by AB Singh
Abstract
This paper presents the historical development of UNCRC with the principles and theoretical discussion underlying it. It also discusses the controversies and confusion that lie in certain articles of the Convention. Furthermore, it reflects on how UNCRC has been a crucial instrument in improving children’s everyday life around the world, particularly in context to Nepal.
1. Introduction
The UN Convention on the Rights of the Child (UNCRC) is said to have brought changes in viewing children as well. It has helped people believe that children are also active, competent human beings, not passive becomings. They are also independent right-holders human beings. They should be let involve in the issues that concern and affect them. These notions have appeared noticeably in sociologies of childhood after the introduction of the UNCRC.
The Convention has been the first powerful international legal instrument to ensure the rights of children across the world. It has incorporated full range of human rights-civil, cultural, economic, political and social rights. The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. It protects children’s rights by setting standards in health care; education; and legal, civil and social services.
So, the UNCRC has been a vital legal instrument in protecting and promoting the rights of the children around the world. It has been successful in placing the children’s issues at the centre of the mainstream human rights agenda. Admitting its paramount importance, James P. Grant, the third Executive Director of the UNICEF, as cited in Fottrell (2000), has termed the UNCRC as the ‘Magna Carta for children’. In contrast, the UNCRC has recently been criticized for not having the provision for lodging individual complaints against child right violators and being more inspirational and conditional, and less realizable.
2. Historical background
The discussion about the rights of children is not a recent one. The advocacy of children’s rights began even before the industrial revolution. In the 1760s, Jean-Jacques Rousseau argued that children had a right to childhood and right to enjoy it, which had a marked influence in child-rearing practice. By 1830s Rousseau’s ideas were initially applied by better off parents and later all reformers to all children. Elizabeth Barrett Browning’s famous poem ‘the cry of the children’ gave a strong voice to advocacy of children rights too (Cunningham and Stromquist, 2005).
Child labour was extreme during the 1830s (Cunningham and Stromquist, 2005). It made many child-right activists and writers raise their voice against extreme exploitation of children in the industrial economics of western world. An article entitled ‘The Rights of Children’ appeared as early as June 1852, and in France Jean Valles attempted to establish a league for the protection of the rights of children in the aftermath of the Paris Commune (Freeman, 1992). This was, as Freeman describes, also the period of the child saving-movement which led to the development of juvenile justice and establishment of compulsory education.
Around the turn of the century a considerable amount of attention was paid in the protection of children. The ‘child protection’ and ‘compulsory school’ laws were passed around everywhere in the industrialized world, particularly in the UK. The book ‘The Century of the Child’ published in 1903 by Ellen Key, a Swedish feminist, brought the issues of the rights of children into limelight in the international arena of discussion. In 1902 the Hague Conference on Private International Law considered ‘interest of the child’ as an important criterion in the convention on guardianship of minors (Verhellen, 2006).
Until 1918, international discussions on child labour and their protection were largely confined to Europe and areas of white settlements outside it. International Labour Organization (ILO), established in 1918, in its first conference in Washington, set a minimum age of 14 for employing children. It was the first legal provision for the protection of the children mainly from labour exploitation (Fottrell, 2000). This is very closely linked to the children’s right not be exploited in any kind of productive work.
In 1920, Eglantyne Jebb, the president of Save the Children Fund decided to set up the Save the Children International Union. This international organization soon had numerous national sections dealing with the post-war plights of children. The five fundamental aims of the organization were put into five-points programme called the ‘Declaration of the Rights of the Child’ (Verhellen, 2006).
1. The child must be given means needed for normal development, both materially and spiritually.
2. The child that is hungry should be fed; the child that is sick should be helped; the erring should be reclaimed; and the orphan and homeless child should be sheltered and succoured.
3. The child must be the first to receive relief in times of distress.
4. The child must be put in a position to earn livelihood and must be protected against every form of exploitation.
5. The child must be brought be in the consciousness that its best qualities are to be used in the service of its fellowmen.
