The Best of Both Worlds for Children's Rights? Interpreting the European Convention on Human Rights in the Light of the UN Convention on the Rights of the Child

I. Introduction

The European Convention on Human Rights (ECHR) has always operated successfully as a regional mechanism of human rights protection. Now, following the ECHR's incorporation into the legal systems of the vast majority of Council of Europe States, including, most recently, the United Kingdom, its potential to influence law and policy can be realized at the domestic as well as the regional level. ¹ The Convention's scope for enforcing and protecting the rights of children is not immediately evident given that it contains few specific references to the rights of the child. However, the European Commission of Human Rights and the European Court of Human Rights have made a considerable contribution to European law and practice in the areas of private and public family law, the protection of children from abuse and neglect and, most recently, juvenile justice and detention. ² They have done this, it is submitted, through a variety of inventive methods of interpretation, ³ including the practice of drawing on the provisions of the UN Convention on the Rights of the Child (CRC). ⁴ While it is not apparent that the Court (or the Commission, up to its abolition in 1998) has followed a consistent strategy to refer to the Convention on the Rights of the Child in all children's cases, it has been making such references with increasing frequency and with significant effect. This article analyzes the Court's approach to interpreting the ECHR in the light of the CRC and identifies the features of each treaty, which encourage this approach. It examines two specific areas of the Court's practice in this regard--physical punishment and juvenile justice--and concludes with some suggestions as to how this approach might be developed further in a way that offers greater scope for the protection and promotion of children's rights in Europe.

II. The UN Convention on the Rights of the Child

The UN Convention on the Rights of the Child 1990 is only eleven years old; its impact is thus difficult to assess within such a short time-frame. Any assessment is made more difficult by the fact that the Convention lacks a powerful system of enforcement to allow for the adjudication of complaints of individual children, ⁵ resulting in a lack of case law applying Convention standards to individual cases. Instead, implementation of the Convention's principles and provisions is monitored by a panel of international experts whose success depends largely on the willingness of national governments to take its criticisms and recommendations seriously. ⁶ The approach of the UN Committee on the Rights of the Child to the promotion and protection of children's rights is thus advisory and non-adversarial in nature and its success relies on diplomacy rather than legal sanction. ⁷ Despite its potential to advance protection of children's rights, this is a mechanism which clearly has long-term, rather than short-term, goals. However, in addition to its legally binding nature, the CRC also enjoys a certain moral force derived from its unanimous approval by the General Assembly in 1990, as well as the status it has since acquired as the most highly ratified instrument in international law. ⁸ There are thus other ways in which the CRC's implementation can be furthered. For example, it can be used as a blueprint for government action and as a tool to educate and create an awareness of children's rights at the domestic level. ⁹ Although such efforts may have a positive impact on the profile of children's rights issues which will ultimately lead to their greater protection, taken alone, their potential to remedy serious violations of children's rights...