Best Interests of the Child
The Best Interests of the Child
Literal Analysis, Function and Implementation
Working Report 2010
The Best Interests of the Child
Literal Analysis, Function and Implementation
Jean Zermatten
Plan of the presentation
1. Introduction: the child as a subject of rights
2. The general principles of the Convention on the Rights of the Child
3. The best interests of the child (Article 3) a) The concept and a literal analysis Concept Literal analysis Paragraph 1 Paragraphs 2 and 3 “Best interest” and other articles of the CRC
b) Functions and characteristics c) Objectification of the principles: the example of the UNHCR d) Art. 3 and 12 of the CRC: opposition or complementarity?
4. The best interests’ principle: general measures of implementation 5. Conclusion
1
Copyright jz, nov. 09
Page
I.
Introduction
The Convention on the Rights of the Child (hereinafter CRC) is not a neutral text simply enumerating a list of rights. Without doubt, the Convention is the enumeration of those rights to whic the child is entitled, but it is also much more than this. The CRC creates a new democratic dynamic. In the past, the child, as described by the Geneva Declaration (1924) and the Declaration on the Rights of the Child (1959) was seen as an object in need of attention and protection. Since the promulgation of the CRC in 1989, however, the child has been understood to be a subject of rights. The near-universal ratification of this human rights instrument lends significant force to the new status of the child. This latter statement is not a rhetorical declaration. Through different principles and articles, the CRC has established this concept of the child as a subject of rights. The foundation of this new juridical position lies, in my opinion, in two interdependent articles; Article 3 (the best interests of the child) and Article 12 (the views of the child), which together recognize the right of the individual child to express
Literal Analysis, Function and Implementation
Working Report 2010
The Best Interests of the Child
Literal Analysis, Function and Implementation
Jean Zermatten
Plan of the presentation
1. Introduction: the child as a subject of rights
2. The general principles of the Convention on the Rights of the Child
3. The best interests of the child (Article 3) a) The concept and a literal analysis Concept Literal analysis Paragraph 1 Paragraphs 2 and 3 “Best interest” and other articles of the CRC
b) Functions and characteristics c) Objectification of the principles: the example of the UNHCR d) Art. 3 and 12 of the CRC: opposition or complementarity?
4. The best interests’ principle: general measures of implementation 5. Conclusion
1
Copyright jz, nov. 09
Page
I.
Introduction
The Convention on the Rights of the Child (hereinafter CRC) is not a neutral text simply enumerating a list of rights. Without doubt, the Convention is the enumeration of those rights to whic the child is entitled, but it is also much more than this. The CRC creates a new democratic dynamic. In the past, the child, as described by the Geneva Declaration (1924) and the Declaration on the Rights of the Child (1959) was seen as an object in need of attention and protection. Since the promulgation of the CRC in 1989, however, the child has been understood to be a subject of rights. The near-universal ratification of this human rights instrument lends significant force to the new status of the child. This latter statement is not a rhetorical declaration. Through different principles and articles, the CRC has established this concept of the child as a subject of rights. The foundation of this new juridical position lies, in my opinion, in two interdependent articles; Article 3 (the best interests of the child) and Article 12 (the views of the child), which together recognize the right of the individual child to express
Links: UNHCR Guidelines on Determining the Best Interests of the Child, May 2008. UNHCR, op. cit.. 9. See General Comment No. 12 (2009), The right of the child to be heard, (CRC/C/GC/12). Van Bueren, op. cit. p. 35. See also Hokkanen vs Finland (1993) 19 EHRR 139, para. 61. Idem, para. 45. Idem, para. 46. General Comment No. 7 (2005), Implementing child rights in early childhood (CRC/C/GC/7/Rev.1), Page