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김태천 國際人權法學會 1996 國際人權法 Vol.1 No.-
The Convention of the Rights of the Child (CRC) was adopted by the UN General Assembly in 1989, and entered into force in 1991. Five years after its entry into force, in 1995, the Convention gains ratifications of 168 states as well as wide support at the international level. This success may be explained in part by the end of the Cold War, but it also necessarily reflects an evolution in the rights of the child. Previously, most international instruments about the protection of child were non-binding, developmental or charity oriented than inspired by the concept of individual rights. However, the CRC is, like the other UN human rights treaties, based on the notion of binding rights for individuals. The Convention avoids distinguishing between the two sets of rights as defined by the two International Covenants on Human Rights, and incoporates all human rights for children. It could be seen as a reflection of the fact that all rights are indivisible, interdependent and interrelated. The CRC is based on a philosophy or general principles about the rights of the child. The general principles are ① the best interests of the child (Art. 3), ② respect for the views of the child (Art. 12), ③ the right to suvival and development (Art. 6), and ④ nondiscrimination (Art. 2). Further, the Convention set forth the substantive Articles about the rights of the child. In view of this holistic approach of the Convention, it is not obvious which of the substantive Articles should be seen as belonging to the catagory of economic, social and culural rights. However, in 1991, the Committee on the Rights of the Child made economic, social and culural rights of the child grouped together the four headings, namely ① basic health and welfare, ② education, leisure and cultural activities, ③ special protection measures (protection against exploitation), and ④ family environment and alternative care. By the way, the CRC has the most difficult problem in implementing those rights; namely, the problem of resources limitations. In other words, with regard to economic, social and culural rights rights. States Parties shall undertake all appropriate legislative, administative and other measures 'to the maximum extent of their available resourses' (Art. 4). This article is a reflection of a concern that some provisions of the Convention could only be implemented if and when sufficient resources were available. However, it does not provide an escape clause for the less resoureces countries, but asks all States Parties to give priority within their means to the Convention. All governments, therefore, should use their available resources to the maximum extent to meet the needs of children. The international procedures designed to monitor the implementation of the CRC are not very different from those established in relation to the other UN human rights treaties. The Convention provides for only the reporting system, and not the interstate complaints system or the individual petition system. The Committee of the Rights of the Child, like other treaty monitoring bodies, has issued guidelines as to the contents and the structure of these reports. The consideration of the reports is followed by a public statement. 'Concluding Observations', with its findings and recommendations. The working of the Committee is, however, not the most important aspect of the monitoring and enforcement efforts. The national procedure seems more crucial. In fact, much of the work of the Committee aims at encouraging a good national process. Our government ratified the CRC in December 1991, but formulated reservations 3 Articles out of the Convention. The contents of the reservations were ① the right of the child to maintain personal relations and direct contact with both parents on a regualr basis (Arts. 9(3)), ② the system of adoption that is authorized only by competent authorites who determine (Arts. 21(a)), and ③ the right of the child accused of having infringed the penal law, namely the guarantees to have this decision and any measure imposed by judicial body according to law (Arts. 40(2)(a)(5)). We have lots of legal provisions about the protection and assistence of the child in our country; for example, the Constitutional Law, the Basic Law on the Juvenile, the Law on the Welfare of the Child, the Law on the Welfare of the Mother and the Child, the Labour Law, the Civil Law, the Special Law on Adpotion, the Penal Law, the Law on the Young Man, the Law on the Protection of the Non-Maturity, and so on. However, most of them doesn't provide the rights of the child, but only the prohibitions for the protection of the child. Our legal system on the rights of the child, therfore, continues to hold the traditional protection theory of the child.