Child Human Rights Defenders

3.5.1 Freedom Of Expression

Article 6 of the Declaration provides an important explanation of the exercise of right to freedom of expression and information in the context of the work of HRDs. There has been limited recognition of the fact that the right to freedom of expression is a right enjoyed by children.¹ Read alongside Article 13 of the CRC, Articles 6 and 7 of the Declaration reinforce the fact that the child has a right to seek, receive and impart information about human rights and freedoms, and to develop and discuss new human rights ideas and advocate for their acceptance. This provision, among others, is of key importance for CHRDs: ‘freedom of expression is the primary channel for participation and serves as a mechanism for inclusion.’²   

Article 13 covers expression in an array of formats that might be particularly appropriate for children, including art and media of the child’s choosing. Article 13 extends to children’s right to seek, receive and impart information. The latter is sometimes lost when the right is explained to children. For CHRDs, the right to impart information is as important as the right to seek information.  For example, much of the activity of young environmental activists has been shaping understanding of environmental human rights more generally. Peer-to-peer education programmes can provide an important mechanism for this, building children’s capacity and opening opportunities particularly when the issue at stake is stigmatized (for example reproductive and health rights). Journalists reporting on human rights issues have been recognized as HRDs and child journalists should enjoy the same recognition and protection. 

The inclusion of the phrase ‘regardless of frontiers’ in Article 13(1) is especially significant given the capacity for global communications via social media and the Internet.³ It is also highly relevant to the work of CHRDs many of whom are working on transnational and global issues, including for example climate change. The  Special Rapporteur on freedom of  expression has observed that ‘Children face particular hurdles to the realization of their right to freedom of expression as a result of entrenched paternalistic attitudes that often overstate the risks of allowing children to communicate freely and underestimate their agency. In addition, the rights of children are also affected by all the barriers hampering the freedom of expression of adults.’ ⁴

CHRDs have reported a number of challenges related to the exercise of their rights under Article 13. First, they are often not being permitted to speak or publish their thoughts due to the fact that they are children and not considered competent to speak. And secondly, many do not have access to the information they need to access or the means to communicate information to others. Some CHRDs such as children with disabilities, children who are homeless and children in poverty experience additional barriers as they often do not enjoy equal access to information. While this can be due to resource issues affecting their communities generally, CHRDs often face additional hurdles due to having to get the permission or help of adults. A particular challenge arises when children express views with which adults (parents, teachers, religious leaders, state authorities) disagree. Finally, children are sometimes restricted from speaking out by adults who have concerns about their safety. The Special Rapporteur on freedom of  expression has suggested that ‘the possible risks that children face as a consequence of their young age and relative immaturity are overstated and used as an excuse for unduly restricting the rights of both adults and children to freedom of expression.’⁵ Moreover, many children will choose to act in spite of adult concerns and need to be protected from harm, including informing and empowering them to understand and address risks.

CHRDs have reported the following challenges when exercising their rights under Article 13.

Challenges in securing the right to freedom of expression were recognized in DGD2018. In addition to the challenges of accessing information, issues were raised in relation to the accuracy and trustworthiness of the information that children find or are given (the challenge of misinformation and ‘fake news’). DGD2018 recommended that CHRDs ‘receive specific, comprehensive and appropriate information so that they can express their opinion and take part in decision-making processes. States should ensure free and accessible information to all children by various means, including the Internet and build their capacity to analyse and think critically about the information they access.’ ⁶

Article 13(2) sets out the permissible restrictions to the right. The  Special Rapporteur on freedom of  expression has established a set of principles to be followed when decisions are made about restrictions within the context of the right.⁷ While all of these apply to children’s exercise of their civil and political rights, some of the principles may have particular significance when considered in relation to the work of CHRDs. For example, the fourth principle (d) states that ‘restrictions must be accessible, concrete, clear and unambiguous, such that they can be understood by everyone and be applied to anyone.’ ⁸

It is worth noting that Article 13(2) includes references to the rights and reputations ‘of others.’ It does not include a restriction about protecting the child’s own rights.

