МРНТИ 10.87.51 МРНТИ 10.87.51
M. Tastanova
KAZGYUU University, Astana, Kazakhstan (E-mail: [email protected])
Factors and difficulties impeding implementation of the rights of the child
Abstract. In this article, the author highlights the legal basis for the rights of the child. The Convention on the Rights of the Child states that all children are equal. This guiding principle permeates every right set forth in the Con- vention. Non-discrimination means that all children can equally exercise their rights the right to survival, develop- ment, participation and protection without exception and on an equal footing. The author recognizes that, at present, the concept of the rights of the child is not more remote. For decades it was quite normal and acceptable to talk about protecting children. It was the result of the laws, policies and attitudes of the state that perceived the child as a weak, immature and incompetent person on the road to adulthood. On such a path, the child needs protection and guidance for adults, and society must feel and act on the basis of solidarity, compassion and reason. The article states that, in- ternational legal protection of the child is not a self-fulfilling prophecy. There is no real life outside the framework of a state and its laws. The eventual goal for international legal protection is the establishment of national mechanisms for the protection of the rights of the child.
Keywords. Сhildren, participation, child protection, rights of the child, Convention, Comities.
Introduction. International legal protection of the child is not a self-fulfilling prophecy. There is no real life outside the framework of a state and its laws. The eventual goal for international legal protection is the establishment of national mechanisms for the protection of the rights of the child [1].
Although the rights of the child are recognized by international law and their implementation has been guaranteed through ratification of international treaties, development of the rights is still necessary. This development should be understood in a broader sense, including all activities both at the level of international law and practice and national legislation and practice. These activities should be aimed at promotion of the concept of the rights of the child, acceptance of the obligation by states to protect and respect those rights, and the establishment of conditions for their imple- mentation [2].
The challenge for international law in the field of the rights of the child lies in the implemen- tation of these rights. In other words, the task is to design a system for protection, which would ensure that the rights of the child would be exercised as much as possible. But implementation of the CRC and the OPs and the challenges are closely linked to the social, economic and political realities, internationally and nationally. The lives of millions of children are affected by poverty, marginalization, exclusion and exploitation. The gap between rich and poor is not closing, being at risk of even deepening thanks to the global economic crisis. To avoid a gap in dealing with impact of the crisis on the most vulnerable children across international organizations and Gov- ernments, a synergy is needed [3].
Tasks. Child rights also need to be implemented in situations hampering their peace and security. Armed conflicts, terrorism and crime, including organized crime, seriously endanger lives of millions of children every year. The poorest countries are more likely to be affected by such treats to peace and prosperity. The changing character of armed conflicts and its prevailing effect on civilians have already taken the toll of extreme involvement of children, including as child soldiers.17 Internal conflicts, including political instability and crisis prevail in scope over international conflicts. Political instability, frequent change of Governments and personal change within Government cabinets have too often proved as hampering efforts to implement rights of the child [4].
Goals. Natural disaster, environmental degradation or poor infrastructures are further factors of difficulties that States Parties to the CRC have when implementing the CRC. Prevention, early warning and fast response are critical to the safety and survival of the child in such circumstances.
Yet, those factors again aggravate in poverty - like situations. Urban and rural degradation, pollu- tion and global warming already have negative effects on lives of children and there is a growing concern how to protect their rights in such extreme situations [5].
The last but not least is related to social factors. Namely, millions of children are still stigma- tized for being young, girls, poor, ethnically different, indigenous, disabled, ill or for other rea- sons. Prejudice leads to violence and violence perpetuates further prejudice. In spite of numerous efforts around the world, children are much too often perceived as offenders rather than victims [6]. A lot has been done to make child rights reality for every child. Still, there is a long road to go before child rights can fully affect everyday lives of children. The CRC is a treaty with a broad scope, encompassing all aspects of life of the child, in different parts of the World. That makes this international treaty as well as other child rights related international law even more difficult to implement. It is difficult to make a global assessment of the impact of the CRC and even more so to provide a set of solutions that would work everywhere. However, it is possible to identify two sets challenges; one related to the general measures of implementation of the rights of the child and the other applying to particular rights of the child [7].
Method. The article generally based on the doctrinal method of research. Analysis generally covers international scholarly articles and international law of children rights. To widen the per- spective of the article authors made a comparative analysis, logical analysis, analysis describing the children rights.
