CHAPTER ONE
INTRODUCTION
In the long march of mankind from the cave to the computer age, a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence. Every society whether it be large or small, powerful or weak, has created for itself a framework of principle within the consciousness to develop. What can be done, what cannot be done, permissible acts, have all been spelt out within the consciousness of the community.
The concept of law which is the element that binds members of the community together in their adherence to recognised values and standards was developed to create a certain level of order and stability in the society in which it functions. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts and coercive, as it punishes those who infringe its regulations. Law consist of a series of rules, regulations and behaviour reflecting to some extent, the ideas and pre-occupation of the society within it functions. And it has always regulated the conduct of states.1
International law, although, first known as the law of nations, was coined by William Blackstone in 1976, in his commentaries on the laws of England. In the era before World War II, International law was the laws that governed relations between states. Also, in 1963, International law was seen and defined as the body of rules and principles of actions which are binding upon civilized states in their conduct with one another. However, great changes have occurred in the outlook of International law since the end of World War II and these changes are evident both in the subjects of the law and the scope of its application. International law is now broadly defined as a set of norms that regulates the conduct of states, the functioning of international organisations as well as regulates those rights and obligations of individuals that are recognizable under international law. International law is thus no longer a law within the narrow confines of a horizontal application on the international plane, but a law that operates in a vertical sense within national orders, albeit through the force of national law.2 The defining moment for international law started since the dawn of the United Nation (which was established after the outbreak of World War II, when rules and norms regulating activities carried on outside the legal boundaries of nations were developed. Numerous international agreements-bilateral , regional or multilateral in nature- have been concluded and international customary rules as evidence of a general practice accepted as law, have been established.
The United Nation was the first international instrument in terms of member spread to make a bold statement on human rights protection- Human Rights are universal, and civil, political, economic, social and cultural right belonging to all human being.3 The preamble to the Universal Declaration of Human Rights adopted on 10th December 1948 emphasises that “recognition of the inherent dignity and of the equal and inalienable right of all members of the human family is the foundation of freedom, justice and peace in the world.” While there is widespread acceptance of the importance of human rights in the international structure, there is considerable confusion as to their precise nature and role in international law. The question of what is meant by a ‘right' is itself controversial and the subject of intense jurisprudential debate. Some rights for examples are intended as immediately as specifying a possible future pattern of behaviour. The problem of enforcement and sanctions with regard to human rights in international law is another issue which can affect the characterization of the phenomenon. There are writers who regards the high incidence of non-compliance with human right norms as evidence of a general practice that argues against the existence of a structure of human rights principles in international law. The concept of human rights is closely allied with ethics and morality. These rights that reflects the values of a community will be those with the most chance of a successful implementation. Positive rights may be taken to include those rights enshrined within a legal system, whether or not reflective of moral law.4
Rights may be seen as emanating from various sources, whether religion or from the nature of man or the nature of society. The natural law view as exPressed in the traditional formulations of that approach or by virtue of the natural rights movement, is that certain rights exists as a result of a higher law than a positive or man- made law. Such a higher law constitutes a universal and absolute set of principles governing all human beings in time and space. The natural rights approaches of the 17th century associated primarily with John Locke founded the existence of such inalienable right as the right to life, liberty and property upon a social contract making the end of the difficult conditions of the state of nature. This history enabled to be had to a superior type of law and thus was able to provide a powerful method of restraining arbitrary power. Modern right theories covers a wide range of approaches and this clearly emphasizes the need to come to terms with the requirement of an evolving legal system that cannot be totally comprehended in terms of that system itself.
The view adopted by the Western World with regards to international human rights law in general terms has tended to emphasizes the basic civil and political rights of individuals. Indeed the source of human rights principles was seen as the state. Tunkin wrote that the contentment of the principles of respect for human rights in international law may be exPressed in three propositions: (1), all states have a duty not to permit discrimination of sex, religion, race or language, (2), states have a duty to respect the fundamental rights and freedom of all persons within their territories and 93) states have a duty to promote universal respect for human rights and to cooperate with each other, in order to be able to enforce these objectives.5
Under international law, specific enforcement bodies usually specialized agencies, committees or special reporters monitor a nations human rights situation. These bodies also review reports and complaints about human rights violations generally submitted by non-governmental organisations (NGOs) but also sometimes by individuals. Human rights are universal, and civil, political, economic, social and cultural rights belonging to all human beings including children and young people. International provisions relating to the protection of children's right exist within the various legal systems. The protection of children's right under international treaty law can be traced back to the first document containing only five (5) principles by which members were invited to be guided in the work of child welfare. An extended version of this text was adopted by the General Assembly in 1948, which was followed by a revised version adopted by the General Assembly in 1959 as the UN Declaration on the Rights of the Child. The reason for an international change of heart towards the protection of children's right were manifold, but all signatories fundamentally recognised that the 1959 Declaration of the Rights of the Child no longer reflected the needs of many of the world's children.