Children’s right to freedom of expression may, in practice, be limited on the basis that the exercise of the right may not be seen by adults to be in the child’s best interests under Article 3(1) of the CRC or because adults wish to prevent them from harm under Article 18 of the CRC. Moreover, limitations may also be imposed in the context of their schools and be justified with reference to the rights of other children in the school. Any such limitations should comply with the principles proposed by the Special Rapporteur on freedom of expression, for instance: they should not undermine or jeopardise the essence of the right; they should not be arbitrary or unreasonable; they should be proportionate and they should be kept under review.⁹

3.5.2 Freedom of Thought, Conscience and Religion

The child’s right to freedom of thought, conscience and religion has been largely overlooked (or devolved to parents).¹⁰ Moreover, the limited consideration of the Article to date has been dominated by a focus on freedom of religion. For CHRDs, like all HRDs, the right to freedom of thought and conscience is of major significance. Articles 6 and 7 of the Declaration therefore address a significant gap in the understanding of Article 14 generally and for CHRDs in particular. The Declaration makes it clear that implementation of Article 14 for CHRDs includes the following: a right to study, discuss, form and hold opinions on the observance of human rights, to draw attention to human rights issues; and to develop and discuss new human rights ideas and to advocate for them. Child environmental activists, for example, have been at the forefront of campaigns to promote understanding that the prevention of environmental harms is a human rights issue. 

The CRC, in turn, supplements understanding of the Declaration, by recognizing that this right, often denied to children, is their fundamental human right. It challenges assumptions that children cannot form or develop their own beliefs and ideals.¹¹ It should be interpreted and applied in the context of other relevant CRC rights. These include children’s right to seek, receive and impart information (Article 13) and right to advice and guidance from parents/ guardians – an element of Article 14, which echoes Article 5 of the CRC (discussed at 3.2.1). 

Article 14 includes a positive obligation to enable children to form, hold and express thoughts and a negative obligation not to interfere with the right (e.g. through indoctrination in school or elsewhere or punishing CHRDs holding and expressing certain beliefs). The States also has an important role to play in ensuring that non-States actors (parents, teachers, elders) do not limit the exercise of the right unjustifiably. The Human Rights Committee considers that its equivalent in the ICCPR (Article 18) permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way. ¹² This interpretation can be applied to extend an understanding of ethics to human rights principles and values. Restrictions on the exercise of the right to manifest one’s beliefs, as with other provisions, must comply with Article 14(3) of the CRC and must be necessary and proportionate. 

3.5.3. Freedom of Association and Peaceful Assembly

Children enjoy a right to freedom of association and peaceful assembly. This is exactly the same entitlement enjoyed by all HRDs; there are no additional restrictions or elaborations of the scope of this right for children within Article 15 itself. However, Article 15 needs to be understood and applied in the context of children’s other rights in the CRC including, for example, their right to be heard and to be protected from harm.

Children must enjoy the freedom and the right to assemble peacefully to oppose the decisions that affect their present and their future. In practice, children are often prevented by adults from joining or forming associations and taking part in peaceful assemblies such as protests.¹³ These limitations are rooted in societal concerns about activism not being appropriate for children and/or concerns about children’s safety. Some of these concerns have foundation: HRDs can be demonised and harassed for such activity and this can affect CHRDs in particular as they can be the subject of backlash both on account of their activity and their age. States should ensure that a child who takes part in public life and peacefully assembles or creates an association/club/Parliament is understood to be exercising a fundamental right. The right to participate in public affairs is not only for adults. One of the most important aspects of Article 15, therefore, is the fact that it appears in the CRC and that in itself confronts and reverses ‘the traditional perception that the rights to freedom of association and assembly for children were largely irrelevant.’ ¹⁴

Freedom of association is a crucial aspect of the work of all HRDs but might be considered to be particularly important for CHRDs. CHRDs frequently choose to work alongside other children or adults in order to gain the additional support (including capacity building, peer support, access to information) or protection that they may need in the course of their activities. Many CHRDs operate under the umbrella of established civil society organizations, youth groups, associations or parliaments. However, Article 15 recognizes their right to work with others to form their own associations and thus underscores the ability to form child-led movements. The Committee has advised that: ‘Legal recognition must be afforded to adolescents to establish their own associations, clubs, parliaments and forums, both in and out of school, form online networks, join political parties, and join or form their own trade unions.’ ¹⁵ 

