Best interests in the CRC system: the CRC Committee’s

Because the concept of the best interests of the child as a standard of human rights law derives from the CRC, it seemed necessary to explore the interpretation of the concept in the CRC system in depth. As the CRC Committee is the treaty body assigned to monitor states parties’ progress in implementing the convention, its conceptualisation of the best interests concept forms a starting point for how the concept is interpreted in the CRC system. Article IV, ‘A Focus on Domestic Structures: Best Interests of the Child in the Concluding Observations of the UN Committee on the Rights of the Child’, addresses this question by analysing the Committee’s COs.

The CRC Committee has several ways of monitoring the implementation of the CRC and contributing to its interpretation. The Committee issues general comments, examines state reports and issues COs based on them, as well as considers individual complaints regarding alleged CRC violations.⁴¹⁶ Of these three tasks, examining state reports and issuing COs, which are the focus of Article IV, consume the majority of the Committee’s time and resources. The

414 Betlem and Nollkaemper, ‘Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation’ 574-575.

415 Nollkaemper, National Courts and the International Rule of Law 147.

416 In addition, the Committee conducts other activities, such as Days of General Discussion. For a more detailed description of the reporting process, see Article IV, 102-103.

reporting procedure is the original monitoring activity: starting from 1993, states are expected to submit their initial reports to the Committee and, thereafter, a report every five years.⁴¹⁷ A vast body of COs are now available. The Committee’s views have a soft law status, but it is a commonly accepted view that by ratifying a convention, states accept that the interpretation of the convention changes over time. Treaty bodies play a key role in this development as authoritative interpreters of their respective treaties. Despite their formal non-binding status, therefore, the Committee’s views are important in interpreting the CRC, and states parties are expected to follow them.⁴¹⁸

The CRC’s reporting mechanisms face challenges. The reporting process may suffer from various biases: countries with a comparable human rights performance can receive differential treatment; the review may be biased towards certain issues for political reasons; and cultural differences may be instrumentally employed in the review process.⁴¹⁹ West-centrism, for example, may affect the Committee’s vision.⁴²⁰ The number of reports per Committee session has increased, meaning that the Committee has less time to allocate to each report than before.⁴²¹ The reporting procedure also suffers from non-reporting, late reporting and a backlog of reports pending before the CRC Committee, and the large amount of human rights treaties results in almost constant report drafting.⁴²² The effectiveness of recommendations depends on how they are translated to practice at the domestic level. Earlier research has shown that the follow-up of COs varies and domestic courts selectively engage with the findings of human rights treaty bodies.⁴²³ Previous quantitative accounts indicate low judicial engagement with the CRC

417 General Comments began in 2001, individual complaints in 2014.

418 For a discussion on the legal status of the COs, see International Law Association, Committee on International Human Rights Law and Practice, ‘Final Report on the impact of findings of the United Nations human rights treaty bodies’ (Berlin 16-21 August 2004), paras 15-27; Jasper Krommendijk, The Domestic Impact and Effectiveness of the Process of State Reporting under UN Human Rights Treaties in the Netherlands, New Zealand and Finland: Paper-pushing or policy prompting? (Intersentia Antwerp 2014) 7-9. See also Article IV, 103.

419 Valentina Carraro, ‘The United Nations Treaty Bodies and Universal Periodic Review: Advancing Human Rights by Preventing Politicization?’ (2017) 39 Human Rights Quarterly 943.

420 The Committee has sometimes expressed concern that ‘the persistence of certain local customs and traditions’ or ‘customary law’ impedes the implementation of Article 3, without specifying what those traditions are. See eg Committee on the Rights of the Child, ‘Concluding observations: Botswana’

CRC/C/15/Add.242 (3 November 2004), para 31; Committee on the Rights of the Child, ‘Concluding observations: Yemen’ CRC/C/15/Add.267 (21 September 2005), para 35.

421 However, time and resource constraints have been present from early on; see Cohen, ‘The Developing Jurisprudence of the Rights of the Child’ 28-29.

422 Jaap E Doek, ‘The CRC: Dynamics and directions of monitoring its implementation’ in Antonella Intervenizzi and Jane Williams (eds), The Human Rights of Children From Visions to Implementation (Ashgate 2011) 107.

423 See ibid 103-104; Machiko Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’ (2018) 67 International and Comparative Law Quarterly 201-232; Jasper Krommendijk, ‘Finnish Exceptionalism at Play? The Effectiveness of the Recommendations of UN Human Rights Treaty Bodies in Finland’ (2014) 32 Nordic Journal of Human Rights 18, 27.

