Particularism and the African Charter on the Rights and Welfare of the Child: How the creation of the African Charter on the Rights and Welfare of the Child reflects particularism in human rights law.

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University of Amsterdam

Faculty of Law

Particularism and the African Charter on the Rights and

Welfare of the Child:

How the creation of the African Charter on the Rights and Welfare of the

Child reflects particularism in human rights law

Name: Emma Alexandra Broholm, 12283150 Thesis Supervisor: Prof. Dr. Y. M. Donders Date of Submission: 20 July 2019

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List of Abbreviations

AAA American Anthropological Association

ACHPR African Charter on Human and Peoples’ Rights

ARCWC African Charter of the Rights and Welfare of the Child

ANPPCAN African Network for the Prevention and Protection against Child Abuse and Neglect

AU African Union

Charter African Charter of the Rights and Welfare of the Child Convention The United Nations Convention on the Rights of the Child CRC The United Nations Convention on the Rights of the Child CRC Committee Committee on the Rights of the Child

GC General Comment

ICESCR International Covenant on Economic, Social and Cultural Rights

ILO International Labour Organization

OAU Organization of African Unity

UDHR The Universal Declaration of Human Rights

UN The United Nations

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Chapter 1 Introduction

“How can the proposed Declaration be applicable to all human beings, and not be a

statement of rights conceived only in terms of value prevalent in the countries of Western Europe and America?”1

This comment was made by the American Anthropological Association (“AAA”) before the Universal Declaration of Human Rights (“UDHR”) was adopted. The quote captures the essence of the discussion of whether human rights can be universal or whether they are subject to cultural and moral beliefs and particularities. Central to this discussion are the theories of universalism and particularism. Both theories are relevant to the creation of international human rights law, as both the United Nations (“UN”) and regional organizations, such as the European Union and the African Union (“AU”), create human rights law, which its signatories are bound by. These organizations have created treaties on the same subject matter, such as women’s rights or children’s rights. Why is there a need to create region-specific treaties? If States decide to adhere to international treaties, what is the reasoning behind the creation of a region-specific treaty covering the same subject matter, especially after the international treaty has already been established? This matter is central in the following thesis.

The United Nations Convention on the Rights of the Child (“CRC” or “Convention”), adopted in 1989, is one of the most ratified international treaties to date.2 Nonetheless, shortly after the universal treaty was adopted, the Organization of African Unity

(“OAU”), the predecessor of the AU, adopted a region-specific children’s rights treaty in 1990, which became the African Charter on the Rights and Welfare of the Child

(“ACRWC” or “Charter”). To date, this is the only regional children’s rights treaty.

1_{American Anthropological Association, ‘Statement on Human Rights’ (1947), p. 539.} 2_{United Nations Treaty Collection, source available at:}

treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en [accessed 30

2_{United Nations Treaty Collection, source available at:}

treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en [accessed 30 May 2019].

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The goal of this thesis is to determine why the Organization of African Unity decided to create the ACRWC and the relevance of the legal theories of universalism and

particularism to this decision. This study thus sets out to answer the following question:

To what extent can the development of children’s rights law in the African continent be seen as a reflection of particularism of human rights?

The distinction between universalism and particularism will be discussed in chapter two. On the basis of literary research, the two theories will be defined and compared to one another throughout the chapter. Furthermore, one critique of universalism, cultural relativism, will be discussed. This will be done to not only understand the full scope of universalism, but also to demonstrate how this critique differs from particularism. This will allow for a better understanding of the relation between universalism and

particularism. The chapter will be descriptive in nature, as it will contain a discussion on legal theory and will not suggest the superiority of one theory over the other. Chapter two is relevant to the research question as it determines the legal theory of universalism and particularism, necessary to determine how the concepts relate to children’s rights in Africa.

Chapter three compares the content of the CRC and the ACRWC. The analysis will focus on a comparison of major differences between the two treaties, namely provisions found in the CRC, which were excluded from the ACRWC, and provisions added in the ACRWC, concerning matters not touched upon in the CRC. Furthermore, the analysis will also compare provisions similar in content, thus focusing on seemingly minor differences, which are nonetheless significant. Similar to chapter two, this chapter will contain a descriptive analysis. Chapter three is relevant for the research question as it determines how the two treaties covering the same subject differ, especially considering the fact that the ARCWC was influenced by the CRC.3 By doing so, this chapter might be able to highlight the differences between children’s rights when looking at them from a universalist perspective or a particularist perspective.

3_{Art 46 ARCWC.}

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In chapter four, an analysis will be done of the treaty drafting process of the CRC and the ACRWC, and the stance of the African States during each process. Throughout the chapter, certain provisions examined in chapter three will be discussed, focusing on the participation of African States or the historical significance of these provisions within the African continent, to try and determine why certain provisions were included or excluded from the ARCWC. The sources that will be used include the travaux préparatoires of the CRC, literature discussing the drafting process of the ARCWC, and the voting patterns and reservations made by the African States to each treaty. Chapter four is relevant for the research question as it determines how African States participated in the creation of the CRC, which might provide a possible explanation as to why the region-specific treaty was created and how it relates to particularism within the African continent.

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Chapter 2 Universalism and Particularism

To determine to what extent the development of children’s rights in the African continent can be seen as a reflection of particularism of human rights, one must first determine what particularism entails. Considering that particularism does not independently exist from universalism4, both legal theories will be discussed in this chapter. First, the concept of universalism will be discussed, namely what it entails, the critique of cultural

relativism, and a possible compromise between these two theories. After the idea of universalism has been reviewed, the concept of particularism will be discussed, paying special attention to how it relates to universalism. The aim of the chapter is to determine what the distinction between universalism and particularism entails.

