UiT Arctic MSCA-IF Program
- Name and affiliation
Professor dr. juris Trude Haugli, Law Faculty, UiT the Arctic University of Norway
- Research field
Child Law, Human Rights and Constitutional law
- Short description of research field/project
Children’s Constitutional Rights
The UN Convention on the Rights of the Child (CRC) constitutes the international baseline for children as right holders. States have a positive obligation under the CRC to respect, protect and fulfil the rights of the children.Since the direct effect of the international protection is limited, national legislation implementing the CRC is crucial for assuring efficient protection of those rights. Whether and to what extent and at which level the CRC is implemented in national law varies widely, and this needs to be further investigated.
Ideally, national constitutionsshould include specific provisions for children, but in practice, constitutional protection varies significantly.There is a need to investigate further the effectiveness of the constitutional protection, by looking at the interrelationship between regulation of children’s rights at the constitutional level, implementation of children’s rights in legislation and the enforcement of children’s rights. Do these elements influence each other, and if so how and why? The project should seek to answer these questions by analyzing the implementation and enforcement of selected children’s rights in selected countries.
The researcher should have experience from human rights research, preferably from a child law perspective. The researcher will be part of the Child Law Research Group at the Faculty of Law, UiT.
- Long description of project
Children’s Constitutional Rights
Background
In 1989, the General Assembly of the United Nation adopted the UN Convention on the Rights of the Child (hereafter CRC). Since then almost all member states of the United Nations have ratified the Convention. The CRC constitutes the international baseline for children as holders of particular rights. The European Convention on Human Rights (the ECHR) from 1950 has no specific regulations on children. Still,in case law from the European Court of Human Rights (ECtHR) one can identify that the Court is increasingly recognizing children’s rights. The EU Fundamental Rights Charter includes specific rights for children. Under international law,states have a positive obligation to respect, protect and fulfill children’s rights.
The obligationof the State Parties under the CRCis according to the Committee on the Rights of the Child also to protect children’s rights in their domestic legal systems. Because the direct effect of the international protection is limited, it is important for the states also to adopt domestic legislationat all levels on this field.
The European Commission for Democracy through Law (Venice Commission) adopted in 2014 “Report on the protection of children’s rights, International standards and domestic constitutions.”See study was a part of the Council of Europe Strategy for the Rights of the Child (2012-2015).One of the main questions was “How can children’s rights be included in national constitutions with a view to thus promoting their effective implementation”. The study uncovered significant variation in the constitutional protection of children’s rights. However, the protection afforded by legislation (acts of parliament) and the enforcement of the rights are not directly dependent on the level of constitutional protection.
In a new study the researcher will also be able to draw on experiences from an ongoing project on constitutional rights for children in the five Nordic countries, initiated by the Child Law Research Group at UiT. Children in the Nordic countries are recognized as independent, capable subjects and holders of particular rights. The Nordic countries have to a large extent similar historical, social, cultural and legal structures. Still, the constitutional protection of children’s rights varies significantlybetween these countries similarly to within member states of the Council of Europe.
Similarly tothe European study referred to above,one asks in the ongoing Nordic studywhether and how children’s rights are regulated in the different constitutions:Which rights are recognized ata constitutional level? Further, are children’s rights (also) regulated ata semi-constitutional level, in domestic law or asuncodified principles of law? Which rights if any does the Constitution include: the right to protection, participation or provision, a dedicated provision for childrenor a combination of these? Are children considered a group in need of particular protection or are theyrecognized as right-holders with particular/individual rights, or a combination? Are children’s right directly enforceable and if,what remedies are available to children? Are the remedies limited to administrative remedies, or are judicial remedies also included? (These approaches are based on the methodology used in the Venice report p. 19-26.)
The ambition in the ongoing project is to analyze children’s constitutional rights in the Nordic countries both generally and by in-depth study of selected rights. The status and integration of the CRC at a national level is an integrated part of the project. By using a comparative approach, the study examines similarities and differences among these countries.
By recruiting a talented, young researcher through the mobility program Marie Skłodowska Curie Individual Fellowship (MSCA-IF) it could be possible to broaden the European and the ongoingNordic study. This could be done by doing in-depth studies at selected areas in selected countries and/or by looking at countries representing legal cultures other than the European.
A possible approach could be to investigate and compare the protection granted by the CRC with the scope of protection offered by national constitutional law.An example: The right to be heard in decisions that affect the child (CRC article 12) is of crucial importance when regarding children as autonomous holders of rights. Still only four of the member states of the Council of Europe have included this right in their constitutions. The researcher could look further into this topic, and also investigate whether lack of inclusion at constitutional level effectsnationallegislation.
A very topical question is also which children are protected by a state’s constitution and the role and importance of citizenship in this connection.
A hypothesis is that the influence on interpretation of different constitutions by international law will increase in the years to come. Yet there is also a tendency towards a stronger nationalism. This may also be phenomenon to be investigated in the project.
The outcome of the research will of course depend on which perspective the researcher would like to take and how he or she will design the project. Anyway,to explore the impact of differing constitutional provisions on the implementation of children’s rightsand perhaps identifying examples of best practice will give a contribution to the knowledge-based society. It will also contribute to the further development of the research field onchild law and human rights for children.
The researcher should have experience from human rights research preferably from a child law perspective. At the Law faculty, the researcher will be included in the Child Law research Group and will be welcome to discuss the project with the members of the research group on Constitutional rights. A Nordic child law network will also be available for discussions.