It is a task for every country to identify areas of the rights of the child that need priority at- tention, as well as to design mechanisms to improve implementation of rights. Of course, each country has its political, economic and social realities which determine factors and difficulties in implementation of the rights of the child. Successful policy in the area of the rights of the child will depend on capacities to recognize problems and offer solutions. Therefore, knowledge and dissemination of information in child rights as well as capacity of those who are most responsible for their implementation are essential. Only with knowledge, we can find answers to the initial questions and provide solutions [8].
Results. As already indicated, the Convention on the Rights of the Child (CRC), was adopted under the auspices of the UN in 1989. Its adoption is the result of a long process that started over a half century before the official proposal was submitted in 1979. A coincidence of essentially two developments marked that process. On the one hand, the general attitude toward the child and childhood had progressed. On the other hand, international human rights law had gradually been consolidated [9].The CRC is an important achievement in the evolution and strengthening of international law on children. This document is a comprehensive one, since all human rights are acknowledged -- civil, political, and economic, as well as social and cultural. It is a novelty in international human rights treaties. Because of its broad approach, the CRC is the most import- ant document on the rights of the child. Even when, in cases of violations, protection is sought through other treaties, such as the ICCPR or the European Convention, the ICCRP’s Human
Rights Committee or the European Court refer to the CRC in their opinions and decisions. Stated simply, the CRC has become the highest authority in international law on children.
In many ways the CRC is a unique international human rights treaty, in that for the first time in international law, it contains a universally-accepted definition of the child. It is, in any event, the most accepted international treaty. Currently, 193 States have ratified it; the USA and Somalia have signed it. It is the first international document containing all human rights. It is also an in- novative document, since it declares some new and challenging human rights, such as the right of the child to express his or her views and the right of a child victim of any form of exploitation to physical and psychological treatment and integration. The CRC is the first international document that acknowledges the role of the civil society in the protection and exercise of the rights of the child. This document serves as a basic tool for the promotion and protection of the child, both on the international and national level [10]. The CRC has a preamble and three parts. The preamble recalls basic human rights principles established through the UN and other organizations. It reaf- firms the necessity for legal and other protection of the rights of the child, and recognizes the vital role of international cooperation.
Conclusion. Part I of the CRC contains a catalogue of rights and several provisions that require state parties to undertake all measures for their implementation, as well as to respect the highest standards in this area, both on the international and national levels. Specific rights of the child are not listed in any particular order, thus reflecting the idea of the indivisibility of rights. No right of the child is an objective per se, and none can be exercised without other rights being respected.
Part II deals with the CRC’s monitoring body, the Committee on the Rights of the Child. Pro- visions in Part III regulate the technical questions of ratification, entry into force, reservations, amendments, and other similar matters. It can hardly be concluded that the Convention on the Rights of the Child is based on a matured global awareness - on a universal moral standard. Exist- ing norms on the rights of the child oblige states to implement the provisions of this international treaty, often contrary to the customs and morals of the society. The overall objective of the Con- vention is to enable respect for the dignity of every child and to make all child rights reality for each and every child. In view of this, it is fantastic and curious at the same time that 193 states have ratified the Convention. The question is whether the parties to the Convention are actually prepared to ensure the exercise of children’s rights, or instead have not fully understood that a principal task is to prevent discrimination toward the child as a human being and a member of a group of persons still “in the developmental age.” Despite criticism in relation to the applicability of the CRC, international law on children has benefited significantly as a result of the adoption of this document. Together with relevant provisions on international human rights law, the CRC represents a step toward the finalization of the standard-setting phase. However, a catalogue of the rights of the child can never be complete, as there are always new spheres of life that need legal attention. As for existing legal standards on the rights of the child, some need to be more fully developed, particularly if norms are too flexible or standards too low. As a consequence, ten years after the CRC, the two Optional Protocols were adopted, providing a better and more specific legal framework for the protection of children in relation to armed conflicts and sale of children, child prostitution and child pornography [11].
References
1. Pinhero, Paulo Sergio World report on Violence Against Children // United Nations, Secre- tary’s general Study on Violence against Children- 2006.
