Access to justice: Open the maze

On Thursday (13 March) the Human Rights Council - the UN’s main human rights monitoring and enforcement body - will debate access to justice for children during its annual day on the rights of the child.

The annual day is the one day per year that the Council focuses on children’s rights issues, and always takes place during its March session (which is its 25th session this year).

CRIN is reporting live from Geneva for the week of the annual day (10 - 14 March)   - sign up to receive our daily Children’s Rights at the UN CRINmails with updates and analysis on what is going on at the Council and follow #HRC25 on twitter.

Each CRINmail will include an editorial on some of the blocks and barriers in the maze that is access to justice for children. The first one is below.

Open the maze

Justice systems are a maze to just about everyone. The law is complicated, and inaccessible procedures and layers of jargon can make legal systems frightening and frustrating to people already in a fragile position. Yet despite the barriers, justice systems are vital and accessing them empowering. Being able to access and use the law means you can claim and defend your rights.

Access to justice is a human right; it also makes other human rights - the benchmark of a life lived with dignity, equality and respect - a reality. Without it, human rights would be merely consigned to the paper they are written on. The ability to access justice and the denial of it can split a society between those who can enjoy their rights and those who cannot.

Children’s rights violations are rife all around the world. Child sexual abuse; discrimination; lack of access to vital services such as education and healthcare; killing and maiming in armed conflicts - this list is endless. The names of the countries in the news and specific details of the abuse may change, but the violations continue again and again.

Justice systems can be a powerful tool in promoting and protecting children’s rights. If children are denied access to justice, their ability to enjoy their other human rights is vetoed because they have no power to enforce them.

What does access to justice for children mean?

Broadly speaking, access to justice for children means that children, or their appropriate advocates where applicable, must be able to use and trust the legal system to protect their human rights. It’s scope is often reduced to juvenile justice, but access to justice covers every instance in which a child comes into contact with the law, whether the child seeks out the legal system or the legal system seeks out the child. Seeing access to justice as only juvenile justice prevents children from being rights holders, as they are deemed only worthy of attention from the law when they have been accused of doing something ‘wrong’.

States’ obligations at the national level

To get through the access to justice maze, children and their advocates first need to be allowed in. First, States need to recognise that children have the human rights enshrined in the UN Convention on the Rights of the Child, and therefore make the Convention binding in national law. In this regard, State Parties are also obliged under international law to ensure the Convention takes precedent over any competing laws[1] and that it is enforceable in national courts.[2]

When a State ratifies the Convention they are obliged under international law to implement it in their national system.[3] Article 4 of the Convention requires State Parties to “undertake all appropriate legislative, administrative, and other measures for the implementation of [Convention] rights”. The Committee on the Rights of the Child - the UN body which monitors the implementation of the Convention - says “ensuring that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and appropriately enforced is fundamental.”[4]

Exactly how this needs to be done varies from State to State[5]. In some, constitutions explicitly make international human rights instruments binding domestically[6]; in others, legislation on the role of international law or interpretation of treaties may do the same. Where this is not the case (which is for most States), the Convention must be given authority through separate and specific implementing legislation.

A lot of countries have taken a piecemeal approach to implementing the Convention, enacting laws on segmented subjects such as child protection, child labour and education. To ensure children can enjoy all their rights enshrined in the Convention, States following a sectorial approach to children’s rights should still incorporate the Convention into domestic law in its entirety so all Convention rights are viewed together as binding.

States’ obligations at a regional or international level

If a country’s domestic system cannot provide a remedy for a violation of children’s rights, children and their advocates should be afforded the ability to turn to the international system for redress. The second step for States to open the access to justice maze for children is to provide access to international and regional human rights complaints mechanisms.

Starting next month, the Committee on the Rights of the Child will be able to hear complaints about children's rights violations in States that have ratified the necessary international treaty - the third optional protocol to the Convention on the Rights of the Child.[7] States should ratify this treaty so children’s rights violations can be brought to the UN body that has specific children’s rights expertise and has a mandate over children’s human rights. Since all human rights apply to children as equally as they do to adults, States should also ensure that children and their advocates can access all international and regional human rights complaints procedures for violations of human rights, and not just limit children’s rights to the Committee on the Rights of the Child.

Regional and international human rights systems are important when it comes to putting pressure on a State to provide access to justice and effective remedies to people whose rights have been violated. However, it is access to justice at the national level that is the key to obtaining redress. Not only do people first have to show that they have exhausted all domestic remedies before turning to international and regional complaints mechanisms, but complaints procedures, such as the upcoming one for the Committee on the Rights of the Child, mean more time, cost and travel for complainants. By the same token, States should use the new international children’s rights complaints mechanism as inspiration to strengthen access to justice for children in domestic law.

The above highlights just some of the issues we hope will be covered during the annual day on the rights of the child this week. Tomorrow we will publish our second editorial on the access to justice for children maze - “Get shown through the maze” - which will discuss the importance of legal representation for children.

Further information:

• See our HRC25 session page for details about the session, including the annual day on the rights of the child.
• Read the UN Office of the High Commissioner for Human Rights’ (OHCHR) report that will be the basis of discussions during the annual day.
• Read CRIN’s submission for the above report.
• Read CRIN's guide to the UN for more on the Human Rights Council and other UN mechanisms. 
• See the law section of our website for more, particularly for a collaborative project mapping how access to justice for children works in every country in the world. 
• The justice theme page of our website also has some further information.