Statement from
Children’s Law Centre and
Save the Children UK in Northern Ireland

to

Joint Committee on Human Rights on the Report of the Government’s Review of International Human Rights Instruments

30 November 2004


Children’s Law Centre
Philip House
123-137 York Street
Belfast BT15 1AB
Tel: 028 90 245704
saraboyce@childrenslawcentre.org Save the Children UK in Northern Ireland
Popper House
15 Richmond Park
Belfast BT10 0HB
Tel: 028 90 431123
s.chamberlain@savethechildren.org.uk


Introduction

1. The Children’s Law Centre (CLC) and Save the Children UK (SC) in Northern Ireland are the two main Northern Ireland based children’s rights non-governmental organisations (NGOs). We lead NGOs in the children’s and young people’s sector in advocating for the implementation by government of international human rights standards as they apply to children and young people in Northern Ireland. We employ a dedicated Children’s Human Rights Advisor whose role is to engage with the human rights systems and instruments, both at a UN and a European level, with a view to securing the mainstreaming of children and young people’s rights domestically.

2. We welcome the Joint Committee’s decision to report to parliament on the outcome of the Inter-Departmental Review of International Human Rights Instruments. A significant number of the international instruments included in the review have relevance for the protection of children and young people’s rights and as such we believe that this scrutiny of government’s decisions in relation to these instruments is very valuable.

3. We welcome the government’s ratification of the UN Optional Protocol to the CRC on the involvement of children in armed conflict, notwithstanding the declaration it entered, its decision to ratify the UN Optional Protocol on the Sale of Children as well as the UN Optional Protocol to CEDAW on the right to individual petition. However, in general we are disappointed that the government has failed to use this opportunity to remove its reservations and interpretative declarations to the UN Convention on the Rights of the Child and its reservations to the various other human rights instruments that have negative implications for the promotion and protection of children’s rights. The reasons provided by government for its failure to act on these reservations are inadequate and undermine its stated commitment to children’s rights protections. Clearly the goal of ensuring full and unqualified respect for children’s rights can only be achieved if the government withdraws its reservations to these instruments.

4. It is also regrettable that government still has not signed or ratified the Council of Europe’s revised European Social Charter, leaving children without access to its individual complaints mechanism and without the benefit of the monitoring function conducted by the Committee. It would be useful if the Committee could elicit a rationale from government on its decision in relation to this instrument, as none is provided in its review report. While we welcome government’s consultation on the Convention on Contact Concerning Children we are of the view that this Convention should be ratified without delay.



Reservation to Article 24 (3) ICCPR on the right to acquire a nationality

5. This reservation to Article 24 (3) of the ICCPR restricting the scope of children to acquire a nationality, in the interests of what government has described elsewhere as ‘effective immigration control’, is contrary to UNCRC general principles of non-discrimination and best interests, as well as to article 7 of the UNCRC which reflects the text of article 24 (3) of the ICCPR. The UN Committee on the Rights of the Child has made it clear that children living within a particular jurisdiction should enjoy the same rights and protections as other children, including the right to acquire a nationality.

6. This reservation is unnecessary as the provision of the ICCPR does not confer a right to a particular nationality – it simply provides for the child’s right to acquire a nationality. This limitation is clearly reflected in the corresponding article 7 of the UNCRC , which picks a careful way between state anxieties regarding ‘effective immigration control’ and the recognition that children should have a right to a nationality. Government should be urged to re-visit this reservation in the light of articles 2, 3 and 7 of the UNCRC with a view to ensuring that any such reservation does not violate fundamental rights of some of the most vulnerable children.


Reservations to Article 10.2 (b) ICCPR and Article 37 (c) CRC on the separation of children from adults in detention.

7. Both of these articles deal with the right of under 18s to be detained separately from adults. This is recognized as a central principle of international law in relation to the operation of juvenile justice, as reflected in the UN CRC, the ICCPR and the Beijing Rules. Government has chosen to maintain its reservation to both instruments, citing ‘operational reasons’ as justification. The UN CRC Committee in 2002 criticized the government for its failure to withdraw this reservation, noting that it appeared that “only resource considerations now prevent the withdrawal of the reservation”. The Joint Committee, in its report on the UN CRC recommended that government reinforce its efforts to ensure that sufficient places were available under local authority care to allow the removal of all girls under 17 from prison custody, thus enabling the reservation to Article 37 (c) to be withdrawn. As it stands both young men and young women under 18 years are being detained alongside adults in Northern Ireland. The use of ‘operational reasons’ as justification for this continued violation of children’s rights is not an adequate or acceptable justification. We would hope that the Joint Committee would reiterate its recommendation that government take all necessary steps to allow it to remove this reservation without delay.


CEDAW Article 16 Interpretative Declaration regarding paramountcy of the interests of the child

8. We welcome the indication from government that, once the Adoption and Children Act 2002 is brought fully into force, this reservation will be able to be dropped for England and Wales. However, in order for the government to comply fully with the provisions on adoption contained in Article 21 of the CRC, which specifies that in adoption cases the best interests of the child must be ‘the paramount’ consideration rather than any lesser level of consideration, it will be necessary for government to fully remove this reservation for all its jurisdictions. Northern Ireland’s adoption legislation, currently being reviewed, must reflect the best interests principle throughout the legislation.


UN CRC General Reservation regarding Immigration and Nationality

9. The government’s decision not to withdraw this wide-ranging reservation is most regrettable. The UN Committee in 2002 expressed concern that the UK government had no intention of withdrawing it, noting that it was “against the object and purpose of the Convention”. The Joint Committee in its examination of the government’s rationale for this reservation was unconvinced by the government’s argument that the need for effective immigration control justified its maintenance and in fact went as far as labeling it ‘far-fetched’. The Joint Committee recommended that the government “demonstrate its commitment to the equal treatment of all children by withdrawing the reservation to the Convention on the Rights of the Child relating to immigration and nationality”. Contrary to government claims that the existence of the reservation should not lead to neglect of the care and welfare of refugee and asylum seeking children, the Joint Committee drew attention to the concerns raised by the UN Committee regarding detention, dispersal and access to health care and education, noting that these concerns would appear to counter government’s claims regarding the sufficiency of protection enjoyed by refugee and asylum seeking children.

10. The continued maintenance of this reservation, which is contrary to the object and purpose of the Convention, raises serious questions as to the government’s genuine and wholehearted commitment to the equal treatment of all children as required by the CRC.



CRC Optional Protocol on children in armed conflict

11. We welcomed the ratification of the CRC Optional Protocol relating to children in armed conflict, the decision on which was made prior to the government’s inter-departmental review. However we are strongly of the belief that the declaration entered by the UK government on signing the Protocol undermines their commitment to keep under 18s in the armed forces out of combat zones. This is a view shared by the Joint Committee who noted “the inconsistency inherent in the declaration made by the UK ratification of the optional protocol protecting armed forces recruits under 18 years of age from exposure to hostilities, which appears to us to be unnecessary if the commitment to take all reasonable steps to protect under 18s is effective”. This weakening of government’s obligations under the Protocol should be highlighted again and government should be urged to remove this declaration.


ECHR Protocol 1 Article 2

12. The margin of appreciation with respect to the application of the provisions of the ECHR allows for the exercise of restrictions and it is clear from Strasbourg case law that there is no requirement on government to undertake anything other than reasonable expenditure. This reservation is really completely superfluous and fails to understand the context of Article 2 Protocol 1. The Joint Committee should recommend to government that it withdraw this reservation.