2. Re Borthwick The Child Adoption Committee, which produced three Reports Ch № 395, per Harman J -2010.
3. W Macpherson, Law Relating to Infants , Shelford //The Law of Marriage and Divorce – 1841. - p. 282
4. M. Albery The Inheritance (Family Provision) -Act 1938 (1950).
5. Official Report (HL) -16 June 2007, -vol. 275, -col. 205 (Lord Gardiner LC) 6. Oughton N. Tyler’s Family Provision 3rd ed., -1997.-p. 23
7. J Jackson, The Formation and Annulment of Marriage 2nd ed., -1969. -p. 144–156
8. Egerton, Legal Aid , RI Morgan, ‘The Introduction of Civil Legal Aid in England and Wales 1994 Twentieth Century British History // Vol. 5, p.38, 52
9. Hutchins and A Harrison, A History of Factory Legislation -3rd ed., 2010.
10. Albery, The Inheritance (Family Provision) -Act 1938 (1950). -p. 67
11. Second Report on Family Property// Family Provision on Death (Law Com. No. 61, 1974) -Appendix 1, -p. 80–148.
М.М. Тастанова
ҚазГЮУ Университеті, Астана, Казахстан
Бала құқықтарын жүзеге асырудың кедергі келтіретін кейбір факторлар мен қиындықтар
Аннотация. Аталған мақалада автор бала құқықтық негіздері қарастарылған. Бала құқықтары туралы Конвенцияда бекітіледі, барлық балалар тең. Бұл басшылық принципі Конвенцияның әрбір құқықтық бапта баяндалған. Кемсітушілікке жол бермеу дегенді білдіреді барлық балалар тең дәрежеде өз құқықтарын жүзеге асыруға құқығы өмір сүру, дамыту және қорғауды алып тастау және тең. Автор Мемлекеттер барлық қажетті шараларды қабылдайды балалрды қорғауды қамтамасыз ету, кемсітушіліктің барлық нысандарын немесе жазаны негізінде мәртебесінің, қызметінің, көзқарасының, баланың ата-анасының, заңды қамқоршылары болып табылады. Түпкі мақсаты халықаралық құқықтық қорғауды құру болып бала құқықтарын қорғаудың ұлттық тетіктерін құру болып табылады.
Түйін сөздер. Балалар, қатысу, балаларды қорғау, бала құқықтары, Конвенция, Комитет.
М.М. Тастанова
Университет КазГЮУ, Астана, Казахстан (E-mail: [email protected])
О некоторых факторах и трудностях, препятствующих осуществлению прав ребенка
Аннотация. В данной статье автором освещаются правовые основы прав ребенка. Конвенция о правах ребенка утверждает, что все дети равны. Этот руководящий принцип пронизывает каждое право, изложенное в Конвенции. Недопущение дискриминации означает, что все дети могут в равной мере осуществлять свои права право на выживание, развитие, участие и защиту без исключения и на равной основе. Автор признает что, в настоящее время понятие прав ребенка не является более отдаленным, чужим и угрожающим. На протяжении десятилетий было вполне нормально и приемлемо говорить о защите детей. Это было результатом законов, политики и установок государства, которые воспринимали ребенка как слабого, незрелого и недееспособного человека на пути к взрослой жизни. На таком пути ребенку нужна защита и руководство для взрослых, и общество должно чувствовать и действовать на основе солидарности, сострадания и разума. В статье указывается, что в то время, когда во всем мире постепенно формировалось понятие «прав человека», работа в отношении детей проводилась менее интенсивно, понятие «ребенок» все еще не было отделено от крайне размытого и общего понятия «человек». Конечной целью международной правовой защиты является создание национальных механизмов защиты прав ребенка.
Ключевые слова. Дети, участие, защита детей, права ребенка, Конвенция, Комитет.
Сведения об авторах:
Тастанова М.М. – Бала құқықтарын жүзеге асырудың кедергі келтіретін кейбір факторлар мен қиындықтар, Заң ғылымдарының Магистірі, аға оқутышысы, Қазақ Гуманитарлық Заң Университеті ,Коргалжын шоссе 8, Астана, Қазақстан.
M.M. Tastanova – Master of Law, senior teacher of department of International law , KAZGYUU University, Korgangin avenue 8 str., Astana, Kazakhstan.
Салыстырмалы құқықтану Сравнительное правоведение
Comparative law
МРНТИ 10.87.91