Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 11, Issue 1, April 2022
Feature Article

A Human Rights Approach to First Call for Children: Mapping the Perils and Promises in South Asia

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  • Geeta Pathak Sangroula
Geeta Pathak Sangroula
Senior Advocate (Supreme Court of Nepal), Professor, Faculty of Law at Kathmandu School of Law
DOI: https://doi.org/10.46985/kslr.v11i1.2212

Published 2022-04-01

Keywords

  • Child Rights, South Asia, International Human Rights Law.

How to Cite

Sangroula , G. P. (2022). A Human Rights Approach to First Call for Children: Mapping the Perils and Promises in South Asia. Kathmandu School of Law Review, 11(1), 1–35. https://doi.org/10.46985/kslr.v11i1.2212
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Abstract

The Convention on the Rights of the Child (CRC) is regarded as one of the most successful human rights treaties for its substance and global acceptance. Being in a row among the highest number of State parties, all South Asian countries promised to respect, protect, and fulfill children's rights. However, the socio-legal constraints and deficits in practical implementation measures have caused setbacks in protecting child rights. This paper aims to explore the historical antecedents of international human rights standards developed step-by-step that contributed to adopting the Convention on the Rights of the Child (CRC). This article navigates the implementation of the provisions enshrined in the CRC, following the essence of the ‘first call for children’ as echoed by the Vienna Declaration and Programme of Action in 1993. The paper aims to reflect the international and regional legal standards incorporated in the domestic laws of South Asian countries. It further intends to focus on a comparative analysis of the legal mechanisms, socio-economic, and political situation regarding child rights with particular reference to the situation and condition of child rights in the South Asian region.

