The international law on the right of the child to survival and development

書誌事項

The international law on the right of the child to survival and development

Khadeija Elsheikh Mahgoub

Intersentia, c2016

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注記

Includes bibliographical references (p. 283-300)

内容説明・目次

内容説明

This comprehensive and in-depth study on the understanding and interpretation of the child's right to survival and development provides a compact assessment of article 6(2) of the Convention on the Rights of the Child (CRC) in light of its drafting history, the reports of the Committee on the Rights of the Child and other relevant sources appropriate to the discipline of international human rights law. The author analyses the travaux preparatoires of the CRC and the academic work of some of its drafters. The book includes an interview with one of the drafters and explores the literature of the Committee on the Rights of the Child with respect to article 6(2) and how its understanding and interpretations of this article have developed over time. It examines the weaknesses and strengths in relation to the observations it has made and explores the legal effects of the Committee's classifications and makes suggestions for others as well. Importantly, the book also discusses the relationship between the right of the child to survival and development and his/her dignity.It provides an understanding of the child's physical, mental, spiritual, moral and cognitive development in the context of his/her right to survival and development. In addition, the author discusses various State obligations aiming at the enjoyment of the right to survival and development and also touches on global warming and its relationship with the right of the child to survival and development. The reader will gain an understanding of different approaches to the interpretation of human rights treaties in general, and attitudes towards the assessment of the work of the Committee on the Rights of the Child. He will also learn about the connection between the right to development and the economic and social rights of the child on the one hand, and the right of the child to survival and development on the other hand. Moreover, the book introduces the concept of comprehensiveness and individuality of the right of the child to survival and development and fundamentally argues that there is still more to add to the understanding and interpretations of article 6(2) of the CRC.