2.1 Universalism

Universalism, in its essence, is quite simple. It asserts that every human being has certain inalienable rights due to the fact that they are human.5 An individual, who believes that they have certain rights based on the fact that they are human, cannot hinder others from enacting those same rights.6 The universality of human rights does not automatically entail that every person is also able to enjoy these rights.7 Nor does the theory of universality claim that human rights are legitimized by their universality. 8 This is not what universalism implies. Universalism specifically entails the principle that “human rights are universal, because they are universally held by all human beings”.9

2.1.1 Criticism – Cultural Relativism

While universalism asserts the universality of human rights, critics assert that human rights are not as universal as the proponents of universalism might believe them to be. Cultural relativism is the critique most relevant to discuss in this chapter, because the

4_{M.B. Dembour, ‘Critiques’, in D. Moeckli (ed.), International Human Rights Law, p. 53.} 5_{Donders (2010), p. 16.}

6_{Davies (2008), p. 444.} 7_{Donnelly (2007), p. 283.} 8_{Donnelly (2008), p. 195.} 9_{Donnelly (2007), p. 283.}

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discussion of cultural relativism highlights how the distinction between universalism and cultural relativism differs from the distinction between universalism and particularism. Cultural relativism holds that human rights norms cannot be universal, as the moral values on which they are based are relative to the culture from which they originate.10 The argument made is that universalism does not recognize that morals derive from a particular culture and that rights find their validity in these morals.11 There are a number of different reasons as to why cultural relativists object to the concept of universalism12, but the one most relevant for this thesis is the notion that “no culture or state … is justified in attempting to impose on other cultures or states what must be understood as ideas associated particularly with it”.13 This critique of universalism is implicit in the

quote by the American Anthropological Association given in the introduction of this thesis. As a brief reminder, and to expand on the quote, the AAA stated the following, in relation to the adoption of the Universal Declaration of Human Rights:

“How can the proposed Declaration be applicable to all human beings, and not be a

statement of rights conceived only in terms of value prevalent in the countries of Western Europe and America? … Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole”.14

Gregg argues that this statement rests on two assumptions and one entailment.15_{The first}

assumption is that the claim to rights is automatically based on a cultural claim. The second assumption is that the validation of a culture, and thus of a right based on that culture, is necessarily local, as no culture is universally accepted. The result of this is that the rights created, which are held to be based on a certain culture, will inevitably clash

10_{E. Brems, ‘Reconciling Universality and Diversity in International Human Rights Law’, in A. Sajó (ed.),}

Human Rights with Modesty: The Problem of Universalism, p. 213.

11_{Evans (2017), p. 4.}

12_{See Steiner, Alston (1996), pp. 367-8.} 13_{Steiner, Alston (1996), pp. 367-8.}

14_{American Anthropological Association (1947), p. 539, p.542.} 15_{Gregg (2010), p. 290.}

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with other cultures. “If all rights are cultural constructs, then no right is culture-free”.16 To summarize Gregg’s clarification, and consequently the main difference between universalism and cultural relativism, universal human rights cannot and do not exist, as rights are inevitably based on the culture of those proclaiming the rights. No culture is universally accepted and thus no right is universally accepted.

While cultural relativists are highly critical of universalism, cultural relativism has attracted its own critics. Acknowledging that different values exist within different cultures and following with the assertion that therefore all moral norms must be accepted, ignores the possibility that certain human rights cannot reasonably be accepted. Cultural relativism can be abused by those in power to allow that the “intolerable be tolerated”, and provides justification for inhumane practices.17 It can result in the legitimization of violations of individuals that are culturally accepted, which would, consequently, leave individuals unprotected against rulers, governments, or others in power.18 Additionally, cultural relativists tend to overlook the fact that most societies do not consist of one single culture. A multitude of cultures are established within each society, often ones that conflict with one another.19 The customs20 of a State generally reflect the interests of the dominant culture.21

Fifty years after the AAA made its initial statement on the UDHR, it changed its position on the Declaration. In its 1999 Declaration on Anthropology and Human Rights, the AAA stated that every person has certain universal human rights, simply because they are human and regardless of their culture or background.22_{This revised statement highlights}

the possibility of reconciling the theories of universalism and cultural relativism.

16_{Gregg (2010), p. 290.}

17_{M.B. Dembour, ‘Critiques’, in D. Moeckli (ed.), International Human Rights Law, p. 51; Zechenter}

(1997), p. 330; examples are the practice of female genital mutilation, see Sala and Manara (2001), pp. 247-248, Sati or widow burning, see Zechenter (1997), p. 328, and the Triple Talaq practice, see Punwani (2018), p. 12

18_{Zechenter (1997), p. 328.} 19_{Zechenter (1997), p. 336.}

20_{For example, religious beliefs, economies, social structures, Donnelly (2013), p. 112.} 21_{Zechenter (1997), p. 336.}

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When positioning universalism and cultural relativism against each other, the focus often lies on the extreme positions. The extreme version of universalism would hold that culture is irrelevant to human rights, as human rights are universally valid. Extreme cultural relativism goes as far as to assert that culture is the only valid source of rights, morals, and norms.23 If the extreme versions of these two theories are held as the norm, universalism and cultural relativism cannot be reconciled.

However, in practice, universalism is not as extreme. Human rights are subjected to moral differences, namely in interpretation and implementation.24 Culture shapes the individual interpreting and implementing international human rights.25 Universalism does not aim to ignore or eliminate the different ways in which people live, but it, instead, aims to allow different cultures to exist simultaneously.26 It does not mean that all moral beliefs must be the same, or that every person must have a similar culture, but, instead, it strives to exclude certain cultural practices, which are irreconcilable with other cultures and customs.27 To ensure that human rights are advocated effectively, knowledge and sensitivity is required, to assure that human rights fit into local cultures.28

Cultural relativism, in its extreme, denies the possibility of people having human rights, solely based on the fact that they are human.29 Again in practice, this extremism is not apparent, as there seems to be the possibility of differing cultures accepting certain rights as universal. This is exemplified by the concept jus cogens norms.30 Jus cogens norms have been accepted and recognized by all States and are applicable to all States.31_The

universality of rights is further highlighted by customary international law.32_{States, with}

differing cultures, believe that certain norms are legally binding and act accordingly, in a 23_{Donnelly (1984), p. 400.} 24_{Donnelly (2013), p. 113.} 25_{Donnelly (1984), p. 403.} 26_{Jary (2000), p. 212.} 27_{Tilley (2000), p. 540.} 28_{Donnelly (2013), p. 112.} 29_{Donnelly (1984), p. 404.} 30_{Donnelly (1984), p. 405.}

31_{Art 53 Vienna Convention on the Law of Treaties; Donnelly (1984), p. 405.} 32_{Donnelly (1984), p. 405.}

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consistent and uniform manner.33 The varying moral norms do not limit the possibility of universally accepted norms. It can thus be concluded that universalism and cultural relativism are not necessarily in direct opposition with one another.