States are under an obligation to ensure that both States and non-State actors do not interfere with the right to freedom of association. They are also under a positive obligation to ensure that children are able to enjoy this right. In practice, children are often prevented from forming or joining associations, with some of these restrictions forming part of national laws. In many countries, legislation and other regulations have introduced barriers to the registration of civil society organizations, such as the need for authorization to operate or to gain legal personality or drawn-out costly registration procedures and/or the criminalisation of the activities of non-registered associations.¹⁶ These challenges are heightened for CHRDs. The Committee has frequently expressed its concern to States that have: minimum age restrictions; prohibitions on children meeting in public spaces; prohibitions on children’s involvement in political activity; and a bar on children forming or being members of trade unions.¹⁷ States  have a positive obligation to foster a safe and enabling environment for CHRDs to come together and form associations, including by removing age-based discriminatory practices that restrict participation of CHRDs in public decision-making, as well as by providing resources for the work of CHRDs and child-led organizations. 

Minimum age restriction on forming association are, in practice, one of the most significant barriers for children to form associations, since practically all laws and regulations around the world ask for a legal personality and the age for legal personality usually coincides with the age for legal capacity/maturity which is often 18 (or 21 in some countries). An associated challenge is the issue of the legal liability of such associations. States could, for example, not make legal recognition a pre-condition for associations to operate. However, another major obstacle could be bank account and other financial implications for child-led associations. In practice, CHRDs will need the support of adults or a partnership with adults to function as a formal association.

The nature of the restrictions in Article 15(2) has received limited attention.¹⁸ It is difficult to see how restrictions on the right of CHRDs to form or join associations with a view to promoting human rights can be justified on the basis that it falls within any of the grounds provided in Article 15(2) simply because they are under the age of 18. If so, any restrictions on the exercise of the right by CHRDs have to be justified with reference to a balancing exercise with the child’s other rights (e.g. to be protected from harm, right to education) or the rights of others (e.g. the enjoyment of the rights of other children in the context of a school). In such instances, the default position should not be to assume that education or safety will always prevail. Moreover, as in all such instances, the restriction must be lawful, necessary and proportionate. 

The right to peaceful assembly can ‘help to give voice to minority opinions and bring visibility to marginalized or underrepresented groups.’¹⁹ It is particularly important for CHRDs as they often lack political power and are not represented in traditional structures. ²⁰ Gathering with others online or in person for a common purpose provides an important way in which children can come together to be heard and to take part in social and political life. It is also an important means by which children can assert and claim all of their other human rights (such as the right to education, to be protected from harm etc.). Children with disabilities have a specific right to ‘enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community’ (Article 23, CRC). As with the right to freedom of association, States should not interfere with the exercise of the right and should take positive steps to ensure that all children can enjoy it safely. 

The Human Rights Committee has said that States must thus promote an enabling environment for the exercise of the right of peaceful assembly without discrimination, and put in place a legal and institutional framework within which the right can be exercised effectively. Specific measures may sometimes be required on the part of the authorities. For example, they may need to block off streets, redirect traffic or provide security. Where needed, States must also protect participants against possible abuse by non-State actors, such as interference or violence by other members of the public,²¹ counterdemonstrators and private security providers. States must ensure that laws and their interpretation and application do not result in discrimination in the enjoyment of the right of peaceful assembly, for example on the basis of race, colour, ethnicity, age, sex, language, property, religion or belief, political or other opinion, national or social origin, birth, minority, indigenous or other status, disability, sexual orientation or gender identity, or other status.²² Formal notification requirements for peaceful assemblies may discriminate against CHRDs who may not be aware of them and may not be in a position to comply with them.

Effective implementation of Article 15 for CHRDs would ensure that national laws and policies guidance do not impose arbitrary age limits prohibiting children from taking part in peaceful assembly. States should also remove legislative obstacles to children’s enjoyment of their rights, such as laws setting a lower age for organising or participating in peaceful assemblies, those requiring parental consent to join an association or an assembly, and those which allow the police to remove children who assemble peacefully in groups.²³ The Special Rapporteur on freedom of peaceful assembly and of association acknowledges that, while there may be safety concerns when young people participate in some public demonstrations, ‘a blanket ban on individuals of a certain age eliminates the right to participate in peaceful public assemblies for an entire portion of the population, without exception, contrary to Article 15.’²⁴ The realization of children’s right to freedom of peaceful assembly therefore necessitates a recognition of both children’s capacities and vulnerabilities, such that States must facilitate their right and implement special measures to protect them.

