With its adoption of the Convention on the Rights of the Child, the U.N. General Assembly went beyond the protection of children to an emphasis on the child’s right to human dignity.
In response to reports of the starvation, exploitation, and abuse of children throughout the world, the United Nations designated 1979 as the International Year of the Child
Drafting of the Convention on the Rights of the Child was assigned to a working group set up by the U.N. Commission on Human Rights. From 1979 to 1988, drafting took place during a one-week period each year, just prior to the annual sessions of the commission. In 1988, additional drafting weeks were given to the working group to facilitate completion of the convention and its adoption by the General Assembly in 1989, the thirtieth anniversary of the Declaration of the Rights of the Child and the tenth anniversary of the IYC.
The working group’s deliberations were based on a text presented to the Commission on Human Rights by the Polish government, which had sponsored the convention. This text contained twenty articles protecting substantive rights. During the drafting process, these articles were revised and expanded, and many new articles were created relating to additional rights. The working group was chaired by Adam Łopatka of Poland.
World interest in the Convention on the Rights of the Child, which originally had been far from enthusiastic, began to gain momentum in 1983. That year, a group of about thirty nongovernmental organizations (NGOs) established the Informal Ad Hoc NGO Group on the Drafting of the Convention on the Rights of the Child
When the preliminary draft of the Convention on the Rights of the Child was completed at the end of the first two-week session of the working group in 1988, the substantive portion had been expanded from the twenty articles of the original Polish model convention to a treaty containing forty-one substantive, rights-protecting articles. The implementation portion of the treaty had also been expanded from the Polish model. The implementation mechanism of the convention’s preliminary draft made provisions for the establishment of a ten-member Committee on the Rights of the Child. Under the provisions, countries that ratified the convention, known as States Parties, would be bound legally to uphold the standards of the convention and would be required to submit regular reports to the committee covering their progress in implementing the rights protected by the convention. In evaluating States Parties’ reports, the committee could use information from many outside sources, including NGOs.
Members of the working group reconvened toward the end of 1988 for a second two-week session devoted to what is known as a “second reading.” During this process, the preliminary draft text was subjected to a legal and linguistic review and reevaluation. To aid in their deliberations, the drafters had a number of working documents. Among these were a “technical review” provided by the U.N. Center for Human Rights and Independent Commentary: United Nations Convention on the Rights of the Child (1988), a collection of essays by legal scholars pointing out weaknesses in the convention. This collection was published by an NGO independent of the United Nations.
Most of the preliminary draft text, including the implementation mechanism, was adopted with only minor revisions. For example, based on the recommendations of the technical review, the wording of the convention was revised carefully in order to make the text gender-neutral. There were, however, a number of articles that provoked heated debate during the reviewing process. Chairman Łopatka assigned these articles to special small drafting parties whose task it was to work out the disagreements. Because all articles of the convention were adopted on the basis of consensus, which connotes an absence of disapproval rather than active support, if even one government strongly opposed an article, it could not be adopted by the working group.
Typical of articles that were contentious were Article 14, on freedom of religion; Article 20, on foster care; and Article 21, on adoption. All three of these articles were opposed by Muslim delegations on the grounds that they conflicted with Islamic law. The article on freedom of religion was especially difficult to draft, because under Islamic law there can be no religious freedom before adulthood. Conversely, in the Buddhist tradition, a child as young as three or four years of age may choose to become a monk. Under threat of deletion of the article from the convention, the working group grudgingly agreed on the article’s final text, which removed the right of a child to choose his or her religion.
Deliberations over the articles on foster care and adoption were brought to a satisfactory conclusion by a small drafting party headed by Ahmed Fathalla of the Egyptian delegation. The disagreements were settled by the inclusion in Article 20 of a reference to the “kafalah of Islamic law” as a substitute for adoption, which is prohibited in Islamic countries. In simple terms, kafalah is a process whereby a family assumes legal responsibility for a child but the child is barred from taking that family’s name and may not inherit from the family.
Undoubtedly the most heated debates during the second reading were those over paragraph 2 of Article 38, which sets the minimum age for participation in armed combat. A majority of government delegations supported the Swedish proposal to establish the age at eighteen, instead of the age of fifteen contained in the 1949 Geneva Conventions
The second reading concluded with the reordering and renumbering of the final text of the convention, with all of its fifty-four articles having been reviewed carefully and adopted by the working group. The convention then went to the plenary of the Commission on Human Rights, where it was adopted without debate. After further review by the U.N. Economic and Social Council and the Third Committee of the General Assembly, the convention was adopted by the General Assembly of the United Nations on November 20, 1989.
The final text of the Convention on the Rights of the Child is exceptional for many reasons. First, it is the most comprehensive of all the U.N. human rights treaties in that it contains the full range of human rights envisioned in the 1948 Universal Declaration of Human Rights.
Most important, however, is that the Convention on the Rights of the Child completely alters previously accepted concepts of the child. All earlier international declarations and treaties dealing with children focused entirely on the child’s need for protection. In blatant disregard of older standards, the Convention on the Rights of the Child guarantees the child’s right to human dignity, which includes recognition of the standard of the child’s “best interests,” the child’s “evolving capacities,” and the child’s rights of “individual personality,” such as freedoms of religion, speech, association, and assembly and the right to privacy. These rights for children are not just some new dream for the future. They are rights that have already received the stamp of approval from all member states of the United Nations as the minimum set of rights that a government must guarantee to children.
