Children, International Protection: Evarist Baimu
Children, International Protection: Evarist Baimu
International Protection
Evarist Baimu
Subject(s):
Children, rights
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
A. Introduction: Objective of International Protection of Children
1 According to the → United Nations Children’s Fund (UNICEF), nearly eight million children died in
2010 before reaching the age of five, largely due to preventable causes such as pneumonia,
diarrhoea, and birth complications (State of the World’s Children Report 2012 14). Millions of
others are engaged in the worst forms of child labour, including active participation in hostilities
(→ Children and Armed Conflict). These, and other children in difficult situations, need protection.
In this contribution the term ‘children’ refers to persons below the age of 18. Children need
protection because their physical and mental immaturity makes them vulnerable. As noted in para.
9 Preamble to the Convention on the Rights of the Child (‘CRC’) ‘the child, by reason of his physical
and mental immaturity, needs special safeguards and care, including appropriate legal protection,
before as well as after birth’. Children are afforded protection through the articulation and
enforcement of international law norms developed at global and regional levels.
2 A growing corpus of international law protecting children exists with roots in such diverse areas
as international → human rights law, → international criminal law, international refugee law
(→ Refugees), international humanitarian law (→ Humanitarian Law, International), international
labour law (→ Labour Law, International), and international environmental law. While all → sources
of international law are relevant, treaty-based and customary international law sources of
international law norms protecting children attract the most attention.
5 The CRC and other human rights treaties articulate various children’s rights, including rights
linked to their civil status such as the right to a name, the right to acquire a → nationality, the right
to preserve one’s identity, and the right not to be separated from the parents against a child’s will
(→ Family, Right to, International Protection). The treaties also enshrine generic rights such as the
freedom of expression, thought, conscience, and religion, freedom of association, and freedom of
peaceful assembly. Other generic rights include the right to privacy, the right to access to
information, and the right to freedom from torture.
6 There is a panoply of economic, social, and cultural rights recognized under international law
and articulated in the CRC and other human rights treaties. These include the right to education
(→ Education, Right to, International Protection), the right to enjoy the highest attainable standard
of health and facilities for the treatment of illness and rehabilitation of health (→ Health, Right to,
International Protection), the right to benefit from social security (→ Social Security, Right to,
International Protection), and the right to a standard of living adequate for a child’s physical,
mental, spiritual, moral, and social development (→ Standard of Living, Promotion of). Under this
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
rubric one may also add various rights for children in special circumstances including children with
disabilities (→ Disabled People, Non-Discrimination of), orphans and vulnerable children, refugee
children, as well as minority and indigenous children (→ Indigenous Peoples; → Minorities,
International Protection). With respect to the implementation of these rights, States Parties to the
CRC are only required to undertake such measures progressively, to the maximum extent of their
available resources and, where needed, within the framework of international cooperation.
7 The implementation of treaty-based obligations to protect children requires States Parties to take
all appropriate legislative, policy, administrative, and other measures for the implementation of the
rights contained therein. This includes ensuring, by all appropriate means, that the CRC provisions
are given legal effect in the States Parties’ domestic legal systems. In giving effect to the obligations
under the CRC, the Committee on the Right of the Child (‘CRC Committee’) has indicated that four
general principles—non-discrimination (Art. 2 CRC), the best interests of the child (Art. 3 CRC), the
right to life, survival, and development (Art. 6 CRC; → Life, Right to, International Protection;
→ Development, Right to, International Protection), and respect for the views of the child (Art. 12
CRC)—have to be reflected in legislation and customary law as well as actions taken by social
welfare institutions, courts of law, and administrative authorities.
10 International legal instruments tend to combine the legal protection of the child with efforts to
promote and preserve family life, on the assumption that children’s protection can be accomplished
in the context of a family as a unit of society. Yet, it is also not uncommon for violations of
children’s rights, including child abuse and neglect, corporal punishment, child marriage, and
harmful practices such as female genital mutilation, to take place in the family setting. Handling this
double-sided role of the family in child protection is a continuing challenge in the efforts to ensure
international protection of children. Likewise while cyberspace offers children opportunities to
exercise their right to access information and express themselves, it also exposes such children to
violence including cyber-bullying and cyber-grooming.