Schools also have a role to play in enabling the exercise of this right. They can support children through education about their rights and how to exercise them safely (see section 3.3). States should provide guidance to schools as to what constitutes a rights-respecting response to children who choose to take part in peaceful assemblies either in school or elsewhere. Educational authorities and institutions should consult with students to develop policies on participation in peaceful assemblies.

States have a positive duty to actively protect assemblies that are peaceful, including protecting the participants against persons or groups that attempt to disrupt an assembly or carry out violent acts against the participants.²⁵ This obligation also applies to children, but the CRC places additional obligations on States to ensure that children are protected from harm, whether they are taking part in an assembly of children or in an assembly among adults. Moreover, the right ‘is protected even in the event of sporadic violence or the existence of criminal acts committed by other members of the group provided the person remains peaceful in his or her intentions or behaviour.’²⁶ The Human Rights Committee has said that ‘only law enforcement officials trained in the policing of assemblies, including on the relevant human rights standards, should be deployed for that purpose. Training should sensitize officials to the specific needs of individuals or groups in situations of vulnerability, which may in some cases include women, children and persons with disabilities, when participating in peaceful assemblies.’ ²⁷

In practice, concern about children’s safety often has the effect of overriding their rights to get involved in peaceful assemblies. Article 15 needs to be read in the context of other rights in the CRC and, in particular Article 5 (parents’ right to advise and guide in line with children’s evolving capacities); Article 3(1) (best interests as a primary consideration); Article 6 (life, survival and development) and Article 19 (protection from harm).

Moreover, the Declaration States that: 

When there are concerns about safety, a default response by States actors might be to prevent children taking part whereas a rights-based response would be to see what could be done to ensure that children are able to exercise their civil and political rights and to make sure that children are safe when they do so (for example by taking part in an assembly). Moreover, when children are taking part, the police response should refrain from the use of methods of dispersal or containment that might endanger or have a disproportionately adverse impact on children (high frequency ultrasound devices, plastic bullets, teargas, tasers, etc.). Any forceful methods of crowd control should be strictly regulated and considered to be at the far end of a continuum.²⁸ There are additional challenges when CHRDs are taking part in protests that are not ‘peaceful’, whether or not they begin that way.

The Human Rights Committee has stressed that the onus is on the authorities to justify any restrictions and that the imposition of any restrictions should be guided by the objective of facilitating the right, rather than seeking  unnecessary and disproportionate limitations. Restrictions must not be discriminatory, impair the essence of the right, or be aimed at discouraging participation in assemblies or causing a chilling effect.³⁰ Prohibitions on CHRDs taking part in assemblies online or offline with a view to promoting human rights cannot be justified on the basis that it falls within any of the limitations repeated at Article 15(2) simply because the rights holders are under the age of 18. Any restrictions on the exercise of the right has to be justified with reference to the child’s other rights (e.g. to be protected from harm or the right to education) or the rights of others (e.g. the enjoyment of the rights of other children in the context of a school). In all such instances, the interference with the child’s right under Article 15 must be pursuing a legitimate aim, lawful, necessary and proportionate. Proposed justifications (e.g. that the police may not be equipped or trained to protect children) need to be assessed carefully to determine that they are necessary and proportionate. 

3.5.4 Right to Privacy and Protection from Attacks on Reputation

Article 16 repeats the wording of Article 17 of the ICCPR. However, it needs to be interpreted and applied with reference to children’s other rights, in particular their right to guidance from parents (Article 5), to have their best interests as a primary consideration (Article 3(1), to have their views given due weight (Article 12) and to be protected from harm (Article 19). Moreover, what constitutes an interference with privacy and/or honour or reputation should also be interpreted in a way that includes an understanding of how issues of privacy and attacks on reputation play out in CHRDs’ lives, including, in particular, in online media.³¹ 