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References

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  72. Ibid.
  73. Ibid.
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  75. Ibid, para. 9.
  76. Ibid, para. 11.
  77. Hardhan Kumar Mohajan, ‘Child Rights in Bangladesh’, Journal of Social Welfare and Human Rights, volume 2:1, 2014, p. 208.
  78. Ibid.
  79. Article 28 (4) stated that ‘nothing shall prevent the state from making special provisions for women and children…’
  80. The Children's Act, 1974, Government of People’s Republic of Bangladesh.
  81. Children Rules, 1976, Government of People’s Republic of Bangladesh.
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  84. Sets out goals for the government for achieving while enacting and implementing child rights legislation.
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  128. Although, Madhu Prasad Regmi, Secretary, Ministry of Women, Children and Social Welfare, Government of Nepal in his 2016 presentation to the Committee on the Rights of Child noted that the shift from federal to unitary governance model would empower local level governance for the better and would help Nepal in future for addressing the various concerns Nepal faced in implementation of its obligation under the CRC.
  129. Constitution of the Islamic Republic of Pakistan 1973, Article 3 provides prohibitions against torture and all form of exploitation and Article 9 and 14 states that an individual’s rights to life, liberty and dignity are considered inviolable. Article 33 discourages all kinds of parochial, racial, tribal, sectarian, and provincial prejudices among citizens. Articles 34 and 35 allow participation of women in all spheres of life, along with protection of marriage, the family, mothers and children. Article 11(1) forbids slavery and trafficking. Article 11(3) prevents employment of children under the age of 14. Right to free and compulsory education to all children between the ages of 5 and 16 has been provided for through the amendment of constitution in 2010 under Article 25A.
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  138. ‘2012 Findings on the Worst Forms of Child Labor’ United States Department of Labor’s Bureau of International Labor Affairs, available at https://www.refworld.org/pdfid/46c190b40.pdf, accessed on 26 November 2020.
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  143. Ettie Bailey-King, ‘The Side of Pakistan You Don’t See’, 2019, Girls Not Brides, available at https://www.girlsnotbrides.org/the-side-of-pakistan-you-dont-see/, accessed on 10 April 2020.
  144. Yagmur Ozturk, ‘Realizing Children's Rights in Pakistan’, Humanium, available at https://www.humanium.org/en/pakistan/, accessed on 10 April 2020.
  145. UNCRC Pakistan, Concluding Observations of the CRC Committee, 11 July 2016, CRC/C/PAK/CO/5.
  146. Article 27(13) states that the state shall promote with special care the interests of children and youth, so as to ensure their full development, physical, mental, moral, religious and social, and to protect them from exploitation and discrimination and Article 27 (2) (g) provides for complete eradication of illiteracy and the assurance to all persons the right to universal and equal access to education at all levels.
  147. Hiranthi Wijemanne, ‘Reflections on Child Rights in Sri Lanka, during the Past 25 Years’, The Sunday Times, 12 October 2014, available at https://mfa.gov.lk/reflections-on-child-rights-in-sri-lanka-duringthe-past-25-years/, accessed on 26 November 2020.
  148. Ibid.
  149. National Child Protection Authority Act, 1998, Sri Lanka.
  150. ‘Children and Young Persons Ordinance’, Sri Lanka Law available at https://www.srilankalaw.lk/Volume-II/children-and-young-persons-ordinance.html, accessed on 26 November 2020.
  151. Employment of Women, Young Persons and Children, 1956, Sri Lanka.
  152. These laws provide guidelines for the government for collaboration and coordination among various agencies along with mechanisms to identify the children at risks.
  153. ‘The Situation of Children in Sri Lanka’, UNICEF Sri Lanka, available at https://www.unicef.org/srilanka/situation-children-sri-lanka, accessed on 10 April 2020.