Verhellen (2006, p. 64)
The notion of the child as an independent-right holder emerged in international law along with Declaration on the Rights of the Child, which adopted the five-points programme set by Eglantyne Jebb, passed by League of Nations in 1924. This was one of the earliest international human rights instruments which was essentially paternalistic and welfare oriented and its conceptualization of the child stressed vulnerability and the emphasis was on protective strategies (Fottrell, 2000). And the Declaration points out adults obligations to assert the rights of the children. Moreover, the Declaration was non-binding and few States incorporated it into their domestic legislation. That’s why it had limited impact on the practice of States or international organizations.
Ten years later in 1934, the Declaration was reconfirmed by the League of Nations’ General Assembly and the States promised to enact its principles in their own legislation (Verhellen 2006).
Similarly, the Universal Declaration of Human Rights (1948), a non binding resolution implicitly raised the issues of children’s rights. The Declaration states, ‘Motherhood and Childhood are entitled to special care and assistance. All children, whether born in or out of wed lock, shall enjoy the same social protection’ (Article 25; 2).
Although the rights of children were implicitly included in this Declaration, it was felt by many to be insufficient and that special needs of children justified an additional, separate document. In November 1958, the UN General Assembly adopted the second Declaration of the Rights of the Child. This consisted of ten principles and included the guiding principle of working in the best interests of the child. However, this Declaration was not legally binding and was only a statement of general principles and intent.
Up to the 1970s the debates and discussions about the child as a rights-holder, as Fottrell (2000) mentions, was confined very much to the domestic arena in a few Western States. The children‘s rights did not feature highly on the human rights agenda on the international level; they were a matter of particular concern to humanitarian organizations.
There emerged a coherent and robust movement for the empowerment of children in political, civil and social contexts in the US in 1970s. This made a move from the welfare-oriented paternalism, to which Archard termed ‘the caretaker thesis’ of earlier campaigns towards a radical liberation-oriented approach, the cornerstone of which was the recognition of the child’s autonomy (Fottrell, 2000; Archard, 1993).
Likewise, as mentioned in the CRC preamble, the international community also acknowledged the special rights of children in the International Covenant on Economic, Social, and Cultural Rights (CESCR) and the International Covenant on Civil and Political Rights (CCPR), which both entered into effect in 1965.
In addition, children’s rights advocates strongly discussed the need for a separate and particular canon of rights for children which reflected their needs and concerns (Fottrell, 2000). This discussion got widespread and the international movement for recognition children’s rights as human rights started growing after the debates taking place in the US in the 1970s. Increased pressure to create a binding international instrument led to a formal proposal from the Polish delegation. They presented the proposal conceptualizing a Convention on the Rights of the Child to the UN Commission on Human Rights in 1979, the International Year of the Child. Over the next decade, as Fottrell (2000) describes, this proposal was redrafted several times as debates and controversies like the point at which life begins, parameters for autonomy, adoption in Islamic worlds, etc emerged around inclusion of several rights. Additionally, the drafting process was hampered by the need to balance between the traditional attitudes and cultural peculiarities, and the radical proposal for the empowerment of children. Finally, the Convention was adopted by the UN General Assembly after a decade of negotiations on November 20, 1989, and entered into force on September 2, 1990. This is the historic achievement for the children’s rights and Nepal ratified the UNCRC on September 14, 1990.
Guiding principles of the UNCRC
There are four main sections to the UNCRC: (1) the Preamble, which sets out the major underlying principles of the UNCRC and provides context for it; (2) the substantive articles, which set out the rights of all children and obligations of governments (Part I, Articles 1-41); (3) the implementation provisions, which define how compliance with the UNCRC is be monitored and fostered (Part II, Articles 42-45); and (4) the conditions under which the UNCRC comes into effect (Part III, Articles 46-54).They are all together 54 articles. The Convention has two Optional Protocols, adopted by the General Assembly in May 2000 and applicable to those states that have signed and ratified them: The Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol to the Convention of the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Nepal government signed both the optional protocols on 8th Sept 2002
The Preamble of the UNCRC acknowledges the family as the fundamental group of society and natural and happy environment for the growth and harmonious well-being of children and states the duty of the family to afford the necessary protection and assistance to the children.