Committee’s output, including with COs.⁴²⁴ One study, however, found the CRC Committee’s recommendations to be more effective compared to those of the other five treaty bodies analysed.⁴²⁵ Furthermore, it has been demonstrated that domestic respect of human rights in general is improved when an active domestic civil society contributes to the reporting process.⁴²⁶

Article IV makes an original contribution to the field as the largest published review of COs. To examine the Committee’s understanding of best interests, I could also have analysed GC14 and other general comments. I decided to focus on COs because they are the Committee’s main monitoring activity, and I assumed they might offer a more concrete and deeper view of best interests than the general comments, which contain interpretations that are both well-known and, as I have claimed earlier, have not sufficiently clarified the nature of the concept.⁴²⁷ I presupposed that because of the function of COs to guide states and comment on real-life issues, they would paint a picture both comprehensive and more detailed than the general comments (although, as I discuss later, these expectations were only partly correct). A systematic analysis also seemed necessary to draw out the Committee’s views in the COs, which are somewhat hidden in the massive amount of details and polite political-legal dialogue between the Committee and the states.

As I noted in Article IV, a lack of research analysing COs has caused a significant part of the Committee’s interpretation of the concept to be overlooked.⁴²⁸ Of course, the Committee’s views expressed in the COs have to be considered with those in the general comments and views concerning individual communications.

The analysis of general comments in section 2.3 of this summary is a step in this direction. Especially in newer COs, the Committee often refers to its own general comments when giving specific recommendations, which contributes to increased alignment of jurisprudence.

Studying the COs revealed two interrelated findings. The first is that the Committee discusses the best interests of the child in various recurring contexts.

424 Couzens, ‘CRC Dialogues: Does the Committee on the Rights of the Child “Speak” to the National Courts?’

105-106.

425 The study examined the effectiveness of COs in the Netherlands, New Zealand and Finland. See Krommendijk, The Domestic Impact and Effectiveness of the Process of State Reporting under UN Human Rights Treaties in the Netherlands, New Zealand and Finland: Paper-pushing or policy prompting? 213-363.

426 Gráinne de Búrca, ‘Human Rights Experimentalism’ (2017) 111 American Journal of International Law 277, 298-309.

427 Previous commentators have argued with reference to general comments that the Committee has not defined the best interests of the child. See Vandenhole, ‘Distinctive characteristics of children’s human rights law’

26; Ivana Isailovic, ‘Children’s rights and LGBTI persons’ rights: Some thoughts on their “integration”’

in Eva Brems, Ellen Desmet and Wouter Vandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape (Routledge 2017) 199. See also Cantwell, ‘Are “Best Interests” a Pillar or a Problem for Implementing the Human Rights of Children?’ 64.

428 Article IV, 101.

Whereas in the drafting phase of the CRC best interests were often mentioned as an exception to the rule – states should do X, unless it is not in the child’s best interests – in the COs, most of the recommendations treat best interests as a main rule.⁴²⁹ The Committee has connected best interests to other CRC general principles, to children in vulnerable situations, such as migrant children or children of imprisoned parents, and to alternative care and adoption issues, as well as to some civil and political rights and ESC rights.⁴³⁰ Family unity seems to be considered a central component of best interests. The article shows that the Committee offers no comprehensive definition of best interests in the COs.

Despite the variety of contexts, the concept is rarely defined except for providing examples of what best interests are not.⁴³¹ At times, the Committee gives clues about the nature of the obligation expressed by Article 3(1) CRC, for example, by characterising best interests as a positive obligation and directly applicable.⁴³² Other recurring interpretations are a strong connection between best interests and human rights and the need to take into account a variety of factors when assessing best interests. However, while the Committee often emphasises the importance of Article 3(1), for example, by underlining the indivisible and interdependent nature of the CRC as well as the relevance of best interests in interpreting the CRC, the COs provide little guidance for defining the best interests concept.

