Human Rights Bodies Make Unprecedented Strides in Protecting Children’s Rights
At the end of January, three international human rights bodies took substantial steps to ensure protection of children’s rights. On January 25, 2018, the United Nations Committee on the Rights of the Child (CRC) issued its first decision on the merits in the case K.Y.M. v. Denmark, holding that Denmark violated the International Convention on the Rights of the Child for failing to consider the best interests of a child during the course of proceedings over whether to deport the child and her mother. See Committee on the Rights of the Child, K.Y.M. v. Denmark, Communication No. 3/2016, Views of 25 January 2018, UN Doc. CRC/C/77/D/3/2016, para. 11.9. The decision held that Denmark failed to consider the likelihood that the applicant’s daughter would be subjected to female genital mutilation if she were returned to Somalia. See id. at para. 11.9. The complaint was the first to reach the merits stage before the CRC since the Committee was first authorized to receive complaints in 2014 under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.
The following week, on January 30, 2018, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and the African Commission on Human and Peoples’ Rights (ACHPR) published their first ever joint General Comment, which elaborates on States’ obligation to end child marriage. [ACERWC Press Release] The General Comment addresses the causes and impact of child marriages, and provides guidance to States on their obligations to protect children at risk of child marriage by implementing legislative, institutional, and general reform measures. [ACERWC Press Release]
The Case of K.Y.M. v. Denmark
The case of K.Y.M. v. Denmark concerned a mother and daughter who both faced deportation from Denmark to Somalia. See Committee on the Rights of the Child, K.Y.M. v. Denmark, para. 1.1. The mother, a Somali national, submitted the application on behalf of her daughter, who was born in Denmark, alleging that her daughter would be subject to female genital mutilation if Denmark returned them to Somalia. See id. at paras. 1.1, 2.2. The author pointed to the fact that although female genital mutilation is illegal in Somalia, 98 percent of women in Somalia have been subject to the practice of female genital mutilation. See id. at para. 3.2. The mother alleged that deporting her daughter in light of the high risk of female genital mutilation would violate her daughter’s rights under Article 2 (obligation of non-discrimination), Article 3 (obligation to consider the best interests of the child), and Article 19 (obligation to protect children against harm or violence) of the Convention on the Rights of the Child. See id. at para. 3.1.
The CRC approached this case by looking to its previous interpretation on the Convention on the Rights of the Child. In the CRC’s General Comment No. 6, the CRC previously found that the Convention requires that States “not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child.” See id. at para. 11.3. The CRC also previously held, in General Comment No. 18, “that female genital mutilation may have various immediate and/or long-term health consequences; and that the legislation and policies relating to immigration and asylum should, in particular, recognize the risk of being subjected to harmful practices.” See id. at para. 11.4. The CRC concluded that the Convention requires that when reasonable doubt exists that the State receiving deportees cannot adequately protect the child against irreversible harm, such as female genital mutilation, the sending State should refrain from returning the child. See id. at para. 11.8(c).
Although the CRC rejected as manifestly unfounded the applicant’s Article 2 (right to non-discrimination) claim, the CRC held that the deportation proceedings against the applicant and her daughter failed to consider the best interests of the child and failed to take appropriate safeguards to ensure the child’s wellbeing upon transfer to Somalia, in violation of articles 3 and 19 (obligations to consider the best interests of the child and to protect children against harm or violence) of the Convention on the Rights of the Child. See id. at paras. 10.3, 11.9. Because the Denmark deportation proceedings only considered the fact that female genital mutilation is illegal in Somalia and did not consider the fact that these laws are rarely enforced, Denmark did not consider the specific risk of harm to the applicant and her child. See id. at para. 11.8(a).
ACHPR & ACERWC General Comment
The ACHPR and the ACERWC’s joint General Comment addresses States’ obligations with respect to ending child marriage under Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), a treaty for which the ACHPR has primary responsibility for interpreting, and Article 21(2) of the African Charter on the Rights and Welfare of the Child, which the ACERWC interprets. [ACERWC Press Release] See ACHPR & ACERWC, Joint Comment on Ending Child Marriage (2018), para. 1.
The joint General Comment focuses on the obligation of States parties to end child marriage by implementing three types of reform measures: legislative measures, institutional measures, and other general measures. See ACHPR & ACERWC, Joint Comment on Ending Child Marriage, para. 1. The ACHPR and ACERWC identify three legislative measures necessary to address the problem of child marriage. First, States must ensure that marriage of children under the age of 18 is prohibited, without religious, customary, or traditional exceptions. See id. at paras. 18-20. Second, State legislation must require that marriage involves free and full consent of both parties, and that children under the age of 18 are unable to provide consent to a marriage. See id. at paras. 21-23. Lastly, the General Comment recommends that States enact constitutional reforms that specify a minimum age of 18 for marriage. See id. at paras. 24-25.
The General Comment notes that legislative measures, alone, are not sufficient to fulfill a State’s obligations. See id. para. 26. Full and effective compliance requires that States also take institutional measures that ensure implementation and enforcement of policies and laws directed at ending child marriage. See id. The General Comment identifies the need for institutional measures on birth registration, age verification, marriage registration, full enforcement of laws, equal access to and promotion of education, improved access to health services, improved access to justice for victims of child marriage, improved methods for redress and support for those children already married, capacity building for State officials, improved data collection, and improved resource allocation towards measures that address child marriage. See id. at paras. 25-45.
The General Comment also identifies general measures that States must take to address the root causes of child marriage. See id. at para. 46. The General Comment lists poverty, traditional gender roles, and dowries as factors that lead to child marriage. See id. paras. 46-50. Additionally, the General Comment observes that all forms of harmful practices towards girls also contribute to the perpetuation of child marriage, including abduction and kidnapping for purposes of marriage, female genital mutilation, virginity testing, breast ironing, forced feeding, forced marriages of persons over the age of 18 years and tourist marriages. See id. paras. 48-49. The measures the General Comment identifies to address these root causes are creating early warning programs, promoting the participation of parents, providing reparations to victims, and undertaking awareness campaigns. See id. paras. 51-62.
The United Nations Committee on the Rights of the Child is a treaty body that monitors implementation of the Convention on the Rights of the Child and issues opinions on complaints alleging violations of that treaty against Member States. The Committee also monitors implementation of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. See IJRC, Committee on the Rights of the Child.
The ACHPR is a quasi-adjudicatory body in the African human rights system with a mandate to promote and protect human rights in the 54 Member States to the African Charter on Human and Peoples’ Rights. It accepts and considers complaints and reviews State reports on implementation of the Charter. See IJRC, African Commission on Human and Peoples’ Rights. The ACERWC’s mandate is to promote and protect the rights in the African Charter on the Rights and Welfare of the Child. The ACERWC monitors implementation of the rights in the Children’s Charter and interprets its provisions. See ACERWC, The Mandate.
For more information on the Committee on the Rights of the Child, the African Commission on Human and Peoples’ Rights, or Children’s Rights, visit IJRC’s Online Resource Hub.