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FOCUS December 2005 Volume 42

Children's Rights in Northeast Asia

Yanghee Lee*

* Yanghee Lee is a Professor at the Department of Child Psychology and Education, Sungkyunkwan University, Seoul, Korea, and a vice-chairperson of the United Nations Committee on the Rights of the Child.

Northeast Asian countries share many things in common. Four countries (the Republic of Korea, Democratic Republic of Korea, China, and Japan)[1] in particular currently receive much attention in the international stage. This article focuses neither on the political and economic implications surrounding this attention, nor on the many sensitive political issues existing in this subregion. Quite the contrary, this article aims to put the "human" aspect back into human rights, especially children's rights.

All four countries have during the past two years finished the review process of the second State Party Report submitted to the United Nations (UN) Committee on the Rights of the Child (Committee) on the implementation of the Convention on the Rights of the Child (Convention). The Committee is the only human rights treaty body based on a nearly universally ratified (with the exception of Somalia and the United States) instrument. This is a treaty body that puts children in the forefront and makes all stakeholders responsible for promoting, upholding, and protecting their rights.

Now that the review of the second report of these countries is done, it is noteworthy to explain the common observations relating to them. There is no attempt to compare in any way the countries to each other. Although they share many common points, it must be emphasized that there are specific economic and social characteristics inherent to each country. But shared history, religion, tradition, and culture not surprisingly make their belief systems, values, and everyday way of life similar.

Human rights have long been understood and accepted as an important concept, but also as "western" concept. And yet even "western" countries find it difficult to fully implement the Convention. This perhaps explains why some of these "western" countries made reservations and declarations to the Convention. Societies that view children as properties of parents seem to have much resistance to compliance with the Convention.

This article provides (1) some basic and general observations in relation to the concluding observations made by the Committee on the reports of the Northeast Asian countries; (2) common themes; and (3) challenges to be addressed. Though these observations are not exclusive to this subregion, they may have subregional and cultural implications. References to particular countries are made only to better understand the situation of children's rights in the respective countries.

Situation of the children

Children are considered the future leaders of society. In one country, they are even referred to as 'kings'. However, the lives of these future leaders are not as "regal" as one would like to believe. Since the first review, there have been improvements such as the passage of new laws, policies, and guidelines, etc., in order to realize children's rights. But the countries of this subregion, similar to countries in other regions, can still do a lot more to improve the lives of the children. There may not be an ideal model on how to implement the Convention, but the principles and provisions it outlines should serve as a basic guideline for countries in making the world fit better for children. It cannot be emphasized enough that the idea is not just to implement and comply with the Convention, but to have the environment and processes that realize the rights of children.

All four countries demonstrate positive effort in not only implementing the Convention but in actually recognizing children as a group of persons possessing rights to be recognized, respected, and protected. However, the general measures of implementation still deserve thorough attention. First of all, reservations and/or declarations to the Convention should be withdrawn in accordance with the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights (1993). The principles and provisions outlined by the Convention are a product of an agreement among members of the United Nations. As with all treaties, the Convention went through a long drafting process that studied all religious, economic, and cultural points of view. There seems to be no reason why States Parties should continue to hold reservations to the Convention.

The concern, though not unique to the four countries, about domestic laws not fully reflecting or complying with the principles and provisions of the Convention is another common ground. A major concern is the fact that in practice the Convention cannot be invoked directly by the Courts. The decentralization process provides greater concern as localities and municipalities adopt different laws or ordinances that do not conform with the Convention, leading to a possible situation where children are "visibly invisible".

Domestic law definition of "child," "juvenile justice," "discrimination," "children with disabilities," "child abuse and neglect," "corporal punishment," "sexual and economic exploitation," among others, is an issue affecting compliance with the Convention. With the legal definition failing to conform with the Convention, de facto discrimination against certain groups of children exists alongside de jure discrimination (usually against the most vulnerable groups such as children born out-of-wedlock, minority and/or ethnic children, and children with disabilities).

Difference in the age of marriage without parental consent between girls and boys puts the girl-child at a disadvantage. Tradition dictates that girls get married earlier than boys do. This results in States Parties denying the female population of equality between genders. This is a matter the civil society should pay more attention to in countries such as the two Koreas and Japan. Setting a lower age of marriage without parental consent (13 years old) for girls, as is the case of Japan, opens the door wide open for sexual exploitation of young girls. Also, one-child per family birth registration system could put the girl-child at the gravest disadvantage.

Juvenile justice is perhaps the most overlooked part of children's issues. This is most harshly dealt with in all four countries. Extension of pre-trial detention period (adopted by Japan after its initial report and before the second report); continued lack or absence of judicial proceedings (China and DPRK); deprivation of liberty in the absence of on-going criminal procedures, lowering of the age of criminal responsibility, and many of the reforms affecting juveniles do not conform with the principles and provisions of the Convention ,[2] the Beijing Rules (UN Standard Minimum Rules for the Administration of Juvenile Justice),[3] and the Riyadh Guidelines (UN Guidelines for the Prevention of Juvenile Delinquency).[4] They are often the reality in all four countries.

Absence of an independent monitoring mechanism on child rights seems to be the general situation in the Northeast Asian sub-region. This mechanism seems to be mistaken for an inter-ministerial policy monitoring mechanism. The Committee has repeatedly asked States Parties to set up an inter-ministerial coordinating mechanism where all the policies that affect children can be communicated within different organs of the government. This mechanism should also have a system to monitor the effects of different laws, policies, ordinances, etc. Furthermore, it has been recommended that this mechanism undertake time-bound child impact assessments.

