the collection of official and unofficial translations
of the Convention made by OHCHR. There needs to be a strategy
for dissemination of the Convention among illiterate people.
UNICEF and NGOs in many States have developed child-friendly
versions of the Convention for children of various ages
- a process the Committee welcomes and encourages; these
should also inform children of sources of help and advice.
138. Children need to acquire knowledge of their rights
and the Committee places special emphasis on incorporating
learning about the Convention and human rights in general
into the school curriculum at all stages. The Committee's
general comment No. 1 (2001) entitled "The aims of
education" (art. 29, para. 1), should be read in conjunction
with this. Article 29, paragraph 1, requires that the education
of the child shall be directed to "… the development
of respect for human rights and fundamental freedoms …
". The general comment underlines: "Human rights
education should provide information on the content of human
rights treaties. But children should also learn about human
rights by seeing human rights standards implemented in practice
whether at home, in school or within the community. Human
rights education should be a comprehensive, lifelong process
and start with the reflection of human rights values in
the daily life and experiences of children."
139. Similarly, learning about the Convention needs to be
integrated into the initial and in service training of all
those working with and for children (see paragraph 53 above).
The Committee reminds States parties of the recommendations
it made following its meeting on general measures of implementation
held to commemorate the tenth anniversary of adoption of
the Convention, in which it recalled that "dissemination
and awareness-raising about the rights of the child are
most effective when conceived as a process of social change,
of interaction and dialogue rather than lecturing. Raising
awareness should involve all sectors of society, including
children and young people. Children, including adolescents,
have the right to participate in raising awareness about
their rights to the maximum extent of their evolving capacities".
"The Committee recommends that all efforts to provide
training on the rights of the child be practical, systematic
and integrated into regular professional training in order
to maximize its impact and sustainability. Human rights
training should use participatory methods, and equip professionals
with skills and attitudes that enable them to interact with
children and young people in a manner that respects their
rights, dignity and self respect."
140. The media can play a crucial role in the dissemination
of the Convention and knowledge and understanding of it
and the Committee encourages their voluntary engagement
in the process, which may be stimulated by governments and
by NGOs.
Article 44 (6): Making reports under the Convention widely
available
"… States Parties shall make their reports
widely available to the public in their own countries."
141. If reporting under the Convention is to play the important
part it should in the process of implementation at the national
level, it needs to be known about by adults and children
throughout the State party. The reporting process provides
a unique form of international accountability for how States
treat children and their rights. But unless reports are
disseminated and constructively debated at the national
level, the process is unlikely to have substantial impact
on children's lives.
142. The Convention explicitly requires States to make their
reports widely available to the public; this should be done
when they are submitted to the Committee. Reports should
be made genuinely accessible, for example through translation
into all languages, into appropriate forms for children
and for people with disabilities and so on. The Internet
may greatly aid dissemination, and Governments and parliaments
are strongly urged to place such reports on their web sites.
143. The Committee urges States to make all the other documentation
of the examination of their reports under the Convention
widely available to promote constructive debate and inform
the process of implementation at all levels. In particular,
the Committee's concluding observations should be disseminated
to the public including children and should be the subject
of detailed debate in parliament. Independent human rights
institutions and NGOs can play a crucial role in helping
to ensure widespread debate. The summary records of the
examination of government representatives by the Committee
aid understanding of the process and of the Committee's
requirements and should also be made available and discussed.
Notes
Annex I Ratification of Other Key International
Human Rights Instruments
As noted in paragraph 17 of the present general comment,
the Committee on the Rights of the Child, as part of its
consideration of general measures of implementation, and
in the light of the principles of indivisibility and interdependence
of human rights, consistently urges States parties, if they
have not already done so, to ratify the two Optional Protocols
to the Convention on the Rights of the Child (on the involvement
of children in armed conflict and on the sale of children,
child prostitution and child pornography) and the six other
major international human rights instruments. During its
dialogue with States parties the Committee often encourages
them to consider ratifying other relevant international
instruments. A non exhaustive list of these instruments
is annexed here. The Committee will update this from time
to time.
- Optional Protocol to the International Covenant on
Civil and Political Rights;
- Second Optional Protocol to the International Covenant
on Civil and Political Rights, aiming at the abolition
of the death penalty;
- Optional protocol to the Convention on the Elimination
of All Forms of Discrimination against Women;
- Optional protocol to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- Convention against Discrimination in Education;
- ILO Forced Labour Convention No. 29, 1930;
- ILO Convention No. 105 on Abolition of Forced Labour,
1957;
- ILO Convention No. 138 Concerning Minimum Age for Admission
to Employment, 1973;
- ILO Convention No. 182 on Worst Forms of Child Labour,
1999;
- ILO Convention No. 183 on Maternity Protection, 2000;
- Convention relating to the Status of Refugees of 1951,
as amended by the Protocol relating to the Status of Refugees
of 1967;
- Convention for the Suppression of the Traffic in Persons
and of the Exploitation of the Prostitution of Others
(1949);
- Slavery Convention (1926);
- Protocol amending the Slavery Convention (1953);
- The Supplementary Convention on the Abolition of Slavery,
the Slave Trade and Institutions and Practices Similar
to Slavery (1956);
- Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, supplementing
the United Nations Convention against Transnational Organized
Crime of 2000;
- Geneva Convention relative to the Protection of Civilians
in Time of War;
- Protocol Additional to the Geneva Conventions of 12
August 1949 and relating to the Protection of Victims
of International Armed Conflicts (Protocol I);
- Protocol Additional to the Geneva Conventions of 12
August 1949 and relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II);
- Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti personnel Mines and of
Their Destruction;
- Statute of the International Criminal Court;
- Hague Convention on the Protection of Children and Cooperation
in respect of Intercountry Adoption;
- Hague Convention on the Civil Aspects of International
Child Abduction;
- Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Cooperation in respect of Parental Responsibility
and Measures for the Protection of Children of 1996.