2.2 Particularism

Particularism is, as opposed to cultural relativism, not a critique on universalism. As previously stated, it does not exist independently from universalism.34 Particularism accepts the validity of universal human rights,35_{but it also recognizes that, while we}

strive for the universality of human rights, we cannot (easily) escape the norms, which our culture has instilled in us.36

One way in which human rights are particular is reflected in their implementation into local legislation. If one assumes that human rights are indeed universal, then they will nonetheless be subjected to the contextual differences of the State where those rights are implemented.37 Particular cultural practices or beliefs will inevitably surface during legislation, as legislation is the primary way for States to present their identity.38_{It is in}

this way that particularism differs from cultural relativism. Particularism asserts that human rights can be universal in creation, but that the implementation of human rights will be subjected to cultural differences. Cultural relativism, on the other hand, asserts that human rights cannot be universal, even in creation, due to the belief that the norms, on which these rights are based, are relative to the culture from which they originate. 39 Universalism and particularism are inevitably linked in the legislative implementation of human rights. International human rights become universal because States, with differing

33_{North Sea Continental Shelf Cases (FRG v Denmark) (FRG v The Netherlands), para 77, where the}

Court decided that for a norm to be one of customary international law, it is dependent on two elements, namely opinio juris and state practice.

34_{M.B. Dembour, ‘Critiques’, in D. Moeckli (ed.), International Human Rights Law, p. 53.}

36_{M.B. Dembour, ‘Critiques’, in D. Moeckli (ed.), International Human Rights Law, p. 52.} 37_{Davies (2008), p. 444; Tilley (2000), p. 540.}

38_{Davies (2008), p. 444.}

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cultures, accept these norms, and thus their universal application.40 Certain human rights may have started out as particularities, relevant to some States, but not to others.41

However, these particularities become universal, because States have accepted them to be binding in international law.42 The choice was made by States to allow these

particularities to become universally valid.43 2.3 Interim Conclusion

This chapter has looked at multiple legal theories, which assert the status of international human rights. The first theory discussed, universalism, was compared to two other theories, namely cultural relativism and particularism. Universalism is the idea that every human being has certain inalienable rights, simply due to the fact that they are human.44 Cultural relativism, a critique on universalism, asserts that human rights cannot be universal, as the moral values on which they are based are relative to the culture from which they originate.45

Particularism, on the other hand, is not a critique of universalism. It recognizes the validity of universal human rights, yet it also recognizes that local particular cultures influence the implementation of human rights.

The question posed in this chapter was what the distinction between universalism and particularism entails. From what has previously been discussed, the following can be concluded. Universalism and particularism are in a continuous balance with each other. International human rights are subject to the particularities of States in their

implementation. Additionally, States allow international human rights to become

40_{Donnelly (2008), p. 195.}

41_{Gregg (2010), p. 292.} 42_{Donnelly (2008), p. 195.}

44_{Donders (2010), p. 16.}

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universal by way of their implementation. Thus, the relation between universalism and particularism is not so much a distinction, but rather one that is interrelated.

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Chapter 3 Comparative Analysis of the CRC and the ARCWC

In November 1989, the United Nations adopted the Convention on the Rights of the Child, providing 42 articles that instruct State Parties to implement rights for the development of the child.46 Less than a year later, in July 1990, the Organization of African Unity, adopted the first and, currently, only regional treaty on children’s rights, namely the African Charter on the Rights and Welfare of the Child, which provides 31 articles that contain rights focusing on the welfare of the child.47 As this thesis tries to determine to what extent the development of children’s rights in the African continent can be seen as a reflection of particularism of human rights, it must first be determined to what extent the CRC and the ARCWC differ and, if they do, how they differ. The

differences between the two treaties might shed light on the particularisms incorporated in the regional document. The ARCWC was influenced by the CRC, however, the two treaties differ in many ways.48 The following chapter aims to highlight the differences between the two children’s rights focused treaties. First, the major differences between the two treaties shall be discussed. This section focuses on those articles, which were incorporated in one of the treaties, but left out of the other, thus possibly exemplifying what the African leaders considered essential for children in their continent. After this, the minor differences will be discussed. This section concentrates on articles contained in both treaties that consider similar subject matters, but are different in certain details added or excluded. This chapter will concentrate solely on the content of the two respective treaties. Chapter four will aim to determine why these differences were incorporated.

46_{These rights do not include the latter 11 rights of the CRC, which contain details on the establishment of}

the Committee on the Rights of the Child.

47_{As is the case with the CRC, these rights do not contain the latter 16 rights of the ARCWC, which}

contain details on the establishment of the Committee on the Rights and Welfare of the Child.

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3.1 Major Differences

Both CRC and the ARCWC contain provisions which the other treaty does not. These major differences will be discussed in seven categories, to highlight where the

particularities of the different treaties lie.49 3.1.1 Age and consequences

The age determining when a child attains majority is an essential element of both treaties, as it affects the applicability of the treaty. The CRC asserts, in article 1, that a child is every human under the age of eighteen years old. However, it also stipulates that majority can be attained earlier, if the domestic law, applicable to the child, so determines.50 A State Party to the CRC can thus stipulate that a human can reach majority before the age of eighteen, meaning that the treaty no longer applies to that person after the stipulated age has been attained. This final section of the provision indicates the difference between the CRC and the ARCWC, as the latter treaty does not allow for any exceptions.

According to the ARCWC, a child is every human under the age of eighteen years.51

The articles concerning children in armed conflict highlight another difference in the treaties where age is of importance. Article 38(2) of the CRC stipulates that State Parties must ensure that persons under the age of fifteen years do not participate in armed conflict. Paragraph 3 of the same article stipulates that State Parties may not recruit any person under the age of fifteen. Furthermore, if a State does recruit persons older than fifteen but not yet eighteen, it must aim to recruit those who are the oldest.52 The ARCWC does not allow this leniency. Article 22, paragraph 2 stipulates that the State

49_{In the first category on age, two provisions will be discussed, which are included in both treaties.}

However, considering that the age of the child is essential to the applicability of the treaty, these provisions will be discussed in the major differences section.

50_{Art 1 CRC.} 51_{Art 2 ARCWC.}

52_{Art 38(3) CRC.}_{It must be noted that in 2000, the Optional Protocol to the CRC on the involvement of}

children in armed conflict was adopted. In art 1 of the Protocol, State Parties are called upon to ensure that all members of their armed forces who have not reached the age of eighteen shall not directly partake in hostilities. Furthermore, art 4 stipulates that armed groups, distinct from the armed forces of the State, shall not recruit or use those under the age of eighteen to take part in hostilities. However, while the Optional Protocol, in art 3(1), instructs State Parties to raise the minimum age for the voluntary recruitment of persons into their armed forces set in article 38(3) CRC, it does not provide such a minimum age. It instead asserts that all people under the age of eighteen are entitled to special protection.

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Parties must ensure that no child takes direct part in hostilities, and they must refrain from recruiting any child. If this article is read in conjunction with article 2, this means that no person under the age of eighteen years may take part in armed conflict.