The UNCRC applies to all children under 18. Each of the substantive articles, Articles 1-41, details a different type of right for children. According to Alderson (2008), the substantive articles of the UNCRC detail three overlapping kinds rights (three P’s in short) viz. Provision rights, protection rights and participation rights. Anne Trine Kjørholt, the academic coordinator of NOSEB, has mentioned four P’s in her lecture, viz. Provision rights, prevention rights, protection rights and participation rights. Agreeing with them, I would like to classify these articles into the following four types of rights.
1. Provisional or Survival rights: include the right to life and needs that are most basic to existence, such as nutrition, shelter, an adequate living standard, and access to medical services
2. Development rights: include the right to education, play, leisure, cultural activities, access to information, freedom of thought, conscience and religion
3. Protection rights: safeguard children from all forms of abuse, neglect and exploitation, including, special care for refugee children, children in criminal justice system and rehabilitation of children who have suffered exploitation or abuse of any kind
4. Participation rights: incorporate children’s freedom to express opinions, to have a say in matters affecting their own lives, to join associations and to assemble peacefully. They have increasing opportunities to participate in the activities of their society along with their physical and mental development.
Fottrell (2000) states that the UNCRC is underpinned by five key principles that form a backdrop against which all actions of the States are to be measured
§ First, under Article 3 the best interests of the child are a primary consideration in all matters concerning the child. This principle is widely accepted in domestic law but is introduced by this provision into international law for the first time.
§ Second, Article 5 requires that account is to be had of evolving capacities of the child, thus children can be accorded greater autonomy and responsibility as they get older.
§ Third, Article 12 very radically requires that States ensure that due weight be given to the views of the child, and that children who are capable of expressing views be heard in all matters concerning them.
§ Fourth, Article 2 requires that all the rights in the CRC be accorded to all children without discrimination.
§ Finally, Article 6 protects the right to life, survival and development.
Fottrell (2000, p.5)
These guiding principles or key themes provide a strong framework for the adoption of child-friendly focus in all of the obligations imposed on the State. The UNCRC has introduced new rights and reconstructed the existing rights so as to promote a child-centred perspective. It has been instrumental in recognising children’s rights as human rights in international legislation.
Furthermore, the UNCRC has been a common platform for all. Recognizing its importance, 193 States have ratified it. It has changed the way we used to view the children. It has helped people view children as competent social actors who have valid perspectives and experiences of their own lives and others. The provisions enshrined in Articles 12-17, which include the rights to freedom of expression, association, privacy, and most controversially, freedom of religion are said to be extreme and radical in application to children.
3. Theoretical discussions to the UNCRC
Much of the initial discussions about children’s rights has been philosophical and conceptual in nature. The advocacy of children’s rights is to simply a device of diminishing the real freedom of adults. The focus on general and theoretical considerations has overlooked the practical suggestions for change on children’s rights (Franklin, 1995). The theoretical debates and discussions are still going on about the CRC and two main conflicting views linked to the theoretical discussions of children’s rights are discussed
Caretaker thesis versus child liberation thesis
In regard to welfare and liberty rights, there are two diametrically opposite theses, viz. ‘the caretaker thesis and the child liberation thesis (Arhard, 1993). These are the two conflicting points of views underlying the theory of children’s rights.
The advocates caretaker thesis argue that children should not be free to make autonomous decisions and their caretakers should be responsible in making decisions for them since, as they argue, children are the property of their natural parents and that’s why their treatment should be at the sole discretion of their parents. As Archard (1993) says, they deny only the right of self-determination because of a general political philosophy that accords self-determination a central and much valued place.
The caretaker view is the traditional view of children’s rights which is still dominant all over the world, particularly in developing worlds. This view stresses that children are weak, helpless and unknown about the world around them. So it is parents’ duty and right to make all choices for their children. Children are fully dependent on their parents and have only some sorts of dependency rights which are related to reasonable expectations that they will be given whatever they require to grow into healthy and functioning adults. This states that children have some rights but not all the rights that adults have. This view is dominant my country as well.