Even the most ardent backers of the Convention on the Rights of the Child could not have predicted the enthusiasm with which it would be embraced by the entire world community. At the signing ceremony on January 26, 1990, representatives of sixty countries brought with them the credentials they needed to sign the convention, a record for any human rights treaty. Moreover, whereas several years are usually needed for a human rights treaty to acquire the necessary ratifications to go into force, the Convention on the Rights of the Child went into force on September 2, 1990, a little more than six months after the convention was opened for signature. It is probably safe to say that none of those involved in the planning of the World Summit on Children,
The momentum begun by the signing ceremony did not diminish. By December 1, 1991, 102 countries had ratified the Convention on the Rights of the Child; this number had risen to 192 by 2006. Enthusiasm for the convention was not confined to States Parties. Concerned that their governments’ ratification of the convention might be merely pro forma, NGOs in many countries formed coalitions to act as watchdogs to ensure government compliance with the convention.
In Geneva, the NGO Group that so successfully negotiated with government delegations during the drafting of the Convention on the Rights of the Child reorganized under the new name of NGO Group for the Convention on the Rights of the Child. In its new form, the group provides a conduit for information between national NGOs and the Committee on the Rights of the Child.
The ten members of the Committee on the Rights of the Child, who act in personal capacities and not as government representatives, were elected in February of 1991. They held their first meetings from September 30 to October 18, 1991, and drafted their rules of procedure and their guidelines for the submission of reports by States Parties. The committee’s rules of procedure generously interpret Article 45 of the convention, allowing for the broadest possible input of information from sources other than the States Parties’ reports. This procedure helps to ensure the honesty of those reports.
The full meaning of the Convention on the Rights of the Child and its long-term impacts on children’s lives will continue to evolve as the committee applies the convention’s standards to the reports from States Parties. Over time, the various articles of the convention, like those of any constitution, will be interpreted and reinterpreted in view of changing world circumstances. The convention’s standards are sufficiently clear, however, that it is unlikely that any government can ignore the rights of the children within its borders without facing censure from the world community.
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Boulding, Elise. Children’s Rights and the Wheel of Life. New Brunswick, N.J.: Transaction, 1979. Addresses the topic of children as active contributors to society and compares children’s rights, responsibilities, and opportunities to those of the elderly. Includes some discussion of the Declaration of the Rights of the Child. -
Cohen, Cynthia Price. “Relationships Between the Child, the Family, and the State: The United Nations Convention on the Rights of the Child.” In Perspectives on the Family, edited by Michael D. Bayles, Robert Moffat, and Joseph Grcic. Lewiston, N.Y.: Edwin Mellen Press, 1990. Examines the way in which the convention addresses the relationships among the child, the family, and the state. Focuses on analysis of the interplay between the child’s rights as an individual and the right to be brought up in a nurturing family environment. -
_______. “The Role of Non-governmental Organizations in the Drafting of the Convention on the Rights of the Child.” Human Rights Quarterly 12 (February, 1990): 137-147. Describes the background of the Informal Ad Hoc NGO Group on the Drafting of the Convention on the Rights of the Child as well as the group’s tactics, its interactions with government delegations, and possible explanations for the success of its initiatives. Many articles of the convention exist only because of this group’s efforts. -
_______, ed. Independent Commentary: United Nations Convention on the Rights of the Child. New York: Defense for Children International-USA, 1988. Collection of essays by international legal scholars addresses various aspects of the convention. Among the issues discussed are the discrimination and juvenile justice provisions and the rights of indigenous peoples. Points out weaknesses in the text of the first draft of the convention. -
Cohen, Cynthia Price, and Howard A. Davidson, eds. Children’s Rights in America: U.N. Convention on the Rights of the Child Compared with United States Law. Chicago: American Bar Association Center on Children and the Law, 1990. Collection of essays is divided into two sections: The first discusses general considerations or themes of the final draft of the Convention on the Rights of the Child (such as the “child’s best interests” and the “child’s evolving capacities”) and the second looks at clusters of articles from the convention and compares them with a general view of existing U.S. law concerning related rights. -
Cohen, Cynthia Price, and Per Miljeteig-Olssen. “Status Report: United Nations Convention on the Rights of the Child.’’ New York Law School Journal of Human Rights (1991): 367. Examines the status of the convention after it was adopted by the U.N. General Assembly. Describes the ratification process and the election of members of the Committee on the Rights of the Child. -
Fottrell, Deirdre, ed. Revisiting Children’s Rights: Ten Years of the U.N. Convention on the Rights of the Child. Boston: Kluwer Law International, 2000. Collection of essays assesses the progress made in the first decade after adoption of the convention and examines the state of debates concerning children’s rights. -
Greaney, Vincent, ed. Children: Needs and Rights. New York: Irvington, 1985. Collection of essays by children’s rights advocates presents a multidisciplinary perspective. Includes chapters on development of children’s rights in various countries. The chapter on “The United Nations and Children’s Rights” contains the text of the Declaration of the Rights of the Child. -
Mower, A. Glenn, Jr. The Convention on the Rights of the Child: International Law Support for Children. Westport, Conn.: Greenwood Press, 1997. Presents an overview of the origins and significance of the convention and examines the procedures for its implementation.
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