Towards the Interpretation of 'the Child' Concept in Intarnational Law (Oleg Starovoitov)

Раздел - "Международное право", рубрика - "Права человека"By the adoption of the 1989 Convention on the Rights of the Child, the international community recognized the necessity to provide special protection to children b y reason of their physical and mental immaturity, giving top priority to the issue of definition of "the child" concept in international law. Even though "the child" concept is considered in social context, it is very important to give definition or at least to mark its age boundaries because the child as a human being enjoys special rights only during a certain period. Definition difficulties in international law lie in the great differences existing between the states in cultural, religions, political and legal systems (in particular, various laws on abortions), which make unreal the development of an adequate definition of the term "the child" that could satisfy all parties concerned. "The child" concept is traditionally connected with the age criterion in the legislation of different states, i. e. there is a certain period of time within which an individual is called a child. International l aw also uses time boundaries and tried to give definition to "the child" concept by the establishment of the moments when the legal protection of the children starts and ends. During the discussion on the draft of the 1989 Convention on the Rights of the Child the issue of definition of the initial period of a child's life raised serious debate. The states divided on the issue of the moment, at which a human being is recognized as a child: from the time of conception or from the time of birth. Numerous variants of Article 1 (on the definition of "the child" concept) did not satisfy the parties. After long discussions a compromise settlement was worked out: to reproduce the 1959 Declaration text on the rights of "the child" in the Convention preamble "the child by reason of his physical and mental immaturity, needs special safeguards and care including appropriate legal protection, before as well as after birth" but not to mention the minimal age at which a child's protection starts. Article 1 has the following text: "a child means every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier". Thus, the Convention on the Rights of the Child does not contain regulations obliging the states to guarantee the life of the child yet unborn. Only the Commission preamble which does not have legal force mentions it. The establishment of the period of time after which an individual attains maturity is also very complex. The Convention on the Rights of the Child fixed the upper boundary at 18 years with the stipulation "unless under the law applicable to the child, majority is attained earlier".The age of 18 is also set b y other international instruments regarding children protection: Article 1 of the Additional Convention on eliminating slavery, slave trade, institutions and customs similar to slavery; Article 3 of the 1993 Convention on children protection and cooperation in international children adoption; Article 2 of the 1999 ILO Convention on prohibition and immediate actions on elimination of the worst forms of children's labour; Article 1 of the 1996 European Convention on Implementation of the Rights of the Child. Article 6 of the International Covenant on Civil and Political Rights prohibits enforcement of capital punishment towards individuals below the age of 18 though it does not use here the word "the child"; Article 2 of the 1990 African Charter of the rights and well-being of the child defines the child as "any human being below the age of 18" with no exception, thus setting a higher standard than the Convention on the Rights of the Child. However, some international instruments set a different age limit. First of all we should mention the international agreements concerning a certain aspect of a child's life. The 1980 Hague Convention on civil aspects of kidhapping and the 1980 European Convention on recognition and coming into force of decisions on trusteeship over children and restoration of trusteeship over children recognize that they treat any individual below the age of 16 as a child (Articles 4 and 1 respectively). Article 2 of the 1962 Convention on marriage consent, minimal marital age and marriage registration gives a right to the member-states to define minimal marital age. In so doing, Principle II of the 1965 Recommendation of the General Assembly on marriage consent, minimal marital age and marriage registration suggests to the states to set the minimal marital age of 15 years. International humanitarian law sets the age of participation in military conflicts and the drafting age at 15 (Article 38 of the Convention on the Rights of the Child, Article 77 of Additional Protocol I to the 1949 Geneva Convention, Article 4 of Additional Protocol II to the 1949 Geneva Convention). At present, an Additional Protocol to the Convention on the Rights of the Child regarding raising the age of participation in military conflicts and the drafting age up to 18 is being developed. The ILO 1972 Convention N 138 on the minimal employment age sets the minimal age at 15 (Article 2 (1)). However, the Convention allows the states with the low level of social and economic development to set the minimal age of employment at 14 (Article 2 (4)). The facts above mean that international law gives no definite age of transformation at which an individual is regarded to attain maturity. However, the adoption of the special Convention on the Rights of the Child (also the adoption of the African Charter of the rights and well-being of the child at the regional level), reconsideration of the age criteria in some agreements (including international humanitarian law) demonstrate the tendency to recognize b y international law the age of 18 as the most accepted n o rm for establishing the time of the end of the child's legal protection. As for the beginning, it is granted from the child's birth, though the states in their national legislation may extend protection up to the moment of conception