In striking contrast to the ‘caretaker’ view is the ‘child liberation thesis’ which is believed to be relatively radical. This view stresses that children have exactly the same rights that adults have, including such rights as the right to choose for oneself. Children should have the rights to decide matters that affect them most directly. The children’s liberation view is based on the argument that children do not differ from adults in ways that justify claiming that they do not have the same rights adults have. Children are also human beings. Children have the same fundamental human dignity that adults demands from others, and so they should have the same freedom to decide how they will run their own lives. This view is thought to be very revolutionary and most probably, because of this view, the United States is yet to ratify the UNCRC.
Likewise, the advocates of child liberation thesis argue that the right to self-determination is a fundamental right of all children. This is the central point of them. As they argue, the children are competent social beings, not incompetent ones as seen by the advocates the caretaker’s thesis. And denying rights simply on the basis of arbitrary criterion of age is fair and just. The advocates of child liberation thesis have propelled the children’s right movement to the recognition human rights although they do not have consistent arguments for the rights children
Definition of ‘children’ and ‘rights’
There is no universal definition of a child. The social and biological definition of a child seems to be place, ethnicity, caste, gender and class specific. CRC (Article 1) states... ‘a child means every human being below the age of eighteen years unless the law applicable to the child, majority is attained earlier’. In Nepal, a person below 16 years of age is regarded as a child (Children’s Act, 1992).
Children and childhood have various connotations around the world. Being a child, as Franklin (1995) describes, is not a ‘universal experience of any fixed duration’. It is differently constructed social phenomenon on the basis of a divergent gender, class, ethnic, historical locations of particular individuals. Defining a child seems very important as the age limit determines the involvement of children in work, armed conflict, etc. The geographical, historical, and cultural factors existing around the world have set the age of children according to their cultural and social peculiarities. This has hindered CRC’s principle of protecting children under 18 as many children in different part of the world are defined as adults.
Franklin (ibid.) describes the three factors underlying the complexity of the notion of children and childhood. First, the age boundary between childhood and adulthood is established at different ages in different spheres of activities. In UK, a child reaches the age of criminal responsibility at 10 but he or she does not have suffrage until he or she is 18. In some states of Australia a child as young as seven can be considered criminally responsible. In Nepal, the minimum age for criminal responsibility is 10, but for suffrage 18. Similarly, in India it is 7, Bangladesh 9, Bhutan 10, etc. (UNICEF). This arbitrariness of age of criminal responsibility has violated children’s right to ‘juvenile justice’ (Article 40) which recommends the penal provision be raised to at the age of 18.
Second, the definition of everyone under 18 as a child does not seem fair to all children ranging from zero to 18. The infants have definitely different needs other than the teenagers. So the heterogeneity of childhood does not seem to have been addressed by CRC.
Third, children have different experiences in different countries. Ennew (2000; in Franklin 2000(eds.) argues that the conception childhood which stresses domesticity and dependency, is largely a western definition which places certain children, especially the street children ‘outside childhood’. She further argues that the place for childhood is inside a family, inside a society and inside a private dwelling. However, street children have been the ‘ultimate outlaws and CRC does not have any provisions protecting their society. They have been outside childhood.
Children rights have been a buzzword at the moment all over the world. United States is yet to decide whether to ratify the CRC or not. Many parents object to children’s rights as they suspect that their children might be disobedient. Many religious institutions seems opposite of children’s rights, as CRC (Article 14) enshrines the right to religion of the children.
Rodham (1973; in Franklin 1995) states that children’s rights were described as a ‘slogan in search of definition’ in the early 1970s. In the subsequent two decades children right have got much discussions and a wide range of rights have been claimed by and for children including basic human rights. ‘It is important that the discussions of children’s rights should keep two broad distinctions in mind; between legal and moral rights, and between welfare and liberty rights’ (Franklin 1995, p. 9).
