scholarly journals THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD – HAS THE BRIDGE BEEN CROSSED BETWEEN THEORY AND PRACTICE: MAURITIUS AND SOUTH AFRICA?

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
United Nations ◽  
International Law ◽  
Theory And Practice ◽  
Best Interests ◽  
Vulnerable Group ◽  
Rights Of The Child ◽  
United Nations Convention ◽  
The United Nations ◽  
The Republic

On 20 November 1989 the United Nations adopted a treaty, the Convention on the Rights of the Child (hereinafter “the Convention”), which specifically focuses on a particularly vulnerable group in society at large – children (1577 UNTS 3 (1989) 28 ILM 1456). That the international community ratified this treaty so soon after its proposal is indicative of the fact that it considered this treaty as one of major importance. In accordance with Article 49 the Convention took effect and became international law on 2 September 1990. The Republic of Mauritius was quick to respond to the appeal and became a signatory in 1990. South Africa followed suit and became asignatory on 16 June 1995. The response from both these Republics is admirable, but one has to investigate how these two nations have succeeded in giving effect to their obligations as signatories. The actual provisions in the respective countries’ national law will indicate the measure of true compliance with the Convention. In this note I shall confine my discussion to article 3 and article 4 of theConvention and more specifically to the consideration of the best interests of a child where his or her parents are divorcing or separating.

scholarly journals Intermediaries and the International Obligation to Protect Child Witnesses in South Africa

2018 ◽  
Vol 21 ◽  
pp. 1-30 ◽  
Author(s):  
Rongedzayi Fambasayi ◽  
René Koraan
Keyword(s):  
South Africa ◽  
United Nations ◽  
International Law ◽  
Child Witnesses ◽  
Best Interests ◽  
Specific Reference ◽  
Child Victims ◽  
Rights Of The Child ◽  
International Obligation ◽  
The United Nations

This contribution examines the protection of child witnesses in criminal proceedings under international and regional laws. This consideration is made against the background that the Constitution of the Republic of South Africa, 1996 proclaims in section 39(1)(b) that in interpreting the Bill of Rights and any legislation a court or tribunal must consider international law. The United Nations Convention on the Rights of the Child (1989), the African Charter on the Rights and Welfare of the Child (1990) and the United Nations Guidelines on Justice for Child Victims and Witnesses to Crime (2005) do not make specific reference to child witnesses and how they should be treated. However, it is argued that the guiding principles enshrined therein provide for the protection of child witnesses, particularly the best interests of the child and the right to participate. In addition, the article enumerates and explains the rights of child witnesses as provided for in the UN Guidelines. International law will be discussed first, and then South African law, to establish if the international obligation to protect child witnesses is being adhered to.

scholarly journals The CRC in South Africa 15 years on: does the new Child Justice Act 75 of 2008 comply with international children’s rights instruments?

2020 ◽  
Vol 62 (2) ◽  
pp. 167-182
Author(s):  
Lorenzo Wakefield
Keyword(s):  
South Africa ◽  
United Nations ◽  
Children's Rights ◽  
International Standards ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
International Obligations ◽  
The United Nations ◽  
The Right

Article 40 of the United Nations Convention on the Rights of the Child requires states parties to take appropriate measures to ensure that children accused of committing offences are treated in a manner that would ensure that their best interests are upheld. South Africa ratified the CRC in 1995, the provisions of which have influenced the children’s rights clause in its 1996 Constitution. Section 28(1)(g) of the Constitution stipulates that children may not be detained, except as a measure of last resort and, should they be detained, it should be for the shortest appropriate period of time. Section 28(1)(g) goes further to give domestic effect to the following guarantees stipulated in Article 40 of the CRC: (1) the right to be treated in a manner, and kept in conditions, that take account of the child’s age; and (2) to have a legal practitioner assigned to the child. Recently, SA has enacted its Child Justice Act 75 of 2008, which came into operation on 1 April 2010. The question to be covered in this article is whether this Act truly complies with the international standards set by the CRC (15 years after SA ratified it); the general comments by the United Nations Committee on the Rights of the Child and other non-binding, yet persuasive instruments like the Standard Minimum Rules on the Administration of Juvenile Justice and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. This article only examines four aspects of the Child Justice Act, being: criminal capacity; pretrial release and detention; diversion; and sentencing. It concludes that, but for a few technical aspects of the Child Justice Act, SA took significant steps to comply with its international obligations when it domesticated the CRC in relation to children who commit offences.