Finally, the last issue in which age minimum is a point of concern is that of child marriage. Article 21 of the ARCWC stipulates that State Parties must take measures to eliminate harmful social and cultural practices, which affect the wellbeing of the child. Paragraph 2 of the article asserts that child marriage and the betrothal of both girls and boys is prohibited. The minimum age of marriage must be set to eighteen years.53 The CRC contains no article concerning the issue of child marriage.54

3.1.2 The Duties Of The Child

Throughout the entirety of the CRC, the treaty mainly addresses State Parties. The only duties provided are directed at the State or at the parents of the child.55 This is an essential difference to the ARCWC, as the latter treaty addresses not just these parties, but also the children themselves.

The ARCWC’s focus on individual responsibility is exemplified in article 31, which entails the responsibility of the child. The article stipulates that every child has responsibilities, not just towards their family and society, but also towards the State, legally recognized communities, and the international community.56 The remainder of the article lists responsibilities that the child, to the best of their age and abilities, must fulfill, including, but not limited to, respecting their family, elders and superiors57, the

preserving and strengthening of African cultural values in relation to other members of society58, and the contribution to the promotion and achievement of African Unity.59

53_{Art 20(2) ARCWC.}

54_{It should be noted that the Committee on the Rights of the Child (“CRC Committee”) has since}

determined that marriage under the age of 18 is not allowed. However, it also asserted that a child below the age of 18 and older than 16 may be married, on legitimate exceptional grounds defined by law and based on the evidence of maturity of the child, GC no. 18, para. 20.

55_{“Parents” also includes legal guardians and others tasked with the primary responsibility for the}

upbringing of the child.

56_{Art 31 ARCWC.} 57_{Art 31(a) ARCWC.} 58_{Art 31(d) ARCWC.}

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There is no similar article in the CRC, as it considers children to only be beneficiaries, and not duty-holders.

3.1.3 Imprisoned Mothers

Both the CRC and the ARCWC contain articles on the status of imprisoned children.60 However, the ARCWC also contains article 30, which considers the status of children of imprisoned mothers. The article is directed at expectant mothers or mothers of infants and young children, who have been accused or found guilty of infringing penal law, and provides these mothers with certain rights, such as receiving alternative confinement measures61_{, ensuring that the mother shall not be imprisoned with her child}62_{, or the}

insurance that the death sentence will not be imposed.63 The CRC does not contain a similar subject.

3.1.4 Discrimination

Both the CRC and the ARCWC take a firm stance against discrimination. A child may not be discriminated against on the basis of his or her own or parents’ race, color, sex, religion or other status.64_{However, both treaties contain articles elaborating upon the}

prohibition of discrimination that the other does not.

First, the ARCWC contains article 26, which calls upon State Parties to protect children living under Apartheid and in States subject to military destabilization as a result of the Apartheid regime.65 It furthermore calls upon States to eliminate all forms of

discrimination and Apartheid on the African Continent.66

59_{Art 31(f) ARCWC}

60_{Art 40 CRC; art 17 ACRWC.} 61_{Art 30(1)(b) ARCWC.} 62_{Art 30(1)(d) ARCWC.} 63_{Art 30(1)(f) ARCWC.}

64_{Art 2(1) CRC; Art 3 ARCWC.}

65_{Art 26(1) ARCWC. Apartheid entails the system or practice that separates people according to color,}

ethnicity or other forms of discrimination, source available at www.dictionary.com/browse/apartheid [accessed on 4 May 2019]. The most prevalent example of an Apartheid regime is that of South Africa, where Apartheid lasted from 1948 until 1994, source available at www.britannica.com/topic/apartheid [accessed on 18 May 2019].

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The CRC, while not containing a specific article on discrimination under Apartheid, does have an article on ethnic, religious, linguistic minorities or persons of indigenous origin.67

The article stipulates that any child belonging to such a minority or of indigenous origin shall be able to enjoy his or her own culture, practice his or her own religion, and use his or her own language.68 The ARCWC does not contain an article specifically on minority or indigenous groups.

3.1.5 Children Abroad

While the previous categories predominately discussed articles that were included in the ARCWC, and not in the CRC, the following categories discuss articles which were included in the CRC, yet not in the ARCWC.

While both treaties contain provisions concerning a child’s status as a refugee69, only the CRC discusses situations of a child being in a different State than their parents70_{and the}

possibility of illicit transfer and non-return of children abroad.71

Regarding a child situated in a different State than their parents, article 10 CRC discusses two situations. The first, paragraph 1 contains an obligation on State Parties to ensure that a child, or his or her parents, is able to enter or leave the State for the purpose of family reunification. Paragraph 2 of the same article asserts that children, whose parents reside in different States, have the opportunity to maintain contact with both parents, and

stipulates that States must respect the right of the child and his or her parents to leave and enter the country, to ensure that a child shall not be separated from his or her parents, in accordance with article 9 paragraph 1 CRC.

Another difference includes article 11 of the CRC, which imposes the duty upon State Parties to combat the illicit transfer and non-return of children abroad.72 To achieve this, the article, furthermore, requires State Parties to conclude international agreements.73

67_{Art 30 CRC.} 68_{Art 30 CRC.}

69_{Art 22 CRC; Art 23 ARCWC.} 70_{Art 10 CRC.}

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3.1.6 Access to Media

Article 17 CRC imposes the duty upon State Parties to ensure that each child has access to mass media, and information and material from diverse national and international sources. While the ARCWC does contain articles that would benefit from access to mass media and diverse information, such as freedom of expression74, freedom of thought75, and the right to education76, it does not contain a specific article on the right to access mass media.

3.1.7 Social Security

The CRC determines that State Parties must recognize a child’s right to benefit from social security and must take all necessary measures to achieve full realization of this right.77 The ARCWC does not provide a child with the right to benefit from social security.

3.2 Minor Differences

The previous paragraphs highlighted the provisions incorporated in one treaty, but excluded from the other. The following paragraphs will focus on provisions in each treaty, which are similar in topic, but are different in terms of formulation. From the outset, it must be noted that the CRC, throughout the entirety of the treaty, calls for the international cooperation between State Parties.78 The ARCWC does not extensively instruct State Parties to engage in international cooperation.79_{Instead, the treaty calls}

upon State Parties to ensure the participation of local communities and non-governmental organizations.80 In addition to this difference in cooperation efforts, other differences also 72_{Art 11(1) CRC.} 73_{Art 11(2) CRC.} 74_{Art 7 ARCWC.} 75_{Art 9 ARCWC.} 76_{Art 11 ARCWC.} 77_{Art 26 CRC.}

78_{Examples include art 22, on the status of refugee children, art 24(4), on health care, art 28(3), on access}

to education, of the CRC.

79_{Art 23(2) ARCWC on refugee children is an example where the Charter does call for international}

cooperation.