Legal right is an entitlement which is acknowledged and enforced by an existing law. The children possess the legal rights. A moral right, however, enjoys no legal endorsement (Feinberg, 1973; in Franklin 1995). By contrast, a moral right is a claim which it is believed children should possess. For example, children’s right to education is a legal right, and respecting and obeying seniors could be a moral right.
Certainly, the member countries of the UNCCR have made some sort of legal provisions applicable to the children in their context. Nevertheless, the moral rights are very subtle which reflect the historical and cultural peculiarities’ of a particular place. The type of society, either matriarchal or matriarchal or both has much impact on children’s rights. In patriarchal society, children are supposed not to raise any questions in front of their seniors, if they do, they are regarded not good children. Then, what about the right of children to ‘freedom of expression’ (Article 13)? So the exiting concept of morality in a particular culture has been a barrier for children to enjoy their basic human rights.
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Likewise, much controversy lies in CRC, Article 3, which states that ‘in all actions concerning children, whether undertaken by public or private social welfare instructions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. The meaning of ‘the best interests’ is very broad and varying. Different people have different explanation on the basis of the social, cultural, economic, etc., values of their society. To the children of a porter who relies on carrying loads for a two square meal working and earning money may be in the best interests of his or her children. In patriarchal society, following the decisions made the parents can be in the best interests of the children. To the children of a poor family working and earning can be in the best interest of their children rather than playing in free and leisure time. Therefore, there is, as Kjørholt (2008) states, no universal yardstick by which children’s best interests can be measured. These best interests, as stipulated in the Convention, are dependent on social, cultural, economic, educational, political and other factors and their emphasis in a society. The ambiguity of the definition of best interests has been a hindrance to the rights of children as it leaves the authority to the adults of a society who manipulate children in the way they like.
4. Implementation of the CRC in context to Nepal
Nepal ratified the UNCRC in 1990 and both Optional Protocols on September 8, 2002. After the ratification of the CRC, there have been a lot changes so as to safeguard the rights of children. Government of Nepal brought The Children’s Act, 1992; and Child Labour (Prohibition and Regulation) Act, 1999. These two legal provisions for protecting and promoting children’s rights are historic achievement for children and child advocates. These provisions have been made to materialize the spirit of CRC. In addition to CRC, Nepal has ratified about a dozens of international conventions concerning children and their rights. They are
1. First SAARC Ministerial Conference on Children, 1986;
2. Convention on the Rights of the Child, 1989;
3. World Declaration and Plan of Action for the Protection and Development of Children (1990);
4. International Programme on Eradication of Child Labour 1992;
5. Second SAARC Ministerial Conference on Children,Colombo1992
6. Stockholm Declaration adopted at the World Congress against Commercial Sexual Exploitation of Children, 1996;
7. Third SAARC Ministerial Conference on Children, Rawalpindi, 1996;
8. The Declaration on the Elimination of the Most Intolerable Forms of Child Labour, adopted at the Amsterdam Child Labour Conference, 1997;
9. ILO Convention No. 138 Concerning Minimum Age for Admission to Employment, 1996;
10. Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography;
11. Yokohama Declaration, adopted at the Second World Congress against Commercial Sexual Exploitation of Children, 2001;
12. Declaration of Commitment adopted by the twenty-sixth special session of the General Assembly on children, 2001; and
13. ILO Convention No. 182 on Worst Forms of Child Labour
(source: Second periodic report of States parties due in 1997: submitted on 4th March 2004)
Likewise, in April 2000, the Government of Nepal, keeping in the mind the children’s right to ‘juvenile justice’ guaranteed by the CRC(Article 40), established Juvenile Benches in all 75 district courts of the country to deal with cases related to children in conflict with the law. The intention behind establishing Juveniles Benches seems to coordinate with the judiciary to involve child psychologists, social activists, and child experts in the Benches during the court proceedings.
