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| The implementation of the UN convention on the Rights of the Child in the CBSS member states. 4/1/97 |
The implementation of the UN convention on the Rights of the Child in the CBSS member states with regard to specific articles, (sexual abuse, violence in media, children of asylum-seekers). A survey with recommendations, April 1997. Commissioner of the CBSS on Democratic Institutions and Human Rights, including the Rights of Persons belonging to Minorities
Commissioner of the CBSS on Democratic Institutions and Human Rights, including the Rights of Persons belonging to Minorities.
OLE ESPERSEN
The implementation of the UN Convention on the Rights of the
Child in the CBSS member states with regard to specific articles
(Sexual abuse, violence in media, children of asylum-seekers)
A survey with recommendations
April 1997
The Council of the Baltic Sea States (CBSS) was established in 1992.
Members: Denmark, Estonia, Finland, Germany Iceland, Latvia,Lithuania, Norway Poland, Russia, Sweden, European Commission
Visiting address:
Amagertorv 142
DK-1160 Copenhagen K
Postal address:
P0. Box 1165
DK-1O1O Copenhagen K
Tel (45) 33 91 22 88
Fax (45) 33 91 22 96
E-mail: cbss-dk@inet.uni-c.dk
Table of content
1 Introduction
1.1 Purpose of this survey
1.2 The UN Convention on the Rights of the Child
1.3 The UN Committee on the Rights of the Child
2 Relevant provisions of International Conventions or standards
2.1 The UN Convention of the Rights of the Child (1989)
2.2 Council of Europe, Parliamentary Assembly, Recommendation 1286 (1996) on a European Strategy for Children
2.3 The UN Convention relating to the Status of Refugees (1951)
2.4 The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992)
3 Some aspects of the implementation of certain articles of the Convention on the Rights of the Child in the CBSS member states
3.1 Certain general problems related to the child
3:2 Sexual abuse of children
3.3 Violence in media
3.4 The status of asylum-seeker and refugee children
4 Conclusions and recommendations
4.1 General remarks (including a recommendation)
4.2 Recommendations on each separate area dealt with in this survey
4.2.1 Sexual abuse
4.2.2 Mass media
4.2.3 Education of asylum-seeker children
4.3 Implementation
Annex:
1 Implementation of Article 34 in CBSS Member States
2 Implementation of Article 17 in CBSS Member States
3 Implementation of Article 22 in CBSS Member States
1 Introduction
1.1 Purpose of this survey
The purpose of this survey is to evaluate the implementation of certain articles of the UN Convention of the Rights of the Child in CBSS member states. These main areas of study are:
- sexual abuse of children, child prostitution and child pornography;
- the role of mass media (Particularly visual) and the protection of children against violence and other harmful influences in mass media; and
- the status of asylum-seeker and refugee children, especially their access to education.
The country implementation reports (the annexes) are predominantly based on the respective country's initial report to the United Nations Committee on the Rights of the Child (in case these reports have been available) and on other relevant international information. The Commissioner has asked directly for information from those countries who have not yet sent their initial report to the UN Committee or where some relevant information has been lacking in the reports. The information received by 15 April 1997 is included to the annexes.
1.2 The United Nations Convention on the Rights of the Child
The first standard-setting United Nations instrument to protect the rights of children was the 1959 Declaration of the Rights of the Child which offered a framework for the rights of the children. The United Nations commemorated the twentieth anniversary of the adoption of the declaration by proclaiming the year 1979 the International Year of the Child. Many initiatives were undertaken and the Government of Poland made the first draft for a convention on the rights of the child for the UN Commission on Human Rights. The Commission was given the task to draft the final text of the convention and it completed its work in 1989.
The General Assembly of the United Nations adopted unanimously the Convention on the Rights of the Child (A/RES/44/25) on its meeting on 20 November 1989. The Convention is probably the most complete statement of children's rights ever made and is the first to give these rights the force of international law.
The Convention is also the most widely accepted human rights treaty. It has been ratified by 187 states (including all the CBSS member states). Only five countries in the world have not yet ratified the treaty i.e. Oman, Somalia, Switzerland, United Arab Emirates and the United States of America. Switzerland and the United States of America have signed the Convention indicating their intention to ratify it.