11 Related to the protection of children in a family setting is the question of → child abduction
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
across borders. This issue has public as well as → private international law dimensions. On the
public international law front, the CRC requires States Parties to take measures to combat the illicit
transfer and non-return of children abroad. On the private international law front, there are treaties
which seek to protect children from, among other things, abduction and trafficking, and which also
enforce child support obligations and child custody. One of the key global instruments in this
respect is the Convention on the Civil Aspects of International Child Abduction of 1980. This
convention has two aims: first, to secure the prompt return of children wrongfully removed to or
retained in any State Party; and second, to ensure that rights of custody and of access under the
law of one State Party are effectively respected in the other States Parties.
12 Equivalent treaties exist at regional level, for example the European Convention on Recognition
and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of
Children of 1980. In the Americas, international treaties protecting children have been adopted
under the auspices of the → Organization of American States (OAS). These include the 1984 Inter-
American Convention on Conflict of Laws Concerning the Adoption of Minors, the 1989 Inter-
American Convention on Support Obligations, the 1989 Inter-American Convention on the
International Return of Children and the 1994 Inter-American Convention on International Traffic in
Minors.
14 Most of international humanitarian law norms apply to children by virtue of the latter’s status as
members of a protected group such as civilians or non-combatants (→ Civilian Population in
Armed Conflict). The four → Geneva Conventions I–IV (1949) and the Additional Protocols
(→ Geneva Conventions Additional Protocol I [1977]; → Geneva Conventions Additional Protocol
II [1977]) impose specific obligations on belligerents aimed at protecting children. The Geneva
Convention relative to the Protection of Civilian Persons in Time of War, for example, requires
special treatment for children with regards to material for relief, distribution of food, and medical
care, as well as family reunification. The four Geneva Conventions have received almost universal
ratification. Additionally, it is significant that elements of the four Geneva Conventions, for example
rules in Common Art. 3 Geneva Conventions, are widely regarded as having the status of
customary international law, which means they are binding even on States that have not ratified the
treaties, unless these States have persistently objected to such norms (→ Persistent Objector).
15 The Statute of the → International Criminal Court (ICC) (‘Rome Statute’; [adopted 17 July 1998,
entered into force 1 July 2002] 2187 UNTS 90), which is widely regarded as reflecting the existing
customary international law on international crimes, lists the following as crimes under international
law: → genocide, → crimes against humanity, → war crimes, and the crime of → aggression.
Children are protected by virtue of being a member of a national, ethnic, racial, or religious group in
the case of genocide; civilian population in the case of crimes against humanity; or a person
protected under the provisions of the applicable Geneva Convention or Additional Protocol in the
case of war crimes. The criminalization of these egregious violations of human rights affords
additional protection to all individuals and groups including children.
16 Children are also expressly protected under the crime of genocide, which prohibits forcible
transfer of children of a national, ethnic, racial, or religious group to another group committed with
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
the intent to destroy in whole or in part the former group. The Rome Statute also criminalizes
conscripting or enlisting children under the age of 15 into armed forces or groups or using them to
participate actively in hostilities. In Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and
Santigie Borbor Kanu (‘Brima Case’) the Appeals Chamber of the Special Court for Sierra Leone
(→ Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]) affirmed that
conscripting, enlisting, and using children under 15 in hostilities is a war crime under customary
international law. In the same case, the chamber also indicated that forced marriage of girls as part
of a widespread and systematic attack against the civilian population, constitutes an ‘other
inhumane act’ (at para. 202) qualifying as a crime against humanity.
18 However, the CRC falls short in some respects of its quest to protect child refugees. Its
definition of the refugee child is still too narrow as it is based on the 1951 UN Refugee Convention.
The Convention defines a refugee as a person who is outside the country of his nationality and is
unable or unwilling to avail himself of the protection of that country due to well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social group,
or political opinion. This definition is restrictive as it is based on individually determined subjective
fear of persecution and ignores the group dimension, ie the possibility that individuals may flee their
country of origin for reasons other than individual persecution. In addition, the CRC is silent on the
need to protect internally displaced children and neither does it require States to provide asylum
(→ Asylum, Territorial) or the right of entry to children (→ Immigration).