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exist in similar articles. Similar to the previous section, the differences will be classified in four different categories.

3.2.1 Children In Vulnerable Situations

The first articles in this category are those concerning refugee children. Article 22 CRC and article 23 ARCWC discuss the status of refugee children. Both articles instruct State Parties to take appropriate measures to ensure the wellbeing of a child seeking refugee status. The articles overlap to a large extent. However, in article 23 ARCWC an additional provision was added, stating that the content of the article also applies to children who are internally displaced due to natural disaster, internal armed conflicts, civil strife, breakdown of economic and social order, or any other reasons.81

The issue of displacement caused by natural disaster and armed conflict is continued in article 25 ARCWC. This article contains provisions concerning the child’s separation from his or her parents. It instructs State Parties to take those measures necessary to re-unite children from their parents if the separation was caused by internal or external displacement arising from armed conflicts or natural disasters.82 The equivalent article in the CRC, article 20, does not contain a similar provision on the separation of a child and his or her parents due to armed conflict or natural disasters.

Finally, both article 35 CRC and article 29 ARCWC urge State Parties to take the necessary measures to prevent the abduction of, sale of, or trafficking in children. The ARCWC, however, also included a provision, instructing State Parties to prevent the use of children in all forms of begging.83 No article concerning the prevention of children begging can be found in the CRC.84

81_{Art 23(3) ARCWC.}

82_{Art 25(2)(b) ARCWC.} 83_{Art 29(b) ARCWC.}

84_{It should be noted that the CRC Committee has since determined that State Parties should eliminate the}

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3.2.2 Economic, Social and Cultural Rights

The following category of rights contains provisions that are considered economic, social and cultural rights.85

Both treaties discuss the right to a child’s education extensively. However, article 11 of the ARCWC does not include a provision on international cooperation. This is included in article 28 of the CRC, which instructs State Parties to promote international

cooperation, to eliminate ignorance and illiteracy throughout the world and to facilitate access to scientific and technical knowledge and teaching methods, especially taking into account the needs of developing countries.86_{Article 11 ARCWC, on the other hand,}

includes more extensive provisions on the content of education and on special measures for certain students. The article encourages State Parties to direct the child’s education to the preservation and strengthening of African morals, traditional values and cultures87, and towards the promotion and achievement of African Unity and Solidarity.88

Additionally, the Charter instructs State Parties to take the appropriate measures to ensure that female, gifted and disadvantaged children receive equal access to education89, and that children who become pregnant before completing their education are able to continue their education.90

The second difference in regards to economic, social and cultural rights is that of child labor. Both the CRC and the ARCWC assert that children must be protected from economic exploitation and from performing work that is considered detrimental to their wellbeing.91 The first difference between the two articles is in regards to the minimum age for a child to work. The CRC instructs State Parties to provide a minimum age for the admission to employment, but leaves it to the State to determine what an appropriate age

85_{Each right discussed in this category is included in the International Covenant on Economic, Social and}

Cultural Rights (“ICESCR”), namely artt 13 and 14, the right to education; art 7, the right to work and labor regulations; and artt 11 and 12, an adequate standard of living.

86_{Art 28(3) CRC.} 87_{Art 11(2)(c) ARCWC.} 88_{Art 11(2)(f) ARCWC.} 89_{Art 11(3)(e) ARCWC.} 90_{Art 11(6) ARCWC.}

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is.92 The ARCWC instead does not specifically assert that a minimum age must be set. Instead, it refers to the instruments of the International Labour Organization (“ILO”) relating to children, and instructs State Parties to take measures to ensure that these instruments are taken into account when implementing the article.93 While there are various ILO instruments regarding children, the prevalent one in this comparison is the Convention Concerning Minimum Age for Admission to Employment (“Minimum Age Convention”). This convention, designed to ensure the effective abolition of child labor94, asserts that the minimum age shall not be lower than the age of completion of

compulsory schooling, and shall not be less than fifteen years.95 It can therefore be deduced that the ARCWC sets a minimum age of fifteen years for the admission to employment. Additionally, the ARCWC instructs State Parties to provide minimum wages to every employment96, and to promote the dissemination of information to all sectors of the community on the hazards of child labor.97 The provision on minimum age is not as detailed in the CRC as it is in the ARCWC and the provision on minimum wage was not included at all.98

The final difference in economic, social and cultural rights is that of an adequate standard of living. Article 27(1) CRC includes a provision on a child’s right to an adequate

standard of living for the development of his or her “physical, mental, spiritual, moral and social development”. The remainder of article 27 asserts that parents have the responsibility to secure living conditions necessary for the child’s development99, and instructs State Parties to assist parents when necessary.100_{While the ARCWC does}

contain provisions similar to the latter part of article 27, it does not contain a provision on an adequate standard of living.101

92_{Art 32(2)(a) CRC.}

93_{Art 15(2) ARCWC.}

94_{Art 1 Minimum Age Convention.} 95_{Art 2(3) Minimum Age Convention.} 96_{Art 15(2)(a) ARCWC.}

97_{Art 15(2)(d) ARCWC.}

98_{It should be noted that the CRC Committee has since determined that State Parties must comply with}

relevant ILO Conventions, including the Minimum Age Convention, GC No. 16, p. 8, section VI. A. 1.

99_{Art 27(2) CRC.} 100_{Art 27(3) CRC.} 101_{Art 20 ARCWC.}

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3.2.3 Freedom of views and expression

The following category discusses the right to freedom of views and expression. The CRC has dedicated two articles, which extensively discuss the freedom of views and

expression, namely articles 12 and 13. The articles include provisions on the child’s right to seek, receive and impart information, either orally, in writing, in the form of art, or any other media of the child’s choice.102 Article 13, furthermore, states that the exercise of this right may only be limited if provided by law and is necessary for the respect of the rights and reputations of others, or for the protection of national security, or public health and morals.103_{The article on the same right in the ARCWC is less extensive. Article 7}

ARCWC, similar to the CRC, allows every child to express his or her opinions freely and in all matters. It, however, does not specify how a child is able to do so. Moreover, according to article 7 ARCWC, the restrictions to the right to freedom of expression must be prescribed by laws. It, however, does not mention the elements, which are considered necessary in the CRC, namely the reputation of other or the protection of national security, allowing the State Parties to the Charter to determine when a restriction is deemed appropriate.104

3.2.4 The Responsibility of Parents105

Both the CRC and the ARCWC contain articles which stipulate that parents have the primary responsibility for the upbringing and development of the child.106 Furthermore, both treaties stipulate that the upbringing must be done in the best interest of the child107, and that parents must secure conditions of living necessary to the child’s development.108 However, the ARCWC includes a provision, which considers that if domestic discipline

102_{Art 13(1) CRC.}

103_{Art 13(2)(a)&(b) CRC.} 104_{Art 7 ARCWC.}

105_{“Parents” also includes legal guardians and others tasked with the primary responsibility for the}

upbringing of the child.