After its adoption by the General Assembly, the Convention was opened for signatures on 26 January 1990. It entered into force on 2 September 1990.
1.3 The United Nations Committee on the Rights of the Child
The United Nations Committee on the Rights of the Child was established in March 1991. It is composed of ten independent experts nominated by the States Parties. The main aim of the Committee is to monitor the progress made by the States which ratify or accede to the Convention (States Parties) in fulfilling their obligations as well as monitor the actual implementation of the Convention. The Conference of the States Parties decided on 12 December 1995 to enlarge the membership of the panel to 18 experts. To enter into force, the amendment must be approved by two thirds of the States parties. The enlargement has already been endorsed by the United Nations General Assembly at its session.
States Parties accept the duty to submit regular reports directly to the Committee on the steps they have taken to put the Convention into effect and on progress in the implementation of children's rights. The first report of a country is due two years after it has ratified the Convention. Reports must be made from then onwards at intervals of five years. These reports are to be made public and given wide national distribution. The Committee may ask States Parties to add to the information they give in their reports. It may also make suggestions and recommendations to the governments of these countries and to the United Nations General Assembly.
2 Relevant provisions of International Conventions or Standards
The following provisions are relevant for this survey:
2.1 The United Nations Convention of the Rights of the Child (1989)
Article 19:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 34:
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
Article 17:
States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:
(a) Encourage the mass media to disseminate information and maternal of social
and cultural benefit to the child and in accordance with the spirit of article 29; (1))Encourage international cooperation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;
(c) Encourage the production and dissemination of children's books;
(d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;
(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.
Article 22:
1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are parties.
2.2 The Council of Europe, Parliamentary Assembly? Recommendation 1286 (1996) on a European strategy for children
Article 8, v.:
(The Committee of Ministers should strongly urge these states...) to inform children about the means and remedies available to them in the event of violation of their fundamental rights and, for example, to extend the provision of free help-lines, specialist advocates and child friendly judicial and administrative systems which recognise the claims of individual children for protection against all forms of abuse.
Article 8, iv.:
(...)to encourage the media, notably visual, to promote children's right to a healthy and balanced development, and in particular in products intended for children to eliminate violence and to illustrate positive social values.
Article 8, ii...
(...)to guarantee to all children the right to free and high quality education for pre-school, primary and secondary education.
Article 8, x...
(...)to pay particular attention to the situation and the specific needs of immigrant and refugee children and minority and marginalised children.
2.3 The United Nations Convention relating to the Status of Refugees (Geneva 1951)
Article 22; Public education:
1. The Contracting States shall accord to refugees the same treatment as it is accorded to nationals with respect to elementary education.
2.4 The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities (1992)
Article 4..
3. States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.
4. States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing in their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole.
3. Some aspects of implementation of certain articles of the UN Convention of the Rights of the Child in the CBSS member states
3.1 Certain general problems related to the child
According to the Convention, Article 1 "A child means every human being below the age of eighteen years."
The point of basis of the Convention is that every child has the inherent right to life. It derives from the Convention that the child is a subject of law and that all human rights - civil, cultural, economic, political and social - necessary to his or her survival, development, protection and participation are interdependent and indivisible.
The rights of the child differ from the rights of adults because children are more invisible in our societies and they do not or are even incapable of demanding the implementation of their rights. Violations against children's rights should be regarded more serious because children are easier targets and more vulnerable than adults. The international community and societies often tend to react slowly or even deny grave violations against children when such violations occur. There is also an understandable disbelief that such horrors can be perpetuated against children.
The situation of children in some developing countries is very serious. But many children in the CBSS member states face big problems as well.
The Convention acknowledges a child's right to a decent standard of living, nutrition, clothing and housing. The economic recession in many countries has led to a situation where many economical cuts have had to be made also in the social welfare system. Unfortunately cuts in the social budgets have a direct influence on a child's life and his or her well-being. The savings in day-care, education, health care services and children's protection have already caused problems in the everyday life of many children and families. Also, increased unemployment means lower living standards to the children.
The large number of divorces also has an effect on children, not only mentally but also economically. Single-parent households might more often face social, financial and other problems than other families.