19 The applicable regional instrument in Africa, the AU’s African Children’s Charter, goes some
way to address these limitations. First, it is to be applied in light of other regional instruments,
including Art. 1 (2) AU Convention Governing the Specific Aspects of Refugee Problems in Africa
([adopted 10 September 1969, entered into force 20 June 1974] 1001 UNTS 45), which in Art. 1 (2)
broadens the term ‘refugees’ to embrace persons—individuals or groups—compelled to seek
refuge from ‘external aggression, occupation, foreign domination, or events seriously disturbing
public order in either part or the whole of [the] country of origin’. Second, the African Children’s
Charter requires that internally displaced children whether through natural disaster, internal armed
conflicts, civil strife, or breakdown of economic and social order receive the same protection as
refugee children.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
harmful to the child’s health or physical, mental, spiritual, moral, or social development.
21 The protection against child labour is also afforded through ILO Conventions No 138 (Minimum
Age Convention [1973]) and No 182 (Worst Forms of Child Labour Convention [1999]) of the
→ International Labour Organization (ILO). Under Convention No 138 the minimum age for
employment must not be less than the age of completion of compulsory education, and in no event
less than 15 years with 14 years allowed under certain conditions. Convention No 182, on the other
hand, requires States Parties to prohibit and eliminate the worst forms of child labour including
trafficking, slavery, sexual exploitation, and hazardous work. Aspects of normative rules articulated
in Convention 182 and related to the protection of children from the worst forms of child labour are
now reflected in the → Equator Principles which have been voluntarily adopted, and are enforced,
by a growing number of financial institutions in their lending transactions.
24 Efforts to hold individuals accountable for international crimes were boosted with the entry into
force of the Rome Statute, which established the ICC. So far the ICC has opened investigations into
eight situations: the Central African Republic, Democratic Republic of the Congo (‘DRC’; → Congo,
Democratic Republic of the), Libya, Republic of Côte d'Ivoire, Republic of Kenya, Republic of Mali,
→ Sudan and Uganda. Of particular importance for child protection is ICC work in the situations in
Uganda and the DRC, both of which include investigations into international crimes perpetrated
against children.
25 On 8 July 2005, as amended 27 September 2005, the ICC’s Pre-Trial Chamber II issued, upon
request of the ICC Prosecutor, an arrest warrant for Joseph Kony, the leader of the Lord’s
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
Resistance Army, an armed group in northern Uganda, for forced enlistment of children and other
war crimes. Arrest warrants are also outstanding for other leaders of the Lord’s Resistance Army
(including Okot Odhiambo and Dominic Ongwen) for a similar set of crimes. On 14 March 2012, the
ICC convicted Thomas Lumbanga Dyilo for enlisting and conscripting children under the age of 15
into his armed group and using them to participate actively in hostilities in Ituri, in the DRC.
Following his conviction for war crimes, Lumbanga Dyilo was penalized with a 14 year jail term. ICC
trials of Germain Katanga and Bosco Ntaganda—which like wise involve allegations of war crimes
against children in DRC—are on-going. The ICC trials contribute to the international protection of
children by holding individuals responsible for crimes perpetrated against children and by
punishing them if convicted. It is expected that existence of a permanent international criminal
court is likely to deter the occurrence of these international crimes in the future.
27 For example, in Mubilanzila Mayeka and Kaniki Mitunga v Belgium (ECtHR) App 13178/03 the
ECtHR held that the arrest, two months of detention at a closed centre for adults, and subsequent
deportation of the then five-year old Kaniki Mitunga, an unaccompanied minor without legal
immigration status in Belgium, violated Art. 3 → European Convention for the Protection of Human
Rights and Fundamental Freedoms (1950) (‘ECHR’), which confers an absolute protection from
inhuman treatment. The ECtHR also held that by failing to facilitate the family’s reunification of Ms
Mitunga and her mother, Belgium violated Art. 8 ECHR, which protects everyone’s right to respect
for his family life.