The Committee adopted for its second General Comment "The role of independent national human rights institutions in the promotion and protection of the rights of the child"(CRC/GC/2002/2). The national human rights institution is different from an inter-ministerial monitoring mechanism. This institution must be equipped to deal with complaints from children in a child-sensitive manner, provide remedies for violations of their rights, and follow the "Paris Principles" (Principles relating to the status and functioning of national institutions for protection and promotion of human rights).[5] This institution helps States Parties comply with their obligation under Article 4 of the Convention to "undertake all appropriate legislative, administrative and other measures for the implementation of the rights".

Corporal punishment, a global issue on violence, led the UN Secretary General (Kofi Anan) to call for a study on all forms of violence against children (UN Study on the Violence Against Children).[6] The common saying in the West "spare the rod and spoil the child" has a Northeast Asian equivalent: "rod of love" (ROK). If you love your children, then you will not hesitate to discipline them using the rod. What has been overlooked in our societies is the fact that this is a definite form of violence against children. It serves no purpose but to punish them (even so, this form of punishment has no positive effects, and is morally wrong!). If we are concerned with the betterment, and the learning process, of the children, and not simply to punish them, alternate forms of disciplining must be considered and carried out. In compliance with the Convention, the four countries banned corporal punishment in schools, institutions, and homes. However, reports from all the four countries indicate that corporal punishment is still practiced in schools, institutions, and even more at home.

The final areas worth noting refer to data collection and budget allocation. These two issues are closely related. The Convention requires the collection of data on all children up to the age of 18. In all four countries, data collection system could be improved to include all children under the age of 18. In some cases, variation in the age of children in different laws almost render it impossible to accurately assess the amount of budget allocated and the efficacy of programs and policies for this population. For whatever reasons, there seem to be insufficient data on children, the most vulnerable population. Unless the State Party has accurate disaggregated data on the number of children of all groups and on the allocation of resources for them, it would be impossible to come up with an appropriate plan of action (with child impact assessment as follow-up).

Basic principles

Perhaps the three principles of the Convention that are least understood and even ignored are the "best interest of the child" (Article 3); "evolving capacities of the child" (Article 5); and "respect for the views of the child" (Article 12). Often, these principles are treated as mere rhetoric.

In a culture where children are viewed as important leaders of the future, this principle probably requires no further explanation. And yet, this is exactly the reason why the principle of the best of interest of the child deserves more attention than it had in the past. Article 3 of the Convention stipulates, "that all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." It goes on to state that it is the responsibility of the State to ensure the child such protection and care and to take "all appropriate legislative and administrative measures", while taking into account the rights and duties of all persons legally responsible for the child. The duties of all stakeholders are underlined in this article. This article puts the child to the forefront as an entity with rights that need to be protected and respected. Traditions in Northeast Asia such as respect for the elderly, filial piety, father before self, and country before self have left little room for children to be viewed as primary concern. To use a modern terminology, a "top-down" approach has been more of the norm in this part of the world. It even goes beyond the concept of "father knows best". The country comes first, then the father, followed by the son, the mother, and finally the daughter - in this strict order. This type of social structure has in the past supported authoritarian decision-making and the adoption of certain special interests other than those of children as primary concern.

Article 5 further emphasizes that the State should respect the "responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights." This article, again, emphasizes the role of the State in ensuring full realization of the rights of the child. It again highlights the duties and responsibilities of the parents and all persons responsible for the child. Yes, there is a mention of the "rights" of these persons. However, this does not mean that the rights of the parents and others, per se, supersede the rights of the child. The Convention has already stipulated that the best interest of the child shall be the foremost concern. The Convention is often misunderstood as relinquishing the rights of parents or those who are responsible for the child. Quite the contrary, it should be understood to mean that the State should be responsible in providing the means to ensure that the family, etc., can assist the child in exercising her/his rights. Childhood is a period of constant change. This means that the child is in a state of change, or development, with capacities commensurate to the different developmental stages. Recognizing the capacities of the child in different periods of life is imperative in decisions that are made for the child.

Article 12 emphasizes that the State "shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." This article should be understood together with the aforementioned two articles. The best interest of the child shall be of utmost priority and that the child, recognizing the nature of the evolving capacities shall be given the right to participate in all matters concerning her/him. This translates into all matters, small or large, family or school, community or national, and legal or non-legal.

Challenges

The challenge for the countries in Northeast Asia is in the creation of a culture that regards children as rights-bearing, important members of society. In considering low birth-rate in the Republic of Korea and Japan, or the opposite situation in China, the needs-based approach addresses only the aging society issue or the enforcement of strict population control policy. The real challenge in these countries is the resolution of this issue in a child-sensitive, rights-based fashion.

Regardless of the political, economic, or social structures, children must be the utmost priority.

I would like to close by emphasizing the "human" element in human rights, or in this case, children's rights issues. If children are indeed viewed as the leaders of the future, their situation at present, here and now, should not be forgotten in order that they are prepared for this expected role.

Endnotes

1. Mongolia, considered part of the Northeast Asian subregion, is covered by the discussions in this article though not specifically cited.

2. The Committee devoted a Day of General Discussion on this topic on September 1995 and will adopt a General Comment on Juvenile Justice perhaps in 2006.

3. General Assembly resolution 40/33 of 29 November 1985

4. General Assembly resolution 45/112 of 14 December 1990

5. General Assembly resolution A/RES/48/134 of 20 December 1993

6. For further information on the UN study visit www.violencestudy.org/r25


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