The United Nations Convention on the Rights of the Child: The Good, the Bad, and the Useless

2019 ◽  
Vol 3 ◽  
pp. 42-57
Author(s):  
Midori Matthew
Keyword(s):  
United Nations ◽  
International Law ◽  
Emotional Abuse ◽  
Children's Rights ◽  
Legal Framework ◽  
Children’S Rights ◽  
International Treaties ◽  
Rights Of The Child ◽  
United Nations Convention ◽  
The United Nations

The United Nations Convention on the Rights of Children (UNCRC), put forth in 1989, has generated a global movement in the direction of protecting and promoting children’s rights, resulting in a paradigm change in how children are perceived under the law. While the UNCRC is the most widely ratified international human rights treaty in human history, children’s fundamental right to protection continues to be violated through actions instigated by adults, such as neglect, physical, sexual, or emotional abuse, or being coerced into marriage, wartime activities, or slavery. This is largely a result of international law having no empirical legal binding; since countries are sovereign upon themselves, without domestic enforcement by each individual signatory country, there is no obligation to abide by the terms of international treaties. Applying both a philosophical and legal framework, this paper seeks to provide a critical analysis of whether or not treaties of international law, such as the Convention on the Rights of Children (UNCRC), have an unyielded potential to spark a tangible, beneficial change in the promotion of children’s rights, or if such doctrines are nothing more than glorified pieces of lip service paid to bolster the signatory country’s face value on a global level.

Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights

2020 ◽  
Vol 20 (4) ◽  
pp. 745-768
Author(s):  
Milka Sormunen
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Procedural Approach ◽  
Rights Of The Child ◽  
European Court ◽  
Significant Strength ◽  
United Nations Convention ◽  
The United Nations

Abstract According to Article 3(1) of the United Nations Convention on the Rights of the Child, the best interests of the child have to be a primary consideration in all cases concerning children. The Committee on the Rights of the Child understands Article 3(1) as a ‘threefold concept’: a substantive right, an interpretive principle and a rule of procedure. This article argues that the provision is best understood as a procedural obligation. Understanding Article 3(1) as a procedural obligation remedies key problems that originate from interpreting the provision as a substantive right. A significant strength of the procedural approach is that it can be consistently applied in different case groups. This article illustrates the argument with the case law of the European Court of Human Rights related to children, in which the article detects three layers of a procedural approach to the best interests of the child.

scholarly journals Exploring the Tension between the Rights of the Child and Parental Rights: Voices from Ghana

2021 ◽  
Author(s):  
Obed Adonteng-Kissi
Keyword(s):  
United Nations ◽  
Children's Rights ◽  
Children’S Rights ◽  
Best Interests ◽  
Parental Rights ◽  
Cultural Variations ◽  
Rights Of The Child ◽  
Role Of The State ◽  
United Nations Convention ◽  
The United Nations

The principle of “best interests of the child” is firmly established in legal jurisprudence and has taken a firm hold on several domestic and global instruments. Generally, the courts rely on this principle in many cases of child custody, child work, child labour, and compulsory education. The norm of best interests of the child seems to be placed at the core of international law in relation to children’s rights by Article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC). Nevertheless, there is no one universal “best interests of the child” norm owing to cultural variations. In Ghana, this raises issues of conflicts between expectations in the rights and duties of the parent and the right of the child as expressed in the United Nations Convention on the Rights of the Child (UNCRC) and offers a genuine opportunity for reform. The United Nations Convention on the Rights of the Child (UNCRC) adopted the rights of the child that can be classified into three groups: protection rights, provision rights, and participation rights. It appears the best interests of the child is at the centre of international children’s rights law which is articulated through Article 3(1) of the UNCRC. Presently, the advocacy of a child’s right to welfare grounded on human dignity has generated the present discussion on the rights of the child. Article 18 of the UNCRC provides that parents have a shared and core responsibility for the nurturing of their children and that in undertaking their child upbringing responsibilities, appropriate support shall be offered to parents and legal guardians by State Parties. Usually, the variation between children’s rights and parental rights, nonetheless, is not acknowledged by the UNCRC. Furthermore, the UNCRC views children to be competent individuals who should be an essential component of decision-making on issues affecting them. The parent/child contrast demonstrates that there is the need for cooperation that protects the rights of the child, the parent and defines the role of the state. There is the need to explore the best legal and judicial processes for realising this cooperation.

scholarly journals The Meaningful Participation and Complex Capacities of Children in Family Law