106_{Art 18(1) CRC; 20(1) ARCWC.} 107_{Art 18(1) CRC; art 20(1)(a) ARCWC.} 108_{Art 27(2) CRC; art 20(1)(b) ARCWC.}

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is administered, it must be done with humanity.109 The CRC does not contain a provision on domestic discipline.

3.3 Interim Conclusion

The previous paragraphs discussed the differences in content between the CRC and the ARCWC. Of the 31 articles contained in the ARCWC, four are not included in the CRC. Of the 42 articles contained in the CRC, five are not included in the ACRWC. However, differences can also be found in articles which focus on the same subject matter. In total, 21 articles in the treaties contain such differences.

The major differences discussed were divided into seven categories. The first examined rights regarding the child’s age. The ARCWC considers a child to be every human under the age of eighteen, while the CRC allows for exceptions. This was the first difference regarding the child’s age. The second was that the ARCWC does not allow any child to participate in armed conflict, while the CRC allows for children aged fifteen and up to participate. The final difference regarding age concerned the fact the ARCWC included an article on the prohibition of child marriage, which the CRC did not. The second major difference was based on the fact that the ARCWC considers not only the State Parties and parents as having duties, but also the children themselves. The third category discussed the inclusion of the rights of children of imprisoned mothers in the ARCWC. The fourth difference focused on discrimination, namely the elimination of Apartheid, included in the ARCWC, and the rights of minorities and indigenous peoples, included in the CRC. The fifth category examined two rights concerning children abroad, which were included in the CRC and not in the ARCWC, namely, first, children being in a different state than their parents and, second, the possibility of illicit transfer and non-return of children abroad. The next difference looked at CRC’s inclusion of the right to access to media, which was not included in the ARCWC. The final difference focused on the lack of the child’s right to benefit from social security in the ARCWC.

109_{Art 20(1)(c) ARCWC.}

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The minor differences discussed were divided into four categories. The first focused on children in vulnerable situations, and discussed the ARCWC’s focus on internally and externally displaced children as a result of natural disasters or armed conflict. The second category discussed the differences between the two treaties concerning economic, social and cultural rights, including the right to education, the right to work and labor

regulations, and the right to an adequate standard of living. The difference concerning the right to education was that the ARCWC encourages State Parties to focus a child’s education on the strengthening of African morals, traditional values and cultures and that it contains special measures for female, gifted and disadvantaged students. The treaties differed in terms of work and labor regulations, as the ARCWC included more

comprehensive provisions on the minimum age for a child to work and minimum wages. Finally, the CRC included a child’s right to an adequate standard of living, which the ARCWC did not. The third minor difference examined the right to the freedom of expression, which is more extensive in the CRC. The final category considered the difference in the responsibility of parents, as the ARCWC allows for domestic discipline and the CRC contains no such provision.

The differences contained in this chapter highlight what the Organization of African Unity considered important for children living within the African continent, which the other States that participated in the creation of the CRC might not have considered as important for children in their own nation. The examination and comparison of the

differences in rights in this chapter will allow the following chapter to determine what the significance behind these differences is.

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Chapter 4 African States and the creation of the CRC and the

ARCWC

The previous chapter contained a discussion on the content of both the CRC and the ARCWC, highlighting the differences between the two treaties. The discussion central in the current chapter is how these differences were established. What was the stance of the Organization of African Unity during the creation of the CRC and what was the reason behind the creation of the regional treaty? To answer these questions, first, the CRC will be discussed, namely why did the Convention come into existence, what were the African States’ stance during the discussions on the content of the treaty, how did the African States vote, and did they make any reservations to the treaty? After this, the ARCWC will be discussed. This discussion covers the decision to create the Charter, the possible reasons as to why certain provisions differ in the two treaties110, and the African States’ reservations to the Charter. The chapter will conclude with a comparative analysis of the creation of the two treaties and will provide a possible explanation as to why the treaties differ in content.

4.1 CRC

4.1.1 CRC – The Decision To Create

The rights of the child were not an unfamiliar concept in international law prior to the start of the negotiations of the Draft Convention of the Rights of the Child in 1979. The first significant international instrument on children’s rights was the 1924 Geneva Declaration on the Rights of the Child, endorsed by the League of Nations. The UN affirmed its believe of the importance of children’s rights, and consequently the 1924 Declaration, in 1959, when it adopted its own Declaration on the Rights of the Child.

110_{Unfortunately, the travaux préparatoires or similar documents of the ARCWC have not been published}

by the African Union, as was done for the CRC. For this reason, it is not possible to determine which African State participated in the creation of the ARCWC and what their stances were. Thus, some speculation is needed to try to determine why certain differences between the two treaties exist.

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The discussions on what is currently the United Nations Convention on the Rights of the Child started as the result of the 1978 draft of the Convention, initiated by the Polish delegation to the UN.111_{The UN General Assembly had previously declared 1979 to be}

the Year of the Child.112 The hope was that a treaty would be adopted that same year. This turned out not to be the case, as the General Assembly did not adopt the CRC until 1989.113 The reasons for the ten-year gap are numerous.114 Not all States deemed it necessary to adopt a child-specific treaty, as they maintained that the rights applicable to a child are applicable to all humans. Thus, children’s rights were considered to be sufficiently covered by previously adopted human rights instruments.115 Proponents of a child specific treaty argued that children needed special protection due to their special needs. While children were implicitly covered by existing human rights instruments, these instruments lacked clarity, and were perhaps even contradictory, on the subject of children’s rights.116

The drafting of the Convention was conducted by an open-ended working group,

established by the UN Commission on Human Rights. The drafting process was done by members of the Commission. In addition to the Commission members, Member States that were not members of the Commission, non-Member States with ‘observer’ status at the UN, and international governmental and non-governmental organizations participated in the discussions concerning the drafting of the CRC.117 The meetings of the working groups were chaired by the primary mover behind the idea of the Convention, the Polish delegate, Professor Adam Lopatka.