The international community and national states have only recently started to put more emphasis on children's issues and problems. The issues related to children are nowadays recognised to have a special character and new ways and methods have to be found in order to solve the existing problems. Some of the CBSS member countries have established a special Children's Ombudsman system. This is the situation at least in Norway, Sweden and Iceland.
In Norway the establishment of the Office of the Commissioner for Children was an important event in connection with policies related to children. The Office was established in 1981 and was the first of such office in the world. The idea behind this was to promote the interests of children in relation to public and private authorities, and to monitor the development of the conditions under which children grew up. The Commissioner for Children does not deal with complaints related to the specific areas of law, but serves as a spokesman for children's concerns in most aspects of society. The role of the children's ombudsman as a spokesman, and as the person responsible for safeguarding the rights of children, applies to all areas of Norwegian legislation that effect children.
The law has given the Commissioner for Children the freedom of action necessary for his or her position. The Office of the Commissioner for Children is part of the Ministry of Children and Family Affairs.
The only areas that are not the concern of the Commissioner are individual family conflicts and matters that are subjects of legal proceedings. The Commissioner for Children must therefore consider all areas of society, make people aware of any developments that are harmful to children, and propose changes in order to improve the situation of children. The Commissioner must be alert to the consequences and implications of all areas of Norwegian legislation and regulations which may affect children. The Commissioner for Children has no powers of binding decisions, nor does he or she have the right to rescind the decisions of other authorities. In consequence, the main instruments at the disposal of the Commissioner are information, acting as spokesman for children, and issuing well-documented statements and recommendations.
The Parliamentary Assembly of the Council of Europe has also paid attention to children's matters and proposed in its Recommendations 1121(1990) and 1286 (1996) to create a European children's ombudsman in the framework of the Council of Europe.
3.2 Sexual abuse of children
Sexual abuse and exploitation of children are big problems all over the world. The recent shocking news of children abused by paedophiles has increased the awareness of the magnitude and seriousness of this problem. Sexual abuse is often connected with situations of violence within the family and sexual exploitation often implies certain forms of trade and remuneration.
The increase in the number of cases involving sexual offences against children is not necessarily indicating that the number of such offences has risen, but rather as a consequence of there being a far more open discussion of these matters than there used to be.
The basic premise that children have a fundamental right to their personal integrity, and to freedom from exploitation and abuse, follows from an absolute certainty that violations of these rights damage the children concerned. All the surveys made in this field refer to the distressing consequences for children being abused this way. These include physical, developmental, social and profound psychological and emotional problems.
Most of the cases of sexual abuse of children appear at home or at other familiar places to the child; child abusers are often close relatives to the child: fathers or mothers, stepfathers, brothers etc. The exact number of cases of sexual abuse is very difficult to verify. For example in Finland about 150 cases of sexual abuse of children are reported every year. It is estimated that the real figure is much bigger but most of the cases are never reported to police or other authorities.
Typical problems to cases of sexual abuse of children seem to be that:
(i) people related to the case are denying or minimizing the problem,
(ii) there is a tendency to overreact, or to read more into a situation than is warranted by the facts (especially in divorce cases),
(iii) there might be difficulties in cooperation between authorities, and
(iv) there might be shortcomings in professional skills.
The range in the estimates of the numbers of children that are being abused through commercial sexual exploitation is huge. However, even with the most restrictive of estimates, it is clear that this represents an immense problem, which is manifested in a vast number of countries in the world, and which in almost all instances is considered of being escalating.
The sexual exploitation of children often involves child prostitution which is a growing problem. According to a recent Swedish study (Sexhandel med barn I några östeuropeiska länder, Helena Karlen and Christina Hagner, ECPAT, March 1996) sex trade with children has extended to new geographical regions. There are more signals from Eastern Europe showing that child prostitution is growing in that area. According to some estimations some 30 % of prostitutes in Western Europe are children (coming mainly from Eastern parts of Europe).
The Norwegian Save the Children organization has identified three groups of children who are at particular risk from sexual exploitation: street children, the children of women who are themselves in prostitution and housemaids.