29 After the discussion of the report with the State Party, the committee will, in a closed meeting,
agree on written concluding observations, which include suggestions and recommendations for
actions to be taken by the State Party being examined. On the basis of the experience gained from
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
considering State reports over years, the treaty bodies prepare general comments (→ General
Comments/Recommendations), the purpose of which is to provide clear guidance to States on
their international obligations under the respective treaty. As of 31 March 2013, the CRC Committee
had issued 15 general comments (<http://www2.ohchr.org/english/bodies/crc/comments.htm>).
31 There are other UN bodies and specialized agencies whose mandates include aspects of child
protection (→ United Nations, Specialized Agencies). These include the ILO, the United Nations
High Commissioner for Refugees (→ Refugees, United Nations High Commissioner for [UNHCR]),
the → United Nations Educational, Scientific and Cultural Organization (UNESCO), the Joint United
Nations Programme on HIV/AIDS and the United Nations Entity for Gender Equality and the
Empowerment of Women (‘UN Women’). The → International Committee of the Red Cross (ICRC)
has protection responsibilities in relation to children in armed conflict. At the regional level, the OAS
Member States have established the Inter-American Children Institute, whose objective is to
contribute to integral protection of children and improvement of children’s quality of life.
32 International NGOs and their national counterparts also play a key role in the protection of
children around the world. One of the most prominent international NGOs is Save the Children,
which operates through its 30 national organizations in more than 120 countries. Among other
things, Save the Children protects children in emergencies and conflicts, contributes in enhancing
access to quality education and healthcare for children, and helps to combat hunger and
malnutrition, in particular among young children and their mothers.
D. Conclusion
33 Despite increased acceptance of the internationalization of children’s protection, as
demonstrated by the near universal ratification of the CRC (193 States Parties), the situation of
many children around the world remains precarious. One reason for this is that complying with
obligations under children’s rights to education, health care, and social security, requires
resources that may not be available to States, particularly in the developing world (→ Developing
Countries) where the majority of children live. For the developed world, trends point to a growing
ageing population whose care in the coming decades—it is feared—may require the transfer of
resources from funds established for the protection of children, thus reducing resources available
to comply with applicableobligations under children’s economic, social, and cultural rights.
34 In addition, measures dealing with particular economic, social, and cultural challenges,
affecting adults and children alike, do not always focus on specific needs of children. Due to their
physical, social, emotional, and mental immaturity, children tend to be uniquely vulnerable and may
require tailored measures. An ever-increasing focus on the vulnerability of individual children as
well as specific groups of children—and concerted efforts to address those vulnerabilities—are
necessary. For example, given the predicted increase of climate change-induced incidences of
natural disasters, a proper response to the climate challenge should also entail measures that
specifically address the needs of children who are likely to be disproportionately affected by these
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
disasters owing to their vulnerability.
35 There are emerging issues relating to children’s protection for which the international
community of States seems adequately equipped with international instruments to respond to.
These include such issues as protecting children affected by HIV/AIDS, for which at least a nascent
normative framework exists. Yet, protecting children’s rights in these instances requires further
clarification of aspects of existing norms of international law.
36 At the same time, the emerging technological advances in various fields, including genetic
engineering, information and communication technologies, biotechnology, and nanotechnology
(see also → Cloning, International Regulation), are likely to spur new challenges that may expose
lacuna in the existing normative framework, and point to the need for further evolution and change
of the existing international norms protecting children. Furthermore, the growing attention paid to
the need for environmental protection is likely to lead to further development and elucidation of
such legal concepts as intergenerational rights and obligations.
Select Bibliography
S Singer The Protection of Children during Armed Conflict Situations (ICRC Geneva 1986).
EM Ressler N Boothby and DJ Steinbock Unaccompanied Children: Care and Protection in
Wars, Natural Disasters and Refugee Movements (OUP New York 1988).
B Simma and P Alston ‘The Sources of Human Rights Law: Custom, Jus cogens, and General
Principles’ (1988–89) 12 AustYBIL 82–108.
A Dyer ‘The Hague Convention on the Civil Aspects of International Child Abduction: Towards
Global Cooperation: Its Successes and Failures’ (1993) 1 International Journal of Children’s
Rights 273–92.