The Constitution of Nepal (1990) and other laws prohibit the discrimination on the basis of race, caste, and gender. This provision ensures the children’s right ‘against discrimination’ (CRC, Article 2). However, gender, caste, race and class based discrimination is still in practice. And particularly the girls and women of lower caste and lower class have suffered a lot from discrimination although it exists in all class, caste, and race. Gender discrimination is still rampant in Nepal because of the overwhelming wish in Nepalese society for having a male child. This traditional thinking of people has helped violate the rights of children. The adverse effect of illiteracy reflects every sphere of life. The girl children are regarded the properties of somebody else other than their parents, and boy-children the properties of their parents. This feeling, most probably caused dogmatic Hinduism, has fuelled gender based discrimination and violence.
In order to combat this and other heinous forms of discrimination, Government of Nepal created the National Human Rights Commission in 2000. It has played a very important role in preventing child right violations and strongly advocated against the employment of children as domestic workers. It has also recommended to the Government to separate children from adults in places of detention. There are many children ranging from under five to under 18 years of age are imprisoned in either alone or with their mothers. Many of them are facing the consequences of their mothers’ faults. This has violated children’s ‘best interests’ and ‘rights to be protected’ (CRC, Articles 3 & 4) and right ‘not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment’ (CRC, Article 37) and many other rights enshrined in the CRC. If both parents are sent to jail, there is no way to their children except living with their parents in poorly facilitated jails. Although the Government has established a high-level commission for ‘Dalit’ (the lower castes), it has not been much effective in mitigating caste-based abuse and violence.
‘The best interests of children’ (CRC, Article 3) has rather been a dream to the children in Nepal. Their best interest is determined by their best interest of their parents. This is downright against Article 12 of the CRC, which makes provision for respecting the view of children. There are a few radio and televisions programmes targeted to children. The children are not supposed to go against decisions of their parents. The issues of politics and development have overtaken even the issues of women, let alone children. Women are still fighting against their rights and abuse and violence against them. The children’s rights come last in priority list. In such a context, the rights of children are often neglected. However, many national and international organizations are working for the rights of children. Hope children will soon get full-fledged rights.
Nepal is a developing country and about 40 percent people live below the line of abject poverty. Moreover, 80 percent people live in villages where there are poor and limited health facilities. There are many remote villages where there is no health post too. In such a situation, children have limited ‘right to life, survival and development’ (CRC, Article, 6). About 44,000 children die of different kinds of communicable diseases (Save the Children; Nepal Country Profile 2006). So a large number of children have even not got chance to enjoy basic human rights. Their right to ‘adequate standard of living’ (CRC, Article 27) has been limited since they have not got the basics of life too. The children of poor family have not enjoyed their right to ‘social security’ and ‘standard of living’ guaranteed by the CRC (Article 26 and 27).
In the male-dominated society children are supposed to be obedient and loyal to their seniors. They are not supposed to involve the gathering of seniors and they are not supposed to be inquisitive in the issues that adults are discussing. This kind of traditional culture had limited the children’s ‘freedom of expression’ guaranteed in the CRC (Article 13). There are a few media for promoting this right of children. We can just find a weekly column in the national newspapers dealing with children and children’s issues. Muna, Balak, Sunkeshra and Balkoseli are children’s magazines which are mainly circulated in city areas. There are a few child oriented radio and televisions programmes. Children have very limited right to access to information from mass media guaranteed by the CRC (Article 17).
The Children’s Act 1992 ensures children’s right to ‘freedom of association and peaceful assembly’ guaranteed in the CRC (Article 15). However, in July 1998, the Jagriti Children’s Club filed a case in the Supreme Court against the decision of Ministry of Home and District Administration Office to deny its registration as an organization. This is very shocking since the State seems to go against the right of the children. This is what is really prevalent in Nepali society concerning children’s rights. In such a situation, ensuring children their rights is not an easy job. Moreover, the children should ask for permission to their guardians if they want to go out of home. The unfortunate thing is that the girl children are not allowed to move alone and their movement at night is strictly prohibited. In such situation, their rights are limited because of traditional beliefs and values. These things are slowly changing though.
