THE RIGHTS OF CHILDREN: ACTION TOWARDS REALISATION

This 8th Conference of Chief Justices of the World aims at ensuring the improvement of the quality of life of the billions of children on Earth and unborn generations takes place at a crucial time. It is a time when children are abused beyond measure, when poverty strangles children often to death, when education to many children is paltry, when children are used as soldiers and when the well-being of children has become an issue for wonderful words rather than effective action. This address will therefore focus on the action that is required to ensure that the lives of children are regarded as worthy, to impress upon all in the world the importance of the dignity of our children and to improve the quality of childrens' lives. We understand that the International Court of Justice could have a vital role to play in the achievement of the objectives of this Conference. We take the view however that there are certain pre-requisites which must occur at the national level so as to strengthen the role of the International Court.

Section 28 of South Africa's Constitution provides:

"28 Children
(1) Every child has the right-

(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that-

(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be-

(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child's age;

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.
(2) A child's best interests are of paramount importance in every matter concerning the child.
(3) In this section 'child' means a person under the age of 18 years."

This Constitution reflects a fresh international approach to be found in the International Convention on the Rights of the Child. It is not necessary to go into this Convention in much detail but we must understand and internalise the importance and implications of the principle recorded in both the International Convention and many national instruments. That principle says that children now have rights. They are no longer to be trampled upon as objects; they are no longer to be treated as second class citizens; they are not any more expendable for public purposes; they are not be taken advantage of; they are to be nurtured so that they can contribute to our future.

The fact that children have rights must mean that other members of humanity have responsibilities or obligations. If this were not so, the rights would be utterly meaningless. It is therefore essential for all of us to ensure that this is the starting point in any decision that we must make in relation to children. But more importantly we must accept that the idea that we as adults have rights over children is unacceptable and can never be countenanced. We have responsibilities; children have rights.

The big question is how is this: how do we make this a reality? Statements by the International Court of Justice will be very useful but not enough in themselves. We need to develop in our own communities a new culture in which all members of society respect their children, respect their dignity, nurture them and make sure that they are able to make an appropriate contribution to our society.

And to distinguish or discriminate between girls and boys is inimical to the process of ensuring the appropriate rights of children. We have an obligation to treat all children equally irrespective of their sex or gender. It is quite impossible to achieve this result until and unless our culture recognises that men and women are also equal. So the equality of men and women is an essential pre-requisite to the rights of children. Discrimination against women in society will inevitably overflow into discrimination against children. Girls and women live in the same society and the equality of children can therefore only be guaranteed if we work towards the equality of men and women.

We must not deny the relationship between poverty and the suffering of children. It is quite impossible to insulate children from the rest of society. We can never have a society in which the rights of children to social and economic rights can be fulfilled where the rights of adults are not. A starving mother and father and a well-fed, well nourished child in the same family generally speaking represent a contradiction. The success of the struggle against poverty particularly in developing nations is an essential pre-requisite to the survival of our children. So too is the struggle for other social and economic rights including the right to food, the right to water, the right to health and the right to social security. The responsibility to achieve success in these difficult areas has been thought to be primarily that of the country in which the children are.

We need to re-consider this assumption. It is true that the country in which children are bears a fundamental responsibility towards them but many developing countries are so poor that it is quite impossible for them to assure the dignity, health and comfort of their children. International co-operation as mandated by the Constitution of India is essential to ensure the well-being of children. We in the international arena have the responsibility to do everything we can to maximise international co-operation towards the achievement of our objectives.

Most of our judges in the country from which we come. I would suggest that before we can expect any meaningful contribution from the International Court of Justice, that we ourselves must ensure that the interests of the children are paramount in every decision we take. In those countries where children have constitutional rights we must make sure that they are not paper rights. All other interests must be secondary in every case in which the rights of children are involved. And we have a particular responsibility in countries that are poor: we must ensure that we do not over-emphasise the importance of material conditions in determining the best interests of our children. It may, for example, often be better for a poor child to remain with her parents in India than to be shipped off to a family in the United States merely on account of the material advantage.

The United Nations is an important arena of discussion. It is necessary for minimum international standards to be agreed upon before the International Court of Justice can have a meaningful role. We must ensure that these standards continue to improve. Our contribution as judges to this process is to ensure that minimum standards in our countries are improved realistically where it is possible to bring about that improvement through our judgments.

Much work must be done and this work is essential to the survival of our humanity as we know it. Our failure to do what is necessary to improve the lives of children could well result in the destruction of humanity itself. But there is reason to be hopeful. Recent developments as well as meetings of this kind persuade us that we will win.
We thank the organisers for making possible this very important event and trust that the next year will show that the condition of the children of the world will improve beyond our expectations. We must not rest until the objective is achieved.