After 20 years of implementation of the Convention on the Rights of the Child (CRC), it is increasingly clear that states bear the responsibility to promote, guarantee, respect, and fulfill the realization of children’s rights by all members of the national and international communities. An initial emphasis on legal reforms to adapt national law to the CRC—absolutely necessary but not sufficient—needs to give space to changes in other important areas of public action: economic policy and financing; social policy and administration; and public participation, including that of children. Enforcement and justiciability of rights need to be addressed today to face questions about public policy, systems, and institutions in the long term. The evolution of social policies in Latin America and the Caribbean, from neoliberal policies to systems of social protection, illustrates that only a comprehensive and equity-based view of social and economic policy, underpinned by the four principles of children’s rights (nondiscrimination, best interests of the child, survival and development, and the right to be heard), will satisfy the requirements for implementation of the CRC. With the Convention on the Rights of the Child (CRC) adopted in 1989, the concept of children took a radical turn: girls and boys ceased to be regarded as objects of protection and became recognized as subjects of rights. This clear-cut distinction has huge implicationson the way states conduct business (as it has for families, communities, and children). It is increasingly clear that states bear the responsibility to promote, guarantee,
respect, and fulfill the realization of children’s rights by all members of national and international communities.
In 20 years of the CRC’s existence, along with the other eight human rights treaties, much has happened in terms of state responsibility, both influenced by and influencing human rights implementation. This article reviews changes in the public sphere brought about by the introduction of a new human rights paradigm for public policy—that is, children have rights. It makes the case that an initial emphasis on legal and normative reforms
to adapt national law to the CRC needs to give space to changes in other important areas of public action, such as economic policy and financing; social policy and administration; and public participation, including that of children, leading to the enforcement of their rights. The article reviews the evolution of social policies in the case of Latin America and the Caribbean, ranging from the liberal and neoliberal policies (neoconservative, from another point of view) to systems of social protection, to conclude that only a systemic view of social policy, underpinned by the four principles of children’s rights (nondiscrimination, best interests of the child, survival and development, and the right to be heard), will satisfy the requirements of implementation of the CRC. It also reviews the work of the United Nation (UN) Committee on the Rights of the Child and makes some general recommendations for review given the new challenges.
The Law
Following an unprecedented rush to ratification, covering all countries except two, the first two decades of the CRC’s life have been greatly devoted to finding the juridical and normative expressions required to actually implement its provisions. Legislative activity was most intense in the 1990s to try to define within the legal frameworks of most member states what was meant by “children’s rights.” Old legislation was reviewed and new laws were passed in most cases dealing with Article 3 (best interests of the child) and Article 12 (right of the child to be heard), the new pillars of this children’srights approach. To abandon the welfare paradigm, many countries undertook reforms of their penal codes or the so-called “minors” codes
designed in the nineteenth and early twentieth centuries to “protect” children—mostly the poor or those in “especially difficult circumstances.” This was the case, in particular, in countries within the civil law tradition (García-Mendez 2010). Despite these achievements, very few cases of an integral or holistic application of the CRC to national law can be found even today. The most paradigmatic example of such a comprehensive piece of legislation is the Brazilian Statute on the Child and the Adolescent passed in July 1990 as a culmination of the 1980s process leading the country to restore democracy after military rule. Other examples of a unified body of child law exist in Egypt, Kenya, Mozambique, Nigeria, Sierra Leone, South Africa, Tanzania, Tunisia, and Vietnam. By now, a second generation of legislative reform has begun to emerge, with some countries reviewing and reforming legislation passed immediately after the CRC came into effect. Sometimes this has happened to reflect a better understanding of child rights, for example in Mozambique, which raised the marriage age to 18 for both boys and girls. |