目次

CO N T E N TS Acknowledgements ... v Introduction ... 1 Chapter 1. Historical Background ... 7 1. Introduction ... 7 2. The Concept of Development and the United Nations Convention on the Rights of the Child ... 8 2.1. Basic Facts ... 8 2.2. The International Year of the Child and Development ... 9 3. Modern I nter nat iona l Law and Recognition of the Right of the Child to Survival and Development Prior to the Adoption of the CRC ... 11 3.1. Documents that are Solely Concerned with the Rights of the Child ... 12 3.1.1. Declaration of Geneva (1924)... 12 3.1.2. 1959 United Nations Declaration of the Rights of the Child ... 13 3.2. Documents that are not Solely Concerned with the Rights of the Child ... 16 3.2.1. Non-Binding Document ... 16 3.2.2. Binding Documents ... 17 3.3. Other International and Regional Documents... 21 4. The Development of the Convention on the Rights of the Child ... 21 5. The Open-Ended Working Group... 25 6. Th e Drafting History of Article 6(2) on the Right of the Child to Survival and Development ... 27 6.1. First Steps ... 27 6.2. Reactions and Drafting Process ... 28 6.3. Final Drafting Process ... 33 7. The Role of the United Nations Children's Fund (UNICEF) in the Drafting of Article 6(2) ... 36 7.1. Participation of UNICEF at the Drafting Sessions ... 36 7.2. Child Survival and Development Revolution ... 39 8. The 1986 United Nations Declaration on the Right to Development and the Drafting of Article 6(2) on the Right of the Child to Survival and Development ... 42 8.1. Basic Facts about the Declaration on the Right to Development ... 42 8.2. DRD and the Drafting of Article 6(2) ... 43 9. Conclusion ... 45 Chapter 2. Current and Possible Interpretations of Article 6(2). Analytical Perspectives to the Work of the Committee on the Rights of the Child ... 47 1. Introduction ... 47 2. The Committee on the Rights of the Child ... 49 2.1. Main Features of the Committee's Interpretative Work ... 49 2.2. Main Framework of the Committee's Interpretation of Article 6(2) ... 50 2.3. Direct Consequences of the Committee's Framework for Article 6(2) ... 52 3. The Nature of the Committee on the Rights of the Child's Work ... 52 3.1. Interpretative Capacity of the Committee on the Rights of the Child ... 52 3.2. Other Duties of the Committee ... 56 3.3. Bases of Interpretation ... 57 3.4. Factors that Influence the Committee's Interpretations ... 62 4. The Reporting Mechanism ... 64 5. The Recommendations of the Committee on Article 6(2) ... 66 5.1. The Reporting Process ... 66 5.2. The Committee's Evolving Recommendations with regard to Article 6(2) ... 68 5.3. The Legal Status of Article 6(2) according to the Interpretation of the Committee on the Rights of the Child ... 70 6. Special Link with the Economic and Social Rights of the Child ... 72 6.1. Bases for Identifying Economic Social and Cultural Rights ... 72 6.2. Legal Status of Economic, Social and Cultural Rights within the CRC ... 73 6.3. Special Link between Article 6(2) and Some Specifi c Economic, Social and Cultural Rights ... 75 6.3.1. Special Link between Article 6(2) and Article 24 on the Right of the Child to Health ... 75 6.3.2. Special Link between Article 6(2) and Article 23 on the Rights of the Disabled Child ... 80 6.3.3. Special Link between Article 6(2) and Article 26 on the Ri ht of the Child to B fit f S i l S it 82 6.3.4. Special Link between Article 6(2) and Article 27 on the Right of the Child to an Adequate Standard of Living ... 85 6.3.5. Special Link between Article 6(2) and Article 33 on the Right of the Child to be Protected from the Use of Illicit Drugs ... 90 6.4. Consequences of Associating Article 6(2) with Economic, Social and Cultural Rights ... 91 7. Aspects of the Child's Development ... 91 7.1. Specific Developmental Domains ... 92 7.2. Interaction between Article 6(2) and Human Development ... 96 7.3. Difference between the Right to Development under Article 6(2) and other CRC Provisions ... 97 8. Legal and Conceptual Results of Clustering Article 6(2) as an Economic and Social Right of the Child ... 98 8.1. Legal Results ... 98 8.2. Conceptual Results ... 101 9. Possibility of other Classifications of Article 6(2)... 102 9.1. Right to Development ... 102 9.2. The Holistic Approach ... 105 9.3. Right to Development Aspects of Article 6(2) ... 108 10. Conclusion ... 110 Chapter 3. The Nature of Article 6(2) on the Sur vival and Development of the Child ... 113 1. Introduction ... 113 2. Article 6(2) as a General Principle: A Disputed Identity ... 114 2.1. Article 6(2) as a General Principle in the Jurisprudence of the Committee on the Rights of the Child ... 115 2.2. Main Features of the General Principles ... 116 2.2.1. General Principles Should Guide the State Legislation and Administrative Decisions ... 118 2.2.2. General Principles Should Guide National Judicial Decisions ... 119 2.2.3. The Implementation of the General Principles Should not be Dependent on Budgetary Resources ... 120 2.2.4. General Principles Should be Realised at both de jure and de facto Levels ... 120 2.2.5. Implementation of the General Principles Should Lead to the Effective Implementation of Children' Rights ... 121 3. Equality of the 'General Principles of the CRC' ... 122 4 Is A ti le 6(2) a G l P i i l f a 'Sp i l N t '? 124 5. Article 6(2) as a Right ... 130 6. The Survival and Development of the Child as an Aim of the Convention ... 135 6.1. Specific Examples on Article 6(2) as an Aim ... 137 7. Article 6(2) as a Quality-Control Factor ... 138 8. Conclusion ... 140 Chapter 4. The Survival and Development of the Child and the Child's Human Dignity ... 141 1. Introduction ... 141 2. Understanding Human Dignity ... 142 2.1. Importance of the Universal Concept of Human Dignity ... 142 2.2. Human Dignity as a Living Concept within Various Religious, Cultural, Ideological, Social and Legal Backgrounds ... 144 2.3. Significance of Human Dignity in the Context of this Chapter ... 145 2.4. Definition of Human Dignity ... 145 2.5. Features of Human Dignity ... 146 3. The Responsibility of the State to Protect the Human Dignity of the Child ... 148 4. Human Dignity in International Law and National Constitutions ... 150 5. Dignity and the Convention on the Rights of the Child ... 153 5.1. General Features of Dignity ... 153 5.2. Human Dignity under the Convention ... 155 5.3. Human Dignity and the Participation Principle ... 156 5.4. Human Dignity and the Evolving Capacity Principle ... 157 5.5. Human Dignity and the Best Interest Principle ... 158 5.6. Other Aspects of Human Dignity within the CRC ... 