  154. UNCRC Sri Lanka, Concluding Observations of the CRC Committee, 2018, CRC/C/OPSC/LKA/CO/1.
  155. UNCRC Maldives, Concluding Observations of the CRC Committee, 14 March 2016, CRC/C/MDV/CO/4-5.
  156. ‘Alternative Report on the Implementation of the Convention on the Rights of the Child’, 2015, Maldives, Advocating the Rights of Children (ARC), available at https://tinyurl.com/mud25zwa, accessed on 10 April 2020.
  157. ‘Committee on The Rights of The Child Consideration of Reports Submitted by The States Parties Under Article 44 of The Convention, Republic of Maldives’, United Nations, CRC/C/MDV/4-5, 2012, p.6.
  158. ‘Maldives Education Sector Plan 2019-2023, Ministry of Education & Ministry of Higher Education Republic of Maldives’, Global Partnership, 2019, p.32, available at https://www.globalpartnership.org/sites/default/files/2019-05-maldives-education-sector-plan-2019-2023.pdf, accessed on 27 November 2020.
  159. ‘The Ministry of Gender and Family Establishes the Maldives Child Protection Database (MCPD)’, Gender Gov, 29 September 2016, available at http://gender.gov.mv/en/?p=1647, accessed on 27 November 2020.
  160. Usang Mand Assim and Julia Sloth Nielsen, “Islamic Kafalah as an Alternative Care Option for Children Deprived of a Family Environment”, African Human Rights Law Journal, 2014, volume 14:2.
  161. ‘Maldives Children's Home (Kudakudhinge Hiyaa)’, Simply Giving, available at https://www.simplygiving.com/nonprofit/KudakudhingeHiyaa, accessed on 27 November 2020.
  162. “Submission From the Human Rights Commission of the Maldives for the Combined Fourth and Fifth Periodic Report of The Republic of Maldives under the United Nations Convention on Rights of The Child (CRC) Committee Pre‐ Sessional Working Group Meeting”. Human Rights Commission of the Maldives, 2015, p.13.
  163. ‘Child Protection’, UNICEF Maldives, available at https://www.unicef.org/maldives/what-we-do/child-protection, accessed on 10 April 2020.
  164. Alternative Report of Maldives (n 153).
  165. ‘The Legal Framework for Child Protection in South Asia’, UNICEF, 2020, available at https://www.unicef.org/rosa/media/5906/file/The_legal_framework_for_child_protection_in_south_asia.pdf, accessed on 10 April 2020.
  166. For the purpose of this paper only CRC has been looked at. There are 9 core international human rights instruments. Some of the treaties are supplemented by optional protocols regarding specific issues. There are in total 18 International Human Rights Treaties. South Asians countries have ratified as following out of the total 18 treaties Afghanistan (11), Bangladesh (12), Bhutan (4), India (8), Nepal (13), Pakistan (9), Sri Lanka (14) and Maldives (13), as per the OHCHR on 10th April 2020.
  167. Convention on the Rights of Child Adopted and opened for signature, ratification, and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49.
  168. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 12 February 2002, A/RES/54/263, 25 May 2000.
  169. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 18 January 2002, A/RES/54/263, 25 May 2000.
  170. Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, 14 April 2014, A/RES/66/138, 19 December 2011.
  171. Eliana Riggio Chaudhari, ‘Regional Overview: Combating the sexual exploitation of children in South Asia. Evolving trends, existing responses and future priorities’, 2017, ECPAT International, available at https://www.ecpat.org/wp-content/uploads/2018/03/Regional-Overview_South-Asia.pdf, accessed on 10 April 2020
  172. South Asia in Action: Preventing and Responding to Child Trafficking Analysis of Anti-Trafficking Initiatives in the Region, UNICEF Innocenti Resource Centre, 2009, available at https://www.unicefirc.org/publications/pdf/ii_ct_southasia_analysis.pdf, accessed on 10 April 2020.
  173. It is important to note that this part of the paper draws its inspiration from the latest report on 30 years of child rights in South Asia launched by UNICEF in August 2019.