Many children have been arrested and jailed. As mentioned in second State party report in 2004, 798 children are estimated to have been detained between 1996 and 2000, and a total number of 3,679 children are reported missing during the same period. How many children have been arrested and detained so far has not been studied. Similarly, how may detained children die because of torture and punishment is yet to study in Nepal. About 99% children are said to have been detained in adult-friendly jails and there is no child friendly jail in Nepal. Nepal has enforced Juvenile Justice (Procedures) Regulations, 2006 too in order to check and monitor these kinds of cases but, sadly much in paper and very less in practice. This is against the children’s ‘right not to be separated from their parents’ (CRC, Article 9).
Kidnapping and trafficking of children is increasing alarmingly in Nepal as the political situation of country is worsening day by day. About 12000 children and women are being trafficked abroad every year, particularly to Indian brothels. About 5000 to 7000 children are being trafficked. Many children have been kidnapped and brutally murdered. In order to check this crime and protect the rights of children enshrined in the CRC, particularly in Article 11, the responsibility of the State to prevent illicit transfer of children, Article 34, the to be protected from sexual abuse and exploitation, Article 35, the right to be protected from abduction and selling, and Article 36, the right to be protected from all forms of exploitation that might harm the children, the Government has established the Community Surveillance System Against Trafficking (CSSAT) in 220 Village Development Committees of 14 districts. In addition, a number of I/NGOs are also working in order to combat child abduction and trafficking.
The condition of disabled children has not improved yet. There are a few number of disabled children friendly schools. The disabled children’s right to get facilities and assistance fit to their physical conditions in CRC, Article 23 has not been protected by the State in sufficient way. The Government has formed a National Disability Service Coordination Committee in 2000 to develop and support programmes for persons with disabilities. However, the disabled children have been much deprived of their rights as there are limited disabled children friendly facilities provided by the State and much worse is that disability is still taken as a social stigma and many of the parents do not let other know that their child has some sort of handicap. This kind of thinking has made the lives of disabled children very worse.
Child labour is still rampant in Nepal. There are about 12.12 million children (48% of total population) under age of 18. Out of them, more than 2.6 million children are working in different factories, mines etc. About 5000 children live in streets; about 8000 children between 12-18 years are associated with armed forces and armed groups, one million children do not attend school. Similarly, 5000 girls aged below 16 are involved in commercial sex work. In order to check right labour, Government of Nepal adopted the Child Labour (Prohibiting and Regularizing) Act in 1999 which prohibits the hazardous works for children and protects the right of children to be protected from dangerous forms of works guaranteed by CRC, Article 32. The Government has ratified the ILO Convention No. 182 regarding the Elimination of Worst Forms of Child Labour and Convention No.29 regarding Forced Labour in September 2001. Likewise, it has also adopted the Child Labour Master Plan 2001-2010, with a comprehensive and holistic approach to tackle child labour by coordinating all the stakeholders to avoid overlapping and duplicating. In July 2000, the Government abolished the practice of Kamaiya, a worst form bonded labour practice widely prevalent in western part of Nepal.
Similarly, about one million children have not got their ‘right to education’ guaranteed by CRC, Article 28. Although the government has already made primary schooling free to all, the school charge money to the parents and they have to pay for reading materials too. This has caused many children to remain out of schools. There are very limited early child care and education institutions in Nepal and they are very expensive too. The much facilitated are private schools and children care centres which are meant for rich people only.
5. Conclusion,
There have been a lot of changes at least in paper so as to protect and promote children’s rights in Nepal but very less in practice. If you visit the Kathmandu city and travel on public vehicles you can many children working as the helpers of drivers. If you visit garment factories, still thousands of children working there. This is the situation in the capital city where policies and decisions are made. The situation is much worse than told in State party reports.
Child trafficking and kidnapping, child labour, sexual abuse, harmful traditional practices, etc are the major problem of children mainly fuelled by political stalemate, poverty, illiteracy, social values and norms and discriminatory and weak law enforcement in the country. However, much has been done over the past 20 years than before regarding the protection and promotion of the rights of the children.
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