Child pornography is more widespread in industrialised countries than in developing countries. Pornography may be defined as any representation of any degrading sexual practice for the purposes of pleasure or profit, and it can involve much commercial activity (Geraldine Van Bueren, The International Law on the Rights of the Child, 1995).
The CBSS member states have an absolute prohibition in their respective Criminal Codes against sexual intercourse and other sexual relationship with a child under the age of 15 years. Children are usually protected from sexual abuse by introducing penalties. Depending of the character of the offence and the Penal Codes in various member states, the penalty is a monetary fine or imprisonment.
One of the measures that seem to be necessary with regard to all the member states, is making it a criminal act to possess child pornography and to purchase sexual services from child prostitutes. Sexual offences against children should be made subject to public prosecution.
Law enforcement is vitally important in this area in the detection, prosecution and application of sanctions to offenders. The Penal Codes should have clear and unambiguous provisions to make all kind of sexual abuse of children, child pornography and child prostitution illegal in the respective countries. However, it should be observed that national actions are limited and cannot always be as effective as needed. In order to combat child prostitution, trafficking and pornography, countries should unite their efforts, create laws and regulations, harmonise relevant legislation in this field and reinforce transfrontier judicial and police cooperation. In this respect, the resolution by the Parliamentary Assembly of the Council of Europe 1099 (1996) where the Assembly fully supports the initiatives aimed at improving the Europol system, is very important.
In order to combat sex tourism, the criminal laws should be extended to encompass sexual abuse committed against children in foreign countries as a criminal offence even if the particular action is not punishable under the law of the foreign country as already has been done for example in Germany. Germany has also appealed to the countries which were primary destinations of sex tourism to assist the relevant German authorities in implementation of this amendment to the German law. It might also be helpful to conclude relevant bilateral agreements with the destination countries of sex tourism.
Extraterritorial jurisdiction raises difficult questions. However, taken into consideration the nature of this problem, any possible means should be seriously considered.
3.3 Violence in media
The importance of mass media has grown. The access to media has become easier for everyone, including children. According to various surveys and researches children spend today more time watching television than ever before. The content of television programmes has become more violent partly because most of the disputes and wars going on in the world are recorded and shown on television and partly because the films and tv-series shown on television have become more brutal. It has been estimated that an average American child now reaching the age of eighteen has witnessed some 18.000 simulated murders on television. Surveys made in our member states show a similar trend.
It is still controversial to estimate the impact of mass consumption of violent images. However, according to some surveys, there is no doubt that there are a large number of individual cases of violent crime inspired by particular films.
It also seems to be a controversial question to decide who is responsible for protecting children against harmful influences of mass media. Some are of the opinion that the responsibility of children's education and their viewing habits rests on their parents or other guardians of the child, while some allege that the society has the main responsibility through legislation and other preventive measures. Some have also proposed that the mass media and the producers themselves should develop a "code of conduct" and take their responsibility seriously.
In every member state of the CBSS mass media are independent of the state. However, in most of the countries, there are laws to prohibit manufacturing and
showing printed material, films, audio and video cassettes and objects which promote cruelty and violence and are intended for children. Persons or organizations who provide such products are to be punished or are required to terminate such activity.
In most of the member states films, and sometimes also videos and other visual programmes are subject to censorship. The authorities may order the removal of certain scenes or impose a minimum age for viewers permitted to see it.
The publication, distribution and sale of child pornographic material is nowadays criminal in most of the member states. In practice, supervision and control are haphazard and the interpretation of pornography varies from region to region and has been changing with the times.
3.4 The status of asylum-seeker and refugee children
The number of people who have had to flee their home countries in search of protection in fear of persecution and as a result of violent upheaval, civil war or disasters has increased over the past decades. The worldwide number of refugees has increased to an estimated 18 million in 1996.13 Western European countries received 692 686 applications for asylum in 1992 compared to 65 400 in 1983.
Many European countries have introduced changes to their asylum laws in order to make them more restrictive as a response to the vast increase in the number of asylum applications. This has led to a situation where certain deficiencies in the asylum determination procedure and asylum laws in different countries can result in the violation of the human rights of refugees and asylum-seekers - as it is stated in the Report on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe (Doc. 7783, 26 March 1997) by the Parliamentary Assembly of the Council of Europe.