  174. ‘Gender Counts: A quantitative assessment of gender inequality and its impact on girls and boys in South Asia’, UNICEF Bangkok, 2019, available at https://asiapacific.unfpa.org/sites/default/files/pubpdf/Gender%20Counts_South%20Asia.pdf, accessed on 10 April 2020.
  175. ‘Global Burden of Disease Study’, Institute for Health Metrics and Evaluation (IHME), 2016, available at http://ghdx.healthdata.org/record/ihme-data/gbd-2016-covariates-1980-2016, accessed on 10 April 2020.
  176. Every year, there are 239,000 female deaths under 5 in India, please see Chirstophe Z Guilmoto, Nandita Saikia, Vandana Tamrakar & Jayanta Kumar Bora, ‘Excess Under-5 Female Mortality Across India: A Spatial Analysis Using 2011 Census Data’, The Lancet Global Health, 2018, volume 6:6.
  177. UNICEF Pakistan, Situation Analysis of Children in Pakistan, 2017, available at https://www.unicef.org/pakistan/media/596/file/Situation%20Analysis%20of%20Children%20in%20Pakistan.pd, accessed on 10 April 2020.
  178. ‘Convention on the Rights of the Child, Gender Considerations in the Application of the CRC’, UNICEF, 2019, p.13.
  179. ‘Global Burden of Disease Study’, Institute for Health Metrics and Evaluation (IHME), 2016, available at http://ghdx.healthdata.org/record/ihme-data/gbd-2016-covariates-1980-2016, accessed on 10 April 2020.
  180. ‘The Legal Framework for Child Protection in South Asia’, UNICEF, 2020, pp. 7-10.
  181. Considering the magnitude of deteriorating situation of all forms of gender-based discrimination, exploitation and violence against the girl child, the fourth world conference on women held in Beijing in 1995 adopted a comprehensive strategic objective and the actions to be taken by the government (Beijing Declaration and Platform of Action 1995, paras 259-285).
  182. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, India.
  183. Concluding Observations of the CRC Committee, Afghanistan, 2011, para. 23; Bangladesh, 2015, para. 42.
  184. Concluding Observations of the CRC Committee, Afghanistan, 2011, paras. 25, 40 (d), 41; Maldives, 2016, paras. 26 (b), 40, 44 (f); Pakistan, 2016, paras.18 (b).
  185. Concluding Observations of the CRC Committee, Afghanistan, 2011, paras. 47, 55 (b), 70 (b), 72; Bangladesh, 2015, paras. 42, 44, 74, 78; India, 201, paras. 49 (a), 51; Maldives, 2016, paras. 44 (a), 46, 66; Nepal, 2016, paras. 34 (a), 39, 68, Pakistan, 2016, paras. 16, 36 (c), 38, 51, 75; Sri Lanka, 2018, paras. 23 (b), 41.
  186. ‘Convention on the Rights of The Child, Gender Considerations in the Application of the CRC’, United Nations Children’s Fund Regional Office for South Asia, 2019, p.7.
  187. Bhakhry (n 8), p. 28.
  188. ‘The Right of Children to Free and Compulsory Education’. Education Gov, 2009, available at https://www.education.gov.in/sites/upload_files/mhrd/files/upload_document/rte.pdf, accessed on 27 November 2020.
  189. UNCRC Sri Lanka, Concluding Observations of the CRC Committee, 3 July 2019, CRC/C/OPSC/LKA/CO/1, p. 10-11.
  190. UNCRC Maldives, Concluding Observations of the CRC Committee, 14 March 2016, CRC/C/MDV/CO/4-5, p. 15.
  191. Nepalko Sambidhan (Constitution of Nepal).
  192. Anivarya Tatha Nisulka Sikshya Sambandhi Ain 2075 (The Act Relating to Compulsory and Free Education 2018), Nepal.
  193. ‘Right To Education - Article 21(A)’, Legislative Service India, available at http://www.legalserviceindia.com/legal/article-70-right-to-education-article-21-a-.html, accessed on 27 November 2020.
  194. Bhakhry n (8).
  195. ‘Joint Action Plan 2071/72 – 2076/77, School Health and Nutrition’, Government of Nepal Ministry of Health and Population Ministry of Education, available at http://www.chd.gov.np/downloads/5%20SHNP_Joint%20Action%20Plan_2071-72%20to%20076-77_English.pdf, accessed on 27 November 2020.
  196. ‘Convention on The Rights of Child, celebrating 30 years in South Asia 1989-2019’, United Nations Children’s Fund Regional Office for South Asia, available at https://tinyurl.com/nhkcnsy4, accessed on 27 November 2020.
  197. For details please see, Concluding Observations of the CRC Committee, Afghanistan, 2011, p.11; Bangladesh, 2015, p.11; Bhutan, 2017, p.8; India, 2014, p.14; Nepal, 2016, p.16; Pakistan, 2016, p.12; Sri Lanka 2018, p.10.