2021 ◽  
Vol 29 (1) ◽  
pp. 78-98
Author(s):  
Emmie Henderson-Dekort ◽  
Veronica Smits ◽  
Hedwig van Bakel
Keyword(s):  
United Nations ◽  
Conceptual Analysis ◽  
Family Law ◽  
Best Interests ◽  
Meaningful Participation ◽  
Rights Of The Child ◽  
Specific Setting ◽  
United Nations Convention ◽  
The United Nations ◽  
Custody And Access

Abstract This paper explores the connection between articles within the United Nations Convention on the Rights of the Child and the participation and capacities of children. Though discussed in an abundance of literature, this article aims to analyse conceptually articles relating to the participation of children and expand upon the concept of a child’s capacity. The specific setting of custody and access proceedings will be considered throughout. Four critical articles, 3, 5, 9 and 12, within the Convention, will be examined thoroughly which emphasise the capacities, voices, views and best interests of children. These articles will be adequately considered in order to determine how the provisions actualise the participation of children in custody and access proceedings. A conceptual analysis of the aforementioned articles will be included to discuss concepts, definitions, language and critiques.

scholarly journals Extradition in the absence of state agreements: Provisions in international treaties on extradition

2019 ◽  
pp. 31-42
Author(s):  
Untalimile Crystal Nyathi Mokoena ◽  
Emma Charlene Lubaale
Keyword(s):  
South Africa ◽  
United Nations ◽  
International Law ◽  
United Arab Emirates ◽  
State Sovereignty ◽  
International Treaties ◽  
International Treaty ◽  
International Obligation ◽  
United Nations Convention ◽  
The United Nations

By virtue of state sovereignty, states exercise authority over all persons and things within their territories. This includes individuals suspected of committing or charged with crimes in foreign states. International law generally imposes no obligation to surrender individuals suspected of or charged with committing crimes in foreign states. Fugitives may only be returned when an agreement exists between the states concerned. As such, states are increasingly ratifying international treaties mandating cooperation to ensure that individuals responsible for certain categories of crimes are brought to justice. It is worth noting that some of these states lack extradition treaties with each other. For example, South Africa and the United Arab Emirates (UAE) are party to the United Nations Convention Against Corruption (UNCAC) which mandates that they cooperate with each other in ensuring that crimes related to corruption are prosecuted. However, there is no extradition treaty between South Africa and the UAE. In these circumstances, a question arises as to whether they can they rely on the UNCAC to extradite individuals for corruption-related crimes. If they can, what is the nature of the international obligation entrenched under the UNCAC? Overall, what is the standing of international treaty clauses on extradition for states without extradition treaties?

scholarly journals The United Nations Convention on the Rights of the Child and its Importance in the Law of the Republic of Srpska in General, and Particularly in Juvenile Criminal Law of the Republic of Srpska / Konvencija Ujedinjenih nacija o pravima djeteta i njen značaj u pravu Republike Srpske uopšte, a posebno u maloljetničkom krivičnom pravu Republike Srpske

2014 ◽  
Vol 4 (4) ◽  
pp. 5
Author(s):  
Ljubinko Mitrović
Keyword(s):  
United Nations ◽  
Criminal Law ◽  
Special Role ◽  
Legal Standards ◽  
Official Gazette ◽  
Rights Of The Child ◽  
United Nations Convention ◽  
The United Nations ◽  
The Law ◽  
The Republic

Juvenile criminal law of the Republic of Srpska is a set of legal (and secondary) regulations governing the criminal justice status of juveniles as perpetrators of criminal acts and juveniles as victims, i.e. victims of crime. Certainly, it is a special part of the criminal law of the Republic of Srpska that, due to a number of specific solutions, has assumed the character of an independent legislative and scientific discipline in the Republic of Srpska, as in many modern European countries.The main source of juvenile criminal law in the Republic of Srpska that has primacy in the application against juvenile offenders is the Law on the protection and treatment of children and juveniles in criminal proceedings (passed by the National Assembly of the Republic of Srpska in February 2010, published in the Official Gazette of the Republic of Srpska, number 13/2010; this law was amended at the end of 2013 - amendments to this law have been published in the Official Gazette of the Republic of Srpska, number 61/2013).Certain legal standards set forth in a lot of international legal acts have a special role in the statutory formulation of this branch of the criminal law in all modern countries. The situation is similar in the Republic of Srpska where the international legal standards previously implemented by Bosnia and Herzegovina (and therefore also by the Republic of Srpska as a part of it) were the framework for the creation of the aforementioned legal texts and all bylaws regulating this very important field. In this paper, we will discuss one of the most important international legal documents - the United Nations Convention on the rights of the child.

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