How do national courts engage with Convention on Rights of Child?

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This year marks the 30th anniversary of the adoption of the Convention on the Rights of the Child (CRC) by the UN General Assembly. How do countries implement this treaty and how does it relate to their own national legal system? PhD defence on 3 December 2019.

‘For a long time, I had been thinking about the divide between international commitments concerning children’s rights (the UN Convention on the Rights of the Child (the CRC) in particular) and the implementation of these commitments in practice’, PhD candidate Meda Couzens tells. However, giving domestic effect to an international treaty is complex and involves a great number of domestic actors. ‘I decided to investigate closer the contribution of the courts in this process, more closely, considering that the judiciary has become increasingly important in the process of bringing international human rights home. A first step in a court’s engagement with an international treaty is for the court to decide what the domestic legal value or status is of a treaty which is internationally binding on a state, or, put differently, to what extent an international treaty can be applied as law by a domestic court. These aspects are regulated by the domestic rules for the reception of international treaties in the domestic legal order. They differ from state to state according to whether the system is a monist, a dualist or a hybrid legal system. These rules of reception and their impact on the domestic effect of the CRC formed the general legal framework within which the research was conducted.’

Monist systems are those where ratified international treaties are automatically a part of the domestic legal order and may be applied directly by courts. In dualist systems, international treaties cannot be directly applied as law in the absence of incorporation or transformation into the domestic law by the legislature. In practice, legal systems are rarely purely monist or purely dualist.

The researcher decided to focus on three legal systems: Australia, France and South Africa. These jurisdictions represent three different reception models of international treaties in the domestic legal order: dualist, monist and hybrid respectively. The core of the thesis contains three case studies on the application of the CRC by courts of highest jurisdiction in the legal systems mentioned. In these case studies, Couzens describes and analyses why, how, and with what consequences, the courts have engaged with or applied the CRC.

Couzens found that the reception rules for international treaties could only partially explain the manner in which courts engaged with the Convention, and that many other factors, formal and informal, influenced the application of the CRC by the domestic courts. ‘I found that courts in the three countries did not use all avenues open to them to give effect to the CRC, but also that they were creative at times and used the strengths of their particular system to give effect to the Convention. In this way, the courts compensated to a certain extent for the vulnerability of domestic legal frameworks which were not sufficiently cognizant of children’s rights.’ An interesting aspect in relation to all three jurisdictions was the popularity with the courts of the concept of the best interests of the child as enshrined in Article 3 (1) of the CRC. This indicates the great potential for further developments in relation to the rights of children encapsulated in the general principles of the Convention.

Added protection

Among other things, the thesis recommends that more attention be given to the special identity of the CRC in relation to other human rights treaties in order to identify the added protection which it offers to children when compared with other domestic or international instruments. This is necessary in order to ensure that the Convention is not sidelined by courts in favour of more well-known, better judicially-developed domestic or international instruments. It is also recommended that courts pay more attention to the interpretation of the CRC by the CRC Committee (the group of experts that monitors the implementation of the CRC by states). Taking the necessary caution when considering the diversity of domestic legal systems, the thesis invites to reflection on the value of domestic courts learning from each other’s experiences in the application of the Convention (i.e. the possibility to engage in a CRC dialogue).

According to Couzens, the thesis will help to see the role of the courts in giving effect to the CRC in a new light. ‘The research is useful in its presentation of the constraints and the opportunities of the courts to apply the Convention. I hope that my analysis will encourage other researchers and perhaps legal practitioners to search and use domestic legal strengths with a view to making the application of the CRC by courts more effective.’

Text: Floris van den Driesche

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