P Alston (ed) The Best Interest of the Child: Reconciling Culture and Human Rights
(Clarendon Oxford 1994).
G van Bueren The International Law on the Rights of the Child (Nijhoff Dordrecht 1995).
B van der Heijden and B Tahzib-Lie (eds) Reflections on the Universal Declaration of Human
Rights: A Fiftieth Anniversary Anthology (Nijhoff The Hague 1998).
PR Beaumont and PE McEleavy The Hague Convention on International Child Abduction
(OUP Oxford 1999).
F Viljoen ‘Africa’s Contribution to the Development of International Human Rights and
Humanitarian Law’ (2001) 1 AfrHumRtsLJ 18–39.
MDA Freeman (ed) Children’s Rights vols 1 and 2 (Ashgate Aldershot 2004).
PE Veerman ‘The Ageing of the UN Convention on the Rightsof the Child’ (2010) 18
International Journal of Children’s Rights 585–618.
B Stark ‘Transnational Surrogacy and International Human Rights Law’ (2011–12) 18
ILSAJIntl&CompL 369–86.
MA Drumbl Reimagining Child Soldiers in International Law and Policy (OUP Oxford 2012).
BD Mezmur ‘“Acting Like a Rich Bully”? Madonna, Mercy, Malawi, and International Children's
Rights Law in Adoption’ (2012) 20 International Journal of Children's Rights 24–56.
UNICEF State of the World's Children Report 2012: Children inan Urban World (UNICEF New
York 2012).
D You and D Anthony Generation 2025 and Beyond: The Critical Importance of
Understanding Demographic Trends for Children of the 21st Century (UNICEF Occasional
Papers No 1, November 2012).
Select Documents
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21
October 1986) 1520 UNTS 217 (Banjul Charter).
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018
African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into
force 29 November 1999) OAU Doc CAB/LEG/24.9/49 (1990).
COE ‘European Convention on Recognition and Enforcement of Decisions concerning
Custody of Children and on Restoration of Custody of Children’ (done 20 May 1980, entered
into force 1 September 1983) CETS No 105.
Convention on the Elimination of All Forms of Discrimination against Women (adopted 18
December 1979, entered into force 3 September 1981) 1249 UNTS 13.
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9
December 1948, entered into force 12 January 1951) 78 UNTS 277.
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2
September 1990) 1577 UNTS 3.
Geneva Declaration on the Rights of the Child (adopted 26 September 1924) (1924) 21
League of Nations Official Journal Spec Supp 43.
Hague Convention on the Civil Aspects of International Child Abduction (concluded 25
October 1980, entered into force 1 December 1983) 1343 UNTS 89.
Hague Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption (adopted 29 May 1993, entered into force 1 May 1995) 1870 UNTS 182.
ILO, ‘Convention No 138 concerning Minimum Age for Admission to Employment’ (adopted 26
June 1973, entered into force 19 June 1976) 1015 UNTS 297.
ILO, ‘Convention No 182 concerning the Prohibition and Immediate Action for the Elimination
of the Worst Forms of Child Labour’ (adopted 17 June 1999, entered into force 19 November
2000) 2133 UNTS 161.
Inter-American Convention on Conflict of Laws concerning the Adoption of Minors (adopted
24 May 1984, entered into force 26 May 1988) OAS Treaty Series No 62 (1985).
Inter-American Convention on International Traffic in Minors (adopted 18 March 1994,
entered into force 15 August 1997) OAS Treaty Series No 79 (1994).
Inter-American Convention on Support Obligations (adopted 15 July 1989, entered into force
6 March 1996) OAS Treaty Series No 71 (1989).
Inter-American Convention on the International Return of Children (adopted 15 July 1989,
entered into force 4 November 1994) OAS Treaty Series No 70 (1989).
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children
in Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS
222.
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography (adopted 25 May 2000, entered into force 18 January
2002) 2171 UNTS 247.
Optional Protocol to the Convention on the Rights of the Child on a Communications
Procedure (opened for signature on 28 February 2012, not yet in force) annexed to UN Doc
A/RES/66/138.
Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (Appeals
Chamber Judgment) SCSL–2004–16–A (22 February 2008).
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018