158 6. The Human-Dignity Principle and Article 6(2) of the CRC: the Aim and the Criterion ... 159 6.1. Human Dignity and the Right of the Child to Survival and Development: the Criterion ... 160 6.1.1. Human Dignity Criterion: Right to Survival and Development and Right to Life ... 161 6.2. Human Dignity and the Right of the Child to Survival and Development: the Aim ... 163 7. Human Dignity and Article 6(2) in its Capacity as a General Principle ... 165 7.1. Child's Dignity, General Principle of Survival and Development and CRC Provisions that Make E li it Ref to 'Di it ' 165 7.2. Child's Dignity, General Principle of Survival and Development and CRC Provisions that do not Make Explicit Reference to 'Dignity' ... 167 7.2.1. Child's Dignity, General Principle of Survival and Development, Exploitation of Children ... 167 7.2.2. Child's Dignity, General Principle of Survival and Development and Harmful Traditional Practices ... 169 8. Case Study on Human Dignity of the Child and Corporal Punishment ... 172 8.1. Introduction ... 172 8.2. Parental Rights and Corporal Punishment ... 173 8.3. Views of Human Rights Bodies ... 175 8.3.1. View of the Committee on the Rights of the Child on Corporal Punishment ... 175 8.4. Final Remarks ... 178 9. Case Study: Human Dignity and Juvenile Justice... 178 9.1. Introduction ... 178 9.2. General Observations on the Interconnectedness of Child's Dignity and Juvenile Justice ... 179 9.3. Juvenile Justice under International Human Rights Law ... 180 9.4. Child's Dignity and Training of Personnel of Law Enforcement Agencies ... 181 9.5. Deprivation of Liberty and the Child's Dignity ... 182 10. The Relationship between Human Dignity and Article 6(2) in its Capacity as an Economic, Social and Cultural Right of the Child (Basic Health and Welfare Right) ... 184 10.1. The Provision of Health and Other Well-Being Services should Reflect the Human Dignity of the Child both as a Criterion for Quality and as an Aim ... 186 10.2. Significance of the 'Dignity' Foundations of the Child's Economic, Social and Cultural Rights ... 189 10.3. Interaction between the Right to Survival and Development (Article 6(2)), Right to Life (Article 6(1)) and the Child's Dignity ... 190 11. Conclusion ... 191 Chapter 5. Who is Responsible? The Obligation of the State Party to Create Measures and Conditions Necessary for the Survival and Development of the Child ... 193 1. Introduction ... 193 2 I t f I sing Obligati n the St te Pa t 195 2.2. State Obligations and the International Human Rights System ... 196 3. Ways of Identifying the Obligations of the State Party under Article 6(2) ... 198 4. Various Methods for Implementing Article 6(2) ... 200 4.1. The 'Holistic Approach' to the Implementation of the Convention ... 200 4.2. Interdependence of Different Kinds of Rights as a Method for Implementing Article 6(2) ... 200 4.3. The General Principle Capacity and Interpretative Capacity of Article 6(2) ... 202 5. The Standards of 'to the Maximum Extent Possible' and 'to the Maximum Extent of their Available Resources' ... 203 5.1. The Standard of 'to the Maximum Extent Possible' ... 203 5.2. The Standard of 'to the Maximum Extent of their Available Resources' ... 204 5.3. Comparison of the Standard of 'to the Maximum Extent Possible' and the Standard of 'to the Maximum Extent of their Available Resources' ... 205 5.4. Comparison of the Standard of 'to the Maximum Extent Possible' and the Standard of 'to the Maximum of their Available Resources' in the Context of Specific Obligations of the State ... 208 6. The Obligation to 'Ensure' to the Maximum Extent Possible the Survival and Development of the Child and Other Obligations of the State ... 211 6.1. The Obligation to Ensure ... 211 6.2. The Obligation to Ensure in the Context of the Obligations of Conduct and Obligation of Result ... 213 6.3. The Obligation to Ensure in the Context of the 'Obligation Approach' and the 'Enjoyment Approach' ... 214 7. Specific Features of the Obligation to 'Ensure' ... 215 8. The Responsibility of the State to Create Suitable Various Measures and Conditions for the Survival and Development of the Child ... 219 9. Types of Obligations in relation to Particular Rights ... 224 10. Specific Obligations under Article 4 of the CRC ... 226 10.1. Obligations of the State Party in relation to Legislation ... 226 10.2. Administrative Obligations of the State Party under Article 4 of the CRC ... 232 10.2.1. Budgetary Allocations... 232 10.2.2. State Party Policies ... 236 10.3. Other Obligations of the State Party under Article 4 10.3.1. Obligation for Data Collection ... 241 10.3.2. Obligation to Raise Awareness ... 243 10.3.3. Obligation to Identify the Factors that Impede the Implementation of the Convention ... 244 10.3.4. Obligation to Conduct Research and Studies ... 245 10.3.5. Obligation of the State to Monitor the Implementation of the Convention ... 246 11. Conclusion ... 246 Chapter 6. Case Studies on Article 6(2) ... 249 1. Introduction ... 249 2. First Case Study: Climate Change and the Right of the Child to Survival and Development ... 250 2.1. Individuality and Independence of the Right of the Child to Survival and Development ... 250 2.2. Relevant Scientific Facts ... 250 2.3. Causes of Climate Change ... 253 2.4. Climate Change Extremes, Vulnerability and Exposure ... 253 2.5. Adaptation ... 254 2.6. Formulation of a Child's Rights (Right to Survival and Development) Approach to Climate Change ... 258 2.7. Possible Child's Rights Approach towards Developed States... 261 2.8. International Cooperation and Climate Change ... 263 2.9. Human Rights Approaches to Adaptation Options... 265 2.9.1. Specific Adaptation Options for the Survival and Development of the Child ... 265 2.10. Some Difficulties in the Path of the Human Rights Approach . . 265 2.10.1. Litigation and Climate Change ... 265 2.10.2. The Concept of 'Climate Migrants' ... 266 2.10.3. The Rights of Future Generations ... 267 2.11. Conclusion ... 268 3. Second Case Study: Breastfeeding and the Right of the Child to Survival and Development ... 269 3.1. Introduction ... 269 3.2. Formulation of a Rights-Based Approach to Breastfeeding ... 270 3.3. Interaction between the Responsibility of the State and the Responsibility of the Parents ... 274 3.4. Conclusion ... 276 Conclusion ... 277 3. The Independent Article 6(2) ... 278 4. Multi-Identities ... 279 5. Interaction with the Concept of Human Dignity ... 280 6. Special Reference to 'Obligations of the State' within Article 6(2)... 280 7. Suggested Future Research ... 281 Bibliography ... 283 Offi cial Documents... 289

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