4.1.2 CRC – The Participation of African States

The following section will examine the African States’ participation in the creation of the CRC. The travaux préparatoires show that Western States dominated the drafting

111_{E/CN.4/L/1366.}

112_{A/RES/31/169.} 113_{A/44/736/Corr. 1.}

114_{For a more extensive overview, see LeBlanc (1991).} 115_{Bennett Jr. (1987), p. 29.}

116_{LeBlanc (1991), p. 285.}

117_{In practice, there was little difference between the participation of members of the Commission and the}

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process.118 Only four African States meaningfully participated in the process in the course of ten years.119_{The lack of participation by African States is furthermore reflected}

in the discussions on the content of the articles. Considering that the discussion of every instance in which an African State contributed during the ten-year drafting period is too extensive for the content of this thesis, the focus will lie on certain articles containing differences, discussed in the previous chapter.

4.1.2.1 Age120

As examined in the previous chapter, article 1 of the Convention asserts that a person is considered a child until the age of eighteen, unless determined otherwise by national law. As this article is essential for the application of the CRC, this article was the first

discussed by the working group.121 The discussion on the age of the child was based on a number of different aspects. First, a group of delegates believed that the age of eighteen was quite late in regards with lower age limits contained in the national legislation of certain States.122 These delegates pointed out that the General Assembly had previously set the age of the child at fifteen years, and therefore the same should be adopted for the Convention.123 Other delegates opposed the lowering of the age below eighteen, as their domestic legislation contained protective measures for children beyond that age. They, furthermore, held that the Convention should apply to the largest age group possible.124 It

118_{This is including the Member States that were not members of the Commission. In 1981, two out of the}

twenty-seven participating States were African, E/CN.4/L.1575; in 1982, one out of twenty-seven, E/1982/12/Add.1; in 1983, three out of thirty-five, E/CN.4/1983/62; in 1984, one out of thirty-three, E/CN.4/1984/71, in 1985, seven out of forty-seven, E/CN.4/1985/64; in 1986, four out of thirty-seven, E/CN.4/1986/39; in 1987, three out of forty, E/CN.4/1987/25; in 1988, seven out of forty-eight, E/CN.4/1988/28; in 1989, eight out of sixty-five, E/CN.4/1989/48. The reports of 1979 and 1980 do not contain a list of participants.

119_{Algeria participated six times (1983; 1985; 1986; 1987; 1988; 1989), Egypt participated four times}

(1981; 1985; 1988; 1989), Morocco participated seven times (1983; 1984; 1985; 1986; 1987; 1988; 1989), and Senegal participated seven times (1982; 1983; 1985; 1986; 1987; 1988; 1989).

120_{Unfortunately, the summary of this report does not contain a list of participating States, nor does it}

clarify which States made which comment regarding the age limit of the child. Nonetheless, considering that this article is essential for the application of the Convention, it is included in this chapter.

121_{After the content of the pre-amble, E/CN.4/L/1542, paras 28-36.} 122_{E/CN.4/L/1542, para 32.}

123_{E/CN.4/L/1542, para 32.} 124_{E/CN.4/L/1542, para 33.}

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was decided that the wording of the draft article be retained, allowing the age limit to be qualified by the national legislation.125

4.1.2.2 Armed Conflict

The original draft of article 38(2) CRC stated that States must refrain “from recruiting children in armed forces and shall take all feasible measures to ensure that children do not take part in hostilities”.126 The United Kingdom suggested adding the words “under the age of fifteen”.127 This was supported by other representatives128, as the Additional Protocols of 1977 to the Geneva Conventions of 1949 (“1977 Geneva Convention APs”) had set the minimum age of recruiting children into armed forces at age fifteen.129

However, the representative of Algeria disagreed, wishing the minimum age to be set at eighteen, which was then opposed by the United Kingdom and the Netherlands.130 The discussion on the article was tabled to later be reopened in 1989. The previously established drafting group concerning children in armed conflict131 had not reached a consensus on the content of the provision and therefore suggested two versions:

1. “States Parties shall take all feasible measures to ensure that no child takes a

direct part in hostilities. With respect to persons who have attained majority before the age of 18 years, States Parties shall endeavour to prevent them from taking a direct part in hostilities. Persons who have not attained the age of 15 years shall not be allowed to take part in hostilities”.

2. “States Parties shall take all feasible measures to ensure that persons who have

not attained the age of 15 years do not take a direct part in hostilities”.132

125_{E/CN.4/L/1542, para 33, 36.} 126_{E/CN.4/1986/39, para 124.} 127_{E/CN.4/1986/39, para 130.}

128_{Bangladesh, Canada, Norway and the International Committee of the Red Cross, E/CN.4/1986/39, para}

131.

131_{Consisting of 11 State representatives, included Angola and Mozambique, E/CN.4/1989/48, para 607.} 132_{E/CN.4/1989/48, para 601.}

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The United States asserted that existing international humanitarian law already offered protection for children in armed conflict. Therefore, language similar to the 1977 Geneva Convention APs must be adopted and the age of fifteen must be retained.133_{25 States,}

including Angola, Algeria and Mozambique, preferred the first version of the provision, emphasizing the prevention of persons under eighteen of participating in armed

conflict.134 The United States maintained its unwillingness to support this version and the Chairman of the Working Group determined that no State had opposed the second

version of the provision.135 Thus, the mention of eighteen years was omitted and the provision as is now known was adopted.

4.1.2.3 Apartheid

The CRC does not contain a provision on apartheid, as was determined in the previous chapter. In 1979, the year that the discussions on the Draft Convention started, several representatives stated that consideration should be given to a number of matters,

including children living in territories under foreign occupation or an apartheid regime.136

The issue of apartheid was not discussed further throughout the ten-year drafting process. The issue of foreign occupation was discussed once in 1987. Algeria proposed the

following article:

“Children should be educated in a social climate imbued with the national values and the

cultural identity of the children, with respect for civilizations different from their own and for the rights of peoples. In no case may children of countries still under colonial

domination and foreign occupation or racist régimes be deprived of their cultural and national identity”.137

The Netherlands, the United Kingdom, and Canada requested clarification in regards to the phrase “cultural identity”.138 The representative of France asserted that the reference 133_{E/CN.4/1989/48, para 603.} 134_{E/CN.4/1989/48, para 607.} 135_{E/CN.4/1989/48, paras 608, 610.} 136_{E/CN.4/L.1468, para 6.} 137_{E/CN.4/1987/25, para 40.} 138_{E/CN.4/1987/25, para 41, 42.}

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to a social climate posed certain problems, and suggested that the provision should instead read “children should be educated with respect for their cultural identity, national values and civilizations different from their own”.139_{The Chairman asked Algeria to}

revise the provision, taking the proposal of France into account, which also resulted in the mention of racist regimes being dropped. The article then read:

“Children should be educated with respect for their cultural identity, for their national

values, for civilizations different from their own and for the right of peoples. In no case may they be deprived thereof by colonial domination or foreign occupation.”140