  198. Early Learning and Early Childhood Development, UNICEF, available at https://www.unicef.org/rosa/what-we-do/education/early-learning-childhood-development, accessed on 2 April 2020.
  199. ‘Status of Civil Registration and Vital Statistics in South Asia Countries’, UNICEF, 2018, available at https://www.unicef.org/about/annualreport/files/SA_ROAR_2017.pdf, accessed on 2 April 2020.
  200. Bangladesh: Comprehensive ECCD Policy, 2013; Bhutan: ECCD National Policy, 2011; India: National ECCE Policy, 2013; Sri Lanka: National Policy on ECCD, 2018; Afghanistan: Integrated Preschool Education Policy is under Discussion; Maldives: Preschool Act, 2012; Nepal: Education Act, 8th edition. ECD Strategy; Pakistan: National Education Policy, 2009.
  201. ‘Early Childhood Development Briefing Book’, UNICEF, May 2019, p.9, available at https://weshare.unicef.org/Detail/2AMZIFTRKHA%C2%A0, accessed on 2 April 2020.
  202. Disability and Development Report, Realizing the Sustainable Development Goals by, for and with persons with disabilities, United Nations, 2018, available at https://www.un.org/development/desa/disabilities/wpcontent/uploads/sites/15/2018/12/UN-Flagship-Report-Disability.pdf, p. 42, accessed 10 April 2020.
  203. Ibid, p.88.
  204. For details please see, Concluding Observations of the CRC Committee, Bangladesh, 2015, para. 52-53; Bhutan, 2017, para. 32; India, 2014, para. 62; Maldives, 2016, para. 54-55; Nepal, 2016, para 46-47; Pakistan, 2016, para 45-46; Sri Lanka, 2018, para. 29.
  205. For details please see, Concluding Observations of the CRC Committee, India, 2014, para. 61; Pakistan, 2016, para. 45.
  206. Elizabeth Lightfoot & Sharyn Dezelar, ‘The Experiences and Outcomes of Children in Foster Care Who Were Removed Because of a Parental Disability’, Children and Youth Services Review, volume 62, 2015, pp. 22-28.
  207. Afghanistan has introduced the ‘National Strategy for Children with Disabilities’ (2008) and the ‘Law on the Rights and Privileges of People with Disabilities and Martyrs’ Families’ (2010); The Maldives has adopted the ‘Protection and Financial Assistance to Persons with Disabilities Act’ in 2010 and an inclusive education policy in 2012; Sri Lanka in 2016 ratified the Convention on the Rights of Persons with Disabilities.
  208. Colleen Murray Gastón, Christina Misunas & Claudia Cappa, ‘Child Marriage Among Boys: A Global Overview of Available Data’, 2019, Taylor & Francis, pp. 219-228.
  209. UNICEF Data, Child Marriage and Child Protection, UNICEF, 2019, available at https://data.unicef. org/topic/child-protection/child-marriage/, accessed 2 April 2020
  210. “Child Marriage”. UNICEF South Asia, available at https://www.unicef.org/rosa/what-we-do/childprotection/child-marriage, accessed on 27 November 2020.
  211. UNICEF Kathmandu, United Nations Children's Fund, The Legal Framework for Child Protection in South Asia, 2020, available at https://www.unicef.org/rosa/media/5906/file/The_legal_framework_for_child_protection_in_south_asia.pdf accessed on 10 April 2020; Based on most recently available Multiple Indicator Cluster Survey and Demographic Health Survey findings reports.
  212. UNCRC Bangladesh, Concluding Observations of the CRC Committee, 30 October 2015, CRC/C/BGD/CO/5, para. 22.
  213. UNCRC Maldives, Concluding Observations of the CRC Committee, 14 March 2016, CRC/C/MDV/CO/4-5, paras. 46-47.
  214. ‘South Asia Initiative to End Violence Against Children (SAIEVAC)’, Regional Action Plan to End Child Marriage in South Asia, 2015, available at https://www.girlsnotbrides.org/wp-content/uploads/2018/01/ RAP_Child_Marriage.pdf accessed on 10 April 2020.
  215. UNCRC India, Concluding Observations of the CRC Committee, 7 July 2014, CRC/C/OPAC/IND/CO/1, para. 51.
  216. UNCRC Sri Lanka, Concluding Observations of the CRC Committee, 3 July 2019, CRC/C/OPSC/LKA/ CO/1, para. 1.
  217. UNCRC Pakistan, Concluding Observations of the CRC Committee, 11 July 2016, CRC/C/PAK/CO/5, paras 65-66.
  218. Article 28 - Protection of the Rights of the Child Act, 2019 provides for three exceptions under which a child is not entitled to any rights under this law which are; a child who enters a contract of marriage; a child who becomes a parent; and a child who is employed.