Children constitute a particularly vulnerable group among the refugee population. They will often suffer serious mental or physical traumas and the conditions under which they flee and take refuge most often deprives them of safety, stability and proper parental care. Moreover, the disruption of their lives causes setbacks in their general education and development into mature and responsible adults.
The conditions of asylum-seekers often comprise long waiting periods while asylum applications are being processed and where asylum-seekers live in camps, settlements or sometimes in detention or detention-like facilities. During this period, which may run into several years, the children are generally isolated from the social life of the host country, not being able to participate adequately in educational, recreational and other social activities. In a number of refugee settlements access by children to basic health care may also be below acceptable standards. Long period of waiting in crowded camps and confined housing space and with heavy psychological strain being put on families, is likely to create various psychological and behavioural disorders in children.
A considerable number of children have become separated from their parents during flight or are sent away to foreign countries as unaccompanied minors, where they remain for long periods without contact to their parents. Children may also become victims of exploitation during flight or during their stay in ill-controlled refugee camps.
Such strain put on children will often present itself later as problems in adaptation and integration in the asylum country once they obtain protection there.
Children of asylum-seekers and refugees therefore present particular problems which must be addressed by governments in asylum countries.
In most of the member states the refugee children of school age are entitled to education and they start school at the level corresponding to their age or abilities. School education is provided either in separate groups or in regular classes. This is the case for example in Finland and Norway where also children who have applied for asylum start school while waiting for the decision. Instruction in their mother tongue is offered to the refugee children in most of the member states.
In Norway many publicly financed measures are indirectly aimed at immigrant children (including refugee and asylum seeking children), e.g. information to parents in numerous languages pertaining to pregnancy, childbirth, nutrition, education etc. In addition, the municipalities offer public interpreting services to parents and children. Government support is available for mother tongue language instruction, instruction in Norwegian, and for making teaching and education more readily accessible to foreign-language pupils at the preschool, primary school, and lower and upper secondary school level.
4. Conclusions and Recommendations
4.1 General remarks (including a recommendation)
The three special subjects of this survey were chosen because they all represent problems of an increasing importance and because they to a larger or smaller extent are areas in which a cooperation between the eleven member states of the CBSS will be beneficial.
The expanded travel activity between a larger number of countries has, as experience clearly shows, increased the risk of children being exposed to especially commercial sexual exploitation.
The growing use of information technology and the decreasing border control have caused an expansion of mass media and an extensive dissemination of video tapes; on the media market the competition is harder and methods used are more cynical.
Disturbances and bad economic conditions in many areas in the world have caused a growing number of refugees and asylum-seekers. At the same time unstable economic conditions in many of our countries have created serious problems with regard to providing education for children of refugees and asylum-seekers.
When discussing how to fight sexual abuse of children it is obvious that international cooperation is not only beneficial - it is absolutely essential. But also efforts to avoid the risk of children being exposed to and influenced by violence in mass media can be improved by means of international cooperation. Exchange of experiences and financial support to programmes for the education of children of refugees and immigrants could also prove valuable.
This is the background for choosing these three areas for my survey. I acknowledge that all three areas are complex and dealing with them will require both financial and otherwise demanding efforts. To address these problems adequately will demand more than just simple changes in legislation. Continuous attention should be given to the problems, and various concepts of cooperation should be established and revised and of course the required changes in legislation should be carried out.
Establishing an "Ombudsman for Children" in countries where no such institution exists would ensure a continued interest and safeguard of children's rights. (Reference is made to page 9 of this survey in which the Ombudsman for Children is mentioned). Such an Ombudsman will have other duties than the Parliamentary Ombudsman, who as a primary task deals with complaints on public administration. An Ombudsman for Children does not necessarily have to be independent of the Government. He should be required and obliged to follow legislation, administration and development within his sphere of interest:
children's rights and their welfare. He should have the opportunity to comment on proposed legislation and on his own initiative to suggest legislation or other measures in this field.
In order to contribute to the systematic and permanent national observance of the obligations in the Convention on the rights of the child I recommend that the member states which do not have an Ombudsman for Chi
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