This chapter highlights two distinct perspectives – international and domestic – on the judicial application of the Convention on the Rights of the Child (the Convention). The international perspective is framed by reference to article 4 of the Convention and the maximalist approach taken by the Committee on the Rights of the Child. The domestic perspective is conceptualised by reference to the direct and indirect application of the Convention as permitted by the reception rules in monist, dualist, and hybrid legal systems. The chapter argues that the international and domestic perspectives on the judicial application of the Convention differ on account of the different institutional positions of the bodies that control them (the Committee vs the domestic courts). The maximalist international position promoted by the Committee is often unavailable to the domestic courts, although it may be a potential inspiration to them. Canvassing these distinct perspectives provides the context for a better understanding of the limitations in the domestic courts’ engagement with the Convention, detailed in the subsequent chapters.

Drawing from the case studies on the judicial application of the Convention on the Rights of the Child (the Convention) in France, Australia, South Africa, and the United Kingdom, this chapter argues that albeit fundamentally different in form, the direct and the indirect application of the Convention, respectively, produce similar effects. Both permit a meaningful engagement with the Convention and the development of child-sensitive reasoning. The chapter highlights that alongside the traditional methods of engagement with the Convention, courts have applied it in a sui generis manner. This demonstrates that the traditional reception rules are unable to capture the diversity of courts’ interaction with the Convention. The chapter discusses the factors that influence the courts’ application of the Convention and highlights the importance of the domestic structure of reception for the judicial application of the Convention. The chapter also concludes that article 3(1) of the Convention has been a favourite of the courts, who see it as a rich repository of legal principles and standards that allow them to justify a distinct legal treatment for children.

This chapter summarises the implications of this comparative study for the development of the judicial application of the Convention on the Rights of the Child (the Convention) in jurisdictions beyond this study. It argues that domestic reception rules are a necessary starting point but do not fully explain how the courts apply the Convention. It pleads for more attention to the sui generis methods of engagement with the Convention, but also to the domestic structure of reception as an often overlooked factor that influences its application. The chapter calls for a more systematic attention to the interaction between the Convention, and the overlapping domestic and international instruments. This will enable a better understanding of the issues in relation to which courts find the Convention most useful. The chapter argues that for the Convention to preserve or claim its rightful place among international instruments with impact on domestic judicial reasoning, the added value of the Convention must be better understood. Lastly, the chapter highlights the role of the courts and the Committee on the Rights of the Child in further developing the judicial application of the Convention.

Treaty bodies fulfil a range of functions, from promotional activities to monitoring and adjudicating complaints. These tasks, which are taken for granted today, are the result of states’ willingness to vest treaty bodies with the mandate of monitoring compliance. This constituted a remarkable shift away from earlier notions of sovereignty in a system where states were, essentially, the sole authors, interpreters and enforcers of rights and obligations. What accounts for this change and why do states agree to be part of such regimes? This question, which has attracted considerable attention in recent years, poses a particular challenge because it does not seem to conform to the realist views that used to hold considerable sway in international relations, according to which states use institutions as a means to exercise power. Alternative theories emphasise states’ interests or point to ‘acculturation’. This denotes a process of interaction of various actors which generates a pull to build and join credible human rights mechanisms as part of an international order. Indeed, these mechanisms form part of broader international institution building, particularly at the UN level.

A comprehensive discussion of the UN’s human rights work and institutions is an infinite task given that every atom of the Organisation is engaged in one way or another in the promotion or protection of rights. As a result, a large part of this chapter is devoted to the examination of the principal human rights institution, the Human Rights Council (HRC), and the various mechanisms operating under its wing. This includes a discussion of the universal periodic review (UPR), the HRC’s complaint procedure, as well as its so-called special procedures. The chapter then goes on to analyse the important human rights dimension of the UN General Assembly (UNGA) and the UNSC, since both possess authority to take direct action against violations, in addition to their standard-setting capacity. Institutions that have produced important human rights work, but whose mandate is otherwise peripheral to human rights, such as the International Court of Justice (ICJ), are mentioned in this chapter but are not extensively analysed. Equally, space precludes us from examining specialised agencies such as UN International Children’s (Emergency) Fund (UNICEF) and the UN High Commissioner for Refugees (UNHCR).

Chapter 1 examines the theoretical basis of the best interests principle. This chapter examines the implications and demands of the principle, and it explores how the principle is to be applied. In line with the guidance provided by the Committee on the Rights of the Child, the best interests principle is understood to be a right, the content of which is guided by reference to the other rights contained in the UNCRC. The advantage of this approach is that it allows the best interests principle to be realised in a structured manner, namely one that is guided by the UNCRC. The chapter provides further nuance to the best interests principle by identifying a new conceptual framework for its application. This framework is designed to overcome the perceived deficiencies of the principle. The framework not only is largely based on the guidance of the Committee, but also suggests that social science literature should be incorporated into the best interests assessment to provide broader guidance about what is ‘best’ for children in particular situations.

The responsibility for implementing and complying with international standards rests firmly with states. However, post-conflict states often lack resources and may also face significant socio-political challenges. Chapter 3 explores whether international child rights standards make any allowances for the context in which they are to be implemented, reviewing the ‘escape’ route of derogations, considering whether the economic, social and cultural context may be taken into account, and addressing textual flexibility. It also expounds factors, including resources and public opinion, that might affect the operationalisation of juvenile justice standards in particular. The state does not, however, operate in a vacuum. There is a range of international mechanisms that promote implementation of, and compliance with, human rights. This chapter reviews these mechanisms as they relate to children’s rights, examining in particular the Committee on the Rights of the Child established by the CRC to monitor state compliance with the treaty, before focusing in some detail on UNICEF. The chapter provides an overview of UNICEF’s institutional nature, its relationship with the CRC and its stance on juvenile justice, all of which are key to understanding UNICEF’s involvement in Rwanda and its approach to child génocidaires.