  219. UNCRC Nepal, Concluding Observations of the CRC Committee, 8 July 2016, CRC/C/NPL/CO/3-5, paras. 39-40.
  220. South Asia’s Adolescent Data – India: 250 million with 19% of the total population; Pakistan: 38.8 million with 21% of the total population; Bangladesh: 32.5 million with 20% of the total population; Afghanistan: 8.3 million with 26% of the total population; Nepal: 6.6 million with 23% of the total population; Sri Lanka: 3.3 million with 16% of the total population; Bhutan: 144 thousand with 19% of the total population; Maldives: 64 thousand with 17% of the total population.
  221. Elena Camilletti, ‘Realizing an Enabling Environment for Adolescent Well-Being: An inventory of laws and policies for adolescents in South Asia’, UNICEF Office of Research, 2018, p. 16.
  222. 'Ensuring Child Rights in the New Constitution of Nepal', World Vision, 2011, available at https://www.wvi.org/nepal/article/ensuring-child-rights-new-constitution-nepal, accessed on 10 April 2020.
  223. For more specific rights of the young by the CRC, see Article 13 assures young people’s right to the freedom of expression; Article 15 enshrines the right to Freedom of Association and Peaceful Assembly. This implies the ability of young people to gather and organize in order to represent their views systematically; Article 17 articulates the Right to Information, a prerequisite for meaningful participation in decision-making domains.
  224. Manfred Nowak, UN Global Study on children Deprived of Liberty, 11 July 2019, UNGA A/74/50.
  225. ‘Children Deprived of Liberty: Learning from the UN Global Study’, Global Campus of Human Rights, available at https://gchumanrights.org/education/e-learning/moocs/children-deprived-of-liberty-learning-from-the-un-global-study/about.html, accessed on 27 November 2020.
  226. ‘Guidance Note of the Secretary-General: UN Approach to Justice for Children’, United Nations, 2008 available at https://www.unicef.org/rosa/media/4591/file, accessed on 8 April 2020.
  227. Justice for Children, UNICEF, available at https://www.unicef.org/rosa/what-we-do/child-protection/justice-children, accessed on 2 April 2020.
  228. ‘UN Approach to Justice for Children’, Guidance Note of the Secretary-General, 2008, available at https://www.unicef.org/rosa/media/4591/file, accessed on 8 April 2020.
  229. Nowak (n 223).
  230. Afghanistan: Juvenile Code, 2005 & Law on Protection of Child Rights, 2019; Bangladesh: Children Act, 2013; Bhutan: Child Care and Protection Act, 2011; India: Juvenile Justice (Care and Protection of Children) Act, 2015; Maldives: Regulations on Investigation, Adjudication and Sentencing in respect of Offences committed by Minors; Nepal: Act Relating to Children, 2018; Pakistan: Juvenile Justice System Act, 2018; Sri Lanka: Children and Young Persons Ordinance.
  231. Children are not provided with qualified, independent, free, or subsidized legal aid (Afghanistan, 2011, para 74; India, 2014, para 87; Sri Lanka, 2018, para 45) and statements may be forcibly extracted from them (Afghanistan, 2011, para 74).
  232. ‘The Legal Framework for Child Protection in South Asia’, UNICEF, 2020, available at https://www.unicef.org/rosa/media/5906/file/The_legal_framework_for_child_protection_in_south_asia.pdf accessed on 10 April 2020.
  233. See for details, Kilkelly, (n 20) pp.143-152, and also ‘Study of legal implementation of the UN Convention on the Rights of the Child in 12 countries’ conducted on behalf of UNICEF UK by Laura Lundy, Bronagh Byrneand, Jason Kang of the Centre for Children’s Rights at Queen’s University Belfast and Ursula Kilkelly of Faculty of Law, University College Cork, available at www.unicef.org.
  234. ‘Religious Leaders in South Asia Commit to Work with UNICEF to Protect and Promote Children’s Rights’, UNICEF, 29 January 2020, available at https://www.unicef.org/rosa/press-releases/religious-leaders-south-asia-commit-work-unicef-protect-and-promote-childrens-rights, accessed on 28 November 2020.

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