The representative of the United States found the relation between the provision and the CRC in its entirety to be unclear and stated that it could not join in consensus on the second sentence, as the rights in the Convention were for “children living in States with various political systems, and not only in those under ‘colonial domination or foreign occupation’”.141 Additionally, the representative asserted that the State Parties, when ratifying the Convention, were agreeing that the children would not be deprived of the rights contained in the treaty, and thus the mention of foreign occupation would be superfluous. 142

The representative of Algeria agreed to accept the first sentence, if the sentence of children living under foreign occupation or colonial domination were also adopted. Nonetheless, the Working Group adopted the provision without mention of the second sentence and considered the matter resolved.143

4.1.2.4 Individual Duties

The representative of Senegal submitted a proposal to insert the following article:

139_{E/CN.4/1987/25, para 43.} 140_{E/CN.4/1987/25, para 44.} 141_{E/CN.4/1987/25, para 45, 51.} 142_{E/CN.4/1987/25, para 51.} 143_{E/CN.4/1987/25, para 53.}

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“The child has the duty to respect his parents and to give them assistance, in case of

need”.144

Some participants stated that the duty to respect one’s parents was a moral obligation and not a legal one. Furthermore, it was maintained that State Parties would not be able to report on their compliance with this duty prescribed to an individual.145 Thereafter, it was suggested that this provision would be more suitable in the framework of the right to education.146 Indeed, article 29(1)(c) of the adopted Convention states that the education of the child shall be directed to the development for the respect of the child’s parents. It does not impose individual duties upon the child, as was originally suggested.

4.1.3 CRC – Voting by African States

After the Convention was adopted in November 1989, it needed twenty signatures to enter into force.147 Within less than a year, in September 1990, this was achieved, making up for the lengthy drafting process.148 African States made up a large part of those first twenty, and in 1990 alone over twenty African States ratified the CRC.149 With Somalia ratifying the Convention in 2015, all 54 States in the African Union are Party to the CRC. However, ten African States also submitted reservations to the treaty.150

Most of the reservations made by African State Parties were in regards to religion and traditional values. Algeria, Egypt, Mauritania, Morocco and Somalia all submitted reservations stating that articles and provisions contrary to the beliefs of Islam will not

144_{E/CN.4/1989/48, para 704.} 145_{E/CN.4/1989/48, para 705.} 146_{E/CN.4/1989/48, para 709.} 147_{Art 49(2) CRC.}

148_{United Nations Treaty Collection, source available at:}

149_{Of the first 20 States, 9 were African and 24 African States ratified the Convention in 1990, United}

Nations Treaty Collection, source available at:

150_{Including reservations or declarations that have since been withdrawn, United Nations Treaty}

Collection, source available at: treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en [accessed 30 May 2019].

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apply in their respective countries.151 Djibouti made reservations to any article or provision that is incompatible with its religion or traditional values.152

Other reservations were based on the State’s national law. Botswana stated that it does not consider itself bound to article 1, in regards to the age of majority, in so far as it may conflict with national law. Mali made a reservation in regards to article 16 on the

interference with a child’s privacy, given the provisions within the Mali Family Code. Tunisia, while having since withdrawn its reservations, stated that article 2, on a child’s right not to be discriminated, may not impede implementing national legislation in relation to marriage and inheritance rights. The State, furthermore, asserted that article 7, on the registration of a child after birth, cannot prohibit the implementation of national legislation.

Finally, Mauritius made a reservation, which has since been withdrawn, to article 22 of the Convention, which concerns the status of a child seeking refugee status.

4.2 ARCWC

4.2.1 ARCWC – The Decision To Create

The Organization of African Unity, in concurrence with the UN declaring 1979 as the International Year of the Child, published the Declaration on the Rights and Welfare of the African Child (“African Child Declaration”). In the Declaration, the Organization called upon its Member States to, for example, review legal codes relating to child’s rights, paying attention to the unequal status of girls153_{; to examine cultural legacies,}

which may be harmful to the child, including child marriage and female circumcision154; to give priority to deprived and vulnerable children155; and to preserve and develop

151_{In particular article 20 on a child deprived of family environment, article 21 on adoption, and article 14}

on freedom of thought, conscience and religion. Egypt and Morocco have since withdrawn their reservations.

152_{Djibouti has since withdrawn its reservation.} 153_{Art 2 African Child Declaration.}

154_{Art 3 African Child Declaration.} 155_{Art 6(b) African Child Declaration.}

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African arts, language and culture.156 Similar to the 1959 UN Declaration, this Declaration is not binding.

The OAU adopted the African Charter on the Rights and Welfare of the Child on 11 July 1990, quickly after the CRC was adopted and right before the Convention entered into force. The ARCWC was both inspired by the CRC and is complementary to it.157 The two treaties provide a framework for the development and welfare of children in

Africa.158 However, there are essential differences, as discussed in the previous chapter. Why did the AOU decide to create this piece of legislation?

The decision to create the ARCWC was largely based on the lack of African States’ participation during the creation of the CRC.159 As previously stated, only four African States meaningfully participated in the draft process of the CRC and, as Johnson and Viljoen state, this “hardly justified a conclusion that the goal of the drafting process – ‘a consensus over the need for setting international standards to protect the interest and well-being of children globally’ – was not impeded by ‘cross-cultural barriers’”.160

African, Islamic and other non-Western States considered the CRC to represent “primarily Western experiences and values”.161 The representative of Senegal asserted during the drafting process that many concerns of developing countries were not taken into account, urging the Working Group to include these issues to ensure a “universal recognition” of the Convention.162_{An example of such an issue is the Senegalese}

representative’s attempt to include the duty of the child into the Convention. As discussed in the previous section, the Senegalese representative suggested adding a provision on the duty of the child. Instead, the respect for one’s parents was placed under the article on

156_{Art 10 African Child Declaration.} 157_{Art 46 ARCWC; Olowu (2002), p. 128.} 158_{Olowu (2002), p. 128.}

159_{See generally F Viljoen, ‘The African Charter on the Rights and Welfare of the Child’, in C.J. Davel}

(ed.), Child Law in South Africa, pp. 331–50.

160_{D. Johnson, ‘Cultural and Regional Pluralism in the Drafting of the UN Convention on the Rights of the}

Child’, in M. Freeman (eds.), The Ideologies of Children’s Rights; Viljoen (2012), p.133.

161_{LeBlanc (1990), p. 48; Harris-Short (2001), p. 314.} 162_{Detrick (1992), p. 624.}

Particularism and the African Charter on the Rights and Welfare of the Child: How the creation of the African Charter on the Rights and Welfare of the Child reflects particularism in human rights law.

University of Amsterdam

Faculty of Law