As I claimed in Article IV, the finding that best interests are discussed in various contexts is interesting for several reasons, but it is not particularly useful when trying to grasp the Committee’s understanding of the concept. The selection of recurring themes depends on several factors, such as the content of state reports, and does not necessarily reflect the Committee’s overall views on the contexts in

429 See, however, eg Committee on the Rights of the Child, ‘Concluding observations on the second periodic report of Gabon’ CRC/C/GAB/CO/2 (8 July 2016), para 65, where the Committee recommends supporting family reunification unless it is not in the best interests of the child; Committee on the Rights of the Child,

‘Concluding observations on the combined fourth and fifth periodic reports of Chile’ CRC/C/CHL/CO/4-5 (30 October 201CRC/C/CHL/CO/4-5), para CRC/C/CHL/CO/4-5CRC/C/CHL/CO/4-5(d) and Committee on the Rights of the Child, ‘Concluding observations:

Dominican Republic’ CRC/C/DOM/CO/2 (11 February 2008), para 53(e), where contact with parents while the child is in care is expressed as the main rule, unless not in the child’s best interests; and Committee on the Rights of the Child, ‘Concluding observations: United Kingdom of Great Britain and Northern Ireland’ CRC/C/GBR/CO/4 (20 October 2008), para 45(d), where contact with the imprisoned parent is mentioned as the main rule, unless it is not in the child’s best interests. Freeman has previously noted the Committee’s tendency to define the concept by negation, see Freeman, ‘Article 3: The Best Interests of the Child’ 51-60.

430 For the contexts in more detail, see Article IV, 104-109, including table 1 displaying the concerns and recommendations for each context.

431 Similarly, see Freeman, ‘Article 3: The Best Interests of the Child’ 51-60.

432 In practice, national courts do not always consider Article 3(1) as directly applicable; however, see eg Wouter Vandenhole, ‘Belgium’ in Ton Liefaard and Jaap Doek (eds), Litigating the Rights of the Child:

The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer 2015) 110-112, who notes that parties and judges often invoke concept as a general principle of law, which does not require them to accept the direct effect of Article 3(1) CRC.

which best interests should (or should not) be considered.⁴³³ The COs mirror the Committee’s efforts to highlight areas that it considers particularly problematic regarding the implementation of the CRC in a particular state. To enhance the effectiveness of the COs, concentrating on a limited number of critical issues seems to be a good strategy.⁴³⁴

Secondly, and most interestingly, Article IV found that the COs display a structural view of the best interests of the child; instead of defining the concept, the Committee focuses on describing what kind of active measures states must take to implement Article 3(1). In Article IV, I identified six cross-cutting themes that outline such measures and used these themes as a framework to analyse the COs. Best interests should (1) be integrated into national legislation together with criteria for assessing them and also (2) incorporated in policies, procedures and decisions; the concept is effective only if implemented in practice. Furthermore, the Committee has emphasised (3) cooperation, both national and international, as well as (4) awareness-raising and training of professionals.⁴³⁵ The Committee has also recognised the (5) interdependent relationship of resources and best interests. Finally, (6) monitoring and impact assessments are essential to fulfilling the requirements of Article 3(1).

While composing a definition of best interests applicable in all circumstances would be impossible, which partly explains the lack of a definition, the focus in the COs on structures and not content remains interesting. The Committee’s focus on active measures can be interpreted as reflecting its understanding of best interests as a positive obligation, which sheds light on why the best interests concept does not function well in situations where best interests are limited or balanced with another interest or right.

The cross-cutting themes I identified are almost identical to the general measures of implementation (GMIs) previously introduced by the Committee.⁴³⁶ In this respect, the Committee has been consistent regarding what it expects from states. As I argued in Article IV, this similarity implies that the Committee views other CRC obligations as requiring similar active measures because the GMIs are relevant for the implementation of the whole CRC. The Committee often connects Article 4 CRC, the principal article reflecting the GMIs, to best interests

433 See eg Article IV, 104 and 117.

434 Krommendijk, The Domestic Impact and Effectiveness of the Process of State Reporting under UN Human Rights Treaties in the Netherlands, New Zealand and Finland: Paper-pushing or policy prompting? 391-392.

435 Based on a review of the CRC Committee’s general comments, Williams has argued that while professionals play a crucial role in effectively implementing the CRC, more attention should be given to issues related to translating the CRC into professional practice, see Williams, ‘The Role of Professions in Effective Implementation of the CRC’.

436 Implementation measures described in GC14 also reflect the GMIs to an extent; see GC14, paras 15(a)-(h).

in the context of budget allocations. When considering how to categorise the cross-cutting themes, I did not have the GMIs in mind; rather, the focus on the structural level was obvious, and the categories were clearly distinguishable. When I noticed the resemblance between the categories and GMIs, I decided not to mould them into the format of the GMIs but to present them as a distinct categorisation.