Recommendations following the General discussion on
children living in a world with HIV/AIDS, Committee on the
Rights of the Child, Report on the nineteenth session (Geneva,
Sept. 21- Oct. 9 1998), 19th Sess., para. 243 (n), U.N. Doc
CRC/C/80 (1998)
243. On the basis of the recommendations of the discussion
groups and the general discussion that followed on the various
issues, the following recommendations were formulated by
the Committee:
(a) States, programmes and agencies of the United Nations
system and NGOs should be encouraged to adopt a children's
rights_centred approach to HIV/AIDS. States should incorporate
the rights of the child in their national HIV/AIDS policies
and programmes and include national HIV/AIDS programme
structures in national mechanisms for monitoring and coordinating
children's rights;
(b) States should adopt and disseminate the International
Guidelines on HIV/AIDS and Human Rights and ensure their
implementation at the national level. Programmes and agencies
of the United Nations system, as well as NGOs, should
contribute to the dissemination and implementation of
the guidelines;
(c) The right of children to participate fully and actively
in the formulation and implementation of HIV/AIDS strategies,
programmes and policies should be fully recognized. A
supportive and enabling environment should be provided,
in which children are allowed to participate and receive
support for their own initiatives. The proven effectiveness
of peer education strategies, in particular, should be
recognized and taken into account for its potential contribution
to the mitigation of the impact of the HIV/AIDS epidemic.
The key objective of HIV/AIDS policies should be to empower
children to protect themselves;
(d) Access to information as a fundamental right of the
child should become the key element in HIV/AIDS prevention
strategies. States should review existing laws or enact
new legislation to guarantee the right of children to
have access to HIV/AIDS-related information, including
to voluntary testing;
(e) Information campaigns targeting children should take
into account the diversity of audience groups and be structured
accordingly. Information on HIV/AIDS should be adapted
to the social, cultural and economic context, and it should
be made available through age appropriate media and channels
of dissemination. In the selection of target groups, attention
should be given to the special needs of children who experience
discrimination or who are in need of special protection.
Information strategies should be evaluated for their effectiveness
in leading to changes of attitude. Information on the
Convention on the Rights of the Child and on HIV/AIDS
issues, including the teaching of life skills, should
be incorporated in school curricula, while different strategies
should be designed to distribute such information to children
who cannot be reached through the school system;
(f) HIV/AIDS data collected by States, and by programmes
and agencies of the United Nations system, should reflect
the Convention's definition of a child (human beings under
18 years of age). Data on HIV/AIDS should be disaggregated
by age and gender and reflect the situation of children
living in different circumstances and of children in need
of special protection. Such data should inform the design
of programmes and policies targeted to address the needs
of different groups of children;
(g) More information should be collected and disseminated
on best practices, in particular on community based approaches
to HIV/AIDS which have positive outcomes;
(h) More research should be carried out on mother to child
transmission, and in particular on the risks of and alternatives
to breastfeeding;
(i) Information designed to raise awareness about the
epidemic should avoid dramatizing HIV/AIDS in ways that
can lead to further stigmatization for those affected
by the epidemic;
(j) States should review existing laws or enact new legislation
to implement fully article 2 of the Convention on the
Rights of the Child, in particular to prohibit expressly
discrimination based on real or perceived HIV status and
to prohibit mandatory testing;
(k) Urgent attention should be given to the ways in which
gender based discrimination places girls at higher risk
in relation to HIV/AIDS. Girls should be specifically
targeted for access to services, information and participation
in HIV/AIDS-related programmes, while the gender based
roles predominant in each situation should be carefully
considered when planning strategies for specific communities.
States should also review existing laws or enact new legislation
to guarantee inheritance rights and security of tenure
for children irrespective of their gender;
(l) Prevention and care strategies designed to deal with
the epidemic should focus on children in need of special
protection, including those living in institutions (whether
social welfare ones or detention centres), those living
or working in the streets, those suffering from sexual
or other types of exploitation, those suffering from sexual
or other forms of abuse and neglect, those involved in
armed conflict, etc. States should, in particular, review
existing laws or enact new legislation to protect children
against sexual exploitation and abuse and to ensure rehabilitation
of victims and the prosecution of perpetrators. Particular
attention should also be given to discrimination based
on sexual orientation, as homosexual boys and girls often
face acute discrimination while being a particularly vulnerable
group in the context of HIV/AIDS;
(m) HIV/AIDS care should be defined broadly and inclusively
to cover not only the provision of medical treatment,
but also of psychological attention and social reintegration,
as well as protection and support, including of a legal
nature;
(n) Barriers to the provision of youth friendly health
services should be identified and removed. States should
review existing laws or enact new legislation to regulate
the minimum age for access to health counselling, care
and welfare benefits. The formulation of comprehensive
adolescent reproductive health policies should be based
on the right of children to have access to information
and services, including those designed to prevent sexually
transmitted diseases or teenage pregnancy;
(o) States should review existing laws or enact new legislation
to recognize the specific rights of the child to privacy
and confidentiality with respect to HIV/AIDS, including
the need for the media to respect these rights while contributing
to the dissemination of information on HIV/AIDS;
(p) States, programmes and agencies of the United Nations
system, and NGOs should explore the possibilities for
new partnerships which could bring together organizations
that deal with human rights, children centred ones and
AIDS focused ones to look together for ways to respond
to the epidemic and to work together in reporting to the
Committee on the Rights of the Child.
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