The right is usually abbreviated as ‘the right to privacy’ but it embraces a multitude of issues that are relevant to the work of HRDs. Moreover, it applies to activities both online and offline. These include forms of surveillance (including facial recognition systems and the use of biometric data), searches of the body and property, the use of handcuffs, passing of personal information, the interception and recording of communications and hacking/ spamming of CHRDs accounts (with threats, porn, etc). The right has also been interpreted to include respect for personal autonomy and development of personality as well as how an individual projects this, all of which is relevant for HRDs.³² 

While all HRDs are entitled to protection from interference with their right to privacy, one factor that is distinctive for CHRDs is the role of parents: ‘parents will be entitled to information about their children where it is necessary and relevant for the purpose of ensuring that they are able to perform their obligations with respect to the care and development of their child (Articles 5, 18 and 27).’³³ Even so, any interference with the privacy (e.g. correspondence, emails, text and other social media messages) of the child by a parent should be exercised in line with the child’s evolving capacities, have the child’s best interest as a primary consideration and take children’s view into account.

A further distinguishing factor for many CHRDs is the fact that they will be attending schools and that the schools may be the focus of their human rights activity. Schools and teachers may have limited understanding that children continue to enjoy their right to privacy in the school environment and that any interference with it shall be lawful, necessary and proportionate. The right to be protected from attacks on honour and reputation is also pertinent for CHRDs, many of whom report personal abuse intended to undermine their integrity and damage their reputation. The provision needs to be interpreted in a child specific way. For example, many CHRDs have reported being bullied, including cyber-bullied, for their HRD activities by other children in their school. Therefore, schools must have effective procedures for addressing this and must implement them. 

The child is entitled to the protection of the law against such interference or attacks. This places States under an obligation not to conduct such attacks themselves but also to do all that is reasonable to stop non-State actors from doing so. The media has a particular role to play here. States should ensure that there is training for media professionals and codes of conduct that address the child’s right to privacy. States should ensure that the media, including social media, are required by law to protect children from any such attacks and to address violations in ways that can restore the child’s reputation and honour. 

3.5.5 Access to Information in the Media

Article 17 applies to the mass media, including radio, television, newspapers, magazines and all forms of social media, whether public or private. The right of access to such media is core to the work of HRDs and children enjoy a distinctive right in this context. ‘While the rationale underpinning it is often considered to be protective or developmental, it is not limited to a protective focus and prioritizes the positive functions to be performed by mass media sources.’³⁴ Read alongside Articles 6 and 7 of the Declaration, it is clear that this includes information about their human rights and how they are given effect domestically. Article 17 is a relatively weak obligation (the States only has to ‘encourage’) and is strengthened by the Declaration in relation to information and resources that support the activity of CHRDs. 

Article 17 includes a broad and distinctive set of obligations that could support the activity of CHRDs. For example, the ‘dissemination of information of social benefit to the child’ should include information that provides insights into current affairs on the issues that CHRDs are interested in (or may become interested in due to having received such information). The specific reference to international co-operation and access to material from a diversity of sources in Article 17(b) underpins the requirement for children to have access to material on global issues many of which (such as climate change, migration) are the focus for many CHRDs. 

For CHRDs, it is especially important that this includes accessible information on children’s rights themselves, instead of an obligation that links to Article 29 (aims of education) and Article 42 (dissemination of the CRC) and is further underscored by Article 6 of the Declaration (above) and Article 14 of the Declaration which requires States to take measures ‘to promote the understanding by all persons under its jurisdiction of their civil, political, economic, social and cultural rights.’ 

These measures include:

Article 17(d) places States under a specific obligation to encourage the mass media to make information accessible to children who use minority languages and/or are from indigenous communities. Article 17 encourages the mass media to protect children from information that is injurious to his/her well-being. This is generally targeted at inappropriate sexual and violent content and States should therefore encourage the mass media to protect all children from such harmful content, including CHRDs who may have such material targeted at them with a view to causing them distress in, for example, social media feeds. Children should be involved in any initiatives to develop policies or guidance and to make them accessible in line with Article 12 of the CRC.

The media also has an important role to play in ensuring that children get access to accurate information and are not exposed to misinformation (so-called ‘fake news’). This type of information should also be considered ‘injurious to a child’s well-being’. Moreover, journalists and those who produce media content need to build their capacity and understanding about child rights so that they can promote a child rights perspective in their communications.

3.5.6 Civil and Political Rights: Summary of Implementation Measures