Although, legal instruments were developed that targeted the protection of children in particular, children enjoyed protection by way of general human rights provisions, and their relevance should not be underestimated. The Universal Declaration of Human Right, as the most prominent and fundamental UN human rights document, provided in its Article 25 that children are entitled to care and assistance. The Human Rights committee has emphasised that the rights provided for in Article 24 are not the only ones that convention recognises for children and that as individuals children benefit from all the civil rights enunciated in its covenant.
The International Covenant on Economic, Social and Cultural rights contains several child specific provisions, with a focus on the right to education and protection from economic and social exploitation. Moreover, the Convention on the Elimination of All forms of Discrimination also contains child protective provisions. For example, it emphasises that the interest of children are paramount. The committee established under the latter Convention has already exPressed its concerns about the general vulnerability of abandoned children who at risk of torture and other cruel, inhuman or degrading treatment or punishment especially children used as combatants. After all it can be stated that children's rights.6
Children are society's most valuable resources and however clichéd that idea may be, there can be no doubt about the urgency of the issues confronting children today. The convention defines a child as a human being up to the age of 18. The idea that children have special needs, have now given way to the conviction that children have the same spectrum of right as adults; civil and political, socio-cultural and economic. The convention clearly states that all children have rights that are inherent inhuman rights and that these should not be perceived as optional, as a question of favour or kindness to children or as an exPression of charity. These rights generates obligations and responsibilities. Acknowledging the vulnerability in the nature of a child and the social responsibility to provide special assistance and protection, the convention promotes the values of the child as a citizen, a partner in decision making and in the broader process of social change. The CRC thus envisions the child as a full, valuable and participating member of the society.7
Each day, we are bombarded with media reports on issues affecting children- complex issues related to child care schooling, violence, morality, gangs, divorce, rape, child marriage, amongst others. In different cultures and society around the world, childhood can be a wondrous time when days are filled with play and new discoveries, rights provide rest and security and loving parents nurture their children and meet their needs. Some children do indeed experience the fully joy of childhood. However, regretfully, there are other more sobering scenarios: there are children who do not have nurturing adults to guide them, who go to bed hungry, some who do not have homes, some who have little or no education and some who are abused mentally, physically and even sexually. The society should understand that children come into the world totally helpless, unable to feed, care for, or protect themselves. As the children grow and develop, they undertake the process of acquiring a sense of identity and learning the rules of the society in which they live. The societal influence do not stop within the family system, rather as the children grows, other institutions, such as schools, the economy, politics and the religion affects the child.8
The UN General Assembly made a resolution on May 25, 2000 which entered into force on 18 January 2002, this resolution was made in order to further the convention on the Rights of the Child and the implementation of these rights, especially under Article 1, 11, 21, 32, 33, 34, 35 and 36. The Convention on the Rights of the Child recognises the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to be harmful to the child's health or physical, mental, spiritual, moral or social development. the Convention is also concerned with the significant increase in international trafficking of children for the purpose of the sale of children, child prostitution, and child pornography, deeply concerned at the widespread and continuing practice of sex tourism, to which children are especially vulnerable, as it directly promotes the sale of children, child prostitution and child pornography . Recognizing that a particularly vulnerable groups including girl children are at greater risk of sexual exploitation and that girl children are disproportionately represented among the sexually exploited. The convention believes that the elimination of the sale of children, child prostitution and child pornography will be facilitate by adopting a holistic approach, addressing the contributing factors, including underdevelopment, poverty, economic disparities, inequitable socio-economic structure, dysfunctioning fannities, lack of education, urban, rural migration, gender discrimination, irresponsible adult sexual behaviour harmful traditional practices, armed conflicts and a need to raise public awareness to reduce consumer demand for the sale of children, child prostitution and child pornography. And believing in the importance of strengthening global partnership among all actors and of improving law enforcement at the national level.9
The human rights of children and the girl- child have been explicitly set out in the Convention on the Rights of the Child (which is the most widely ratified human rights treaty in history). Which is also contained in other human rights documents including the Universal Declaration, the Covenants, CEDAW, and other widely adhered to international human rights of children and the girl-child include the following indivisible, interdependent and interrelated human rights:
The human right to freedom from discrimination based on gender, age, race, colour, language, religion, ethnicity or any other status, or on the status of the child's parents.
The human right to a standard of living adequate for a child's intellectual, physical, moral and spiritual development.
The human right to protection from economic and sexual exploitation, prostitution and trafficking.
The human right to freedom from forced or early marriage.
The human right to freedom from cultural practices, customs and traditions harmful to the child, including female genital mutilation.
The human right to information about health, sexuality and reproduction.
The human right to equal access to food and nutrition.
The human right to express an opinion about plans or decisions affecting the child's life.
