The international youth justice framework is made up of a number of international and regional treaties, conventions and standards.58 Some of them are specified for children under 18, and others apply to all people but can be specifically relevant to children. Although the international community has developed child specific standards for children in conflict with the law, it is important that we do not forget that there is a comprehensive set of general standards governing criminal justice systems which can be used to evaluate youth justice systems and to strengthen the case for reform.
1 THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS
The political context
Alston highlights that the Convention's potential for universal ratification and its goal of establishing universally applicable standards position it at the center of debates on the universality of human rights norms versus their relativity to individual societies He emphasizes the political context of the Convention's drafting, particularly the Cold War, which made it more attuned to diverse cultural perspectives compared to earlier international human rights instruments, contributing to its near-universal ratification However, Alston raises concerns about the Convention's ability to withstand critiques from cultural relativists and questions whether it can maintain sufficient precision for legal enforcement while respecting a plurality of norms, rather than serving merely as an aspirational document.
Cultural pluralism
The Convention has faced criticism for its approach to the intricate and evolving relationship between children, their families, and the state Many social commentators highlight that concepts of "childhood" and "family" are culturally constructed, making the modern understanding of childhood socially and historically specific A significant concern is the challenge of balancing universal rights with the realities of cultural pluralism.
42 P Alston, „The Best Interests Principles: Towards a Reconciliation of Culture and Human Rights‟ in P Alston (ed) op cit note 36 p 6
The UN Declaration on Human Rights lacks an enforcement mechanism, and not all original signatories of the European Convention on Human Rights agreed that its provisions would be enforceable in national or transnational courts.
45 A James, C Jenks and A Prout, Theorizing Childhood (Cambridge, Polity Press, 1998) cited in R Burr,
„Global and Local Approaches to Children's Rights in Vietnam‟, Childhood 2002( 9) p 51
2 THE NATURE OF INTERNATIONAL LAW RELATING TO THE CHILD
The Convention on the Rights of the Child is rooted in a contemporary Western understanding of childhood, viewing children as individuals with inherent rights who require protection and support This perspective is encapsulated in Article 12, which mandates that State Parties ensure children capable of forming their own views can express them freely on matters affecting them It emphasizes the importance of allowing children to be heard in judicial and administrative proceedings, either directly or through representatives Freeman highlights that this right is crucial not only for its content but also for affirming the child's status as a complete human being, possessing integrity, personality, and the capacity to engage fully in society.
Not all societies adopt an individualistic approach; many, particularly in Asia and other developing regions, prioritize the family unit over individual members This perspective is also evident in historical and contemporary social groups within developed nations For instance, Vietnam's Law on the Protection, Care and Education of Children (2004) emphasizes the importance of family in child welfare, reflecting a broader cultural recognition of familial significance.
„Children shall have the following obligations:
1 To show love, respect and piety towards grandparents and parents, politeness towards adults, affection towards the younger ones and solidarity with friends.‟
In Vietnam, children are expected to show respect for their elders, aligning with local cultural values; however, this expectation may conflict with the principles of the Convention on the Rights of the Child (CRC), particularly regarding the child's best interests as outlined in Article 3 This tension is not unique to Vietnam, as African human rights lawyers have similarly highlighted the contrast between individual rights, often emphasized in Western contexts, and the communal rights valued in many southern cultures Their advocacy for the recognition of communal rights is also evident in regional human rights discussions.
47 M Freeman, „The Convention - an English Perspective‟ in M Freeman (ed), op cit note 32 p 93
48 See, e.g R Burr, op cit note 45 p 9
International law concerning children is significantly shaped by documents from the Organization of African Unity, particularly the African Charter on the Rights and Welfare of the Child, which became effective in 2000.
The debate surrounding child welfare highlights the limited role of extended families in children's lives Stephen Toope references Barsh's notion that the concept of "family" in the Convention reflects the late 19th-century European ideal of the nuclear family.
Toope highlighted Gomien's concern that the Convention does not adequately respect extended family relationships within its provisions He pointed out that the term "family" primarily appears in the Convention in relation to "parents." Notably, only Article 5 of the CRC acknowledges the importance of extended family members in the child's life and community, as dictated by local customs.
The vagueness of provisions
The Convention has faced criticism for its loosely drafted provisions, which many describe as vague or imprecise This lack of clarity can lead to misinterpretations and ongoing debates In the context of Canada, Stephen Toope identifies three key issues stemming from these vague provisions First, he argues that the Canadian government, like others, might exploit these ambiguous obligations to evade substantial commitments, as evidenced by its action plan for children, which lacks measurable goals and timelines Second, he highlights the risk that the Canadian government may address complex issues similarly to other states, potentially leading to ineffective responses.
49 The African Charter divided human rights up to three categories: family‟s rights, peoples‟ rights reflecting
In African society, individuals are viewed not as isolated entities but as integral members of their communities, highlighting the importance of collective identity and social interconnectedness This perspective is emphasized in the African Charter, which underscores the value of community in shaping personal identity and responsibilities.
Human and Peoples' Rights: The System in Practice, 1986-2006 (2 nd edn, Cambridge, CUP, 2008) p 244
50 RL Barsh, „The Convention on the Rights of the Child: A Re-Assessment of the Final Text‟ [1989-1990]
New York Law School Journal of Human Rights, vol.7, p 146 cited in SJ Toope, „The Convention on the
Rights of the Child: Implications for Canada‟ in M Freeman (ed), op cit note 32
In the article "Whose Right (And Whose Duty) Is It - An Analysis of the Substance and Implementation of the Convention on the Rights of the Child," published in the New York Law School Journal of Human Rights, Gomien examines the complexities surrounding the rights and responsibilities outlined in the Convention on the Rights of the Child The analysis highlights the challenges in both the interpretation and enforcement of these rights, emphasizing the need for a collaborative effort among various stakeholders to ensure that children's rights are effectively upheld.
52 He gave some examples of Article 3(2), 10, 17 and 27 of the Convention
53 SJ Toope, op cit note 49 pp 43-44
International law concerning children's rights often features vague legislative provisions that appear to promote these rights but lack substance This ambiguity can lead to ongoing debates regarding the interpretation of the Convention's provisions, allowing for potentially dishonest interpretations that undermine the intended protections for children.
The Convention faces significant challenges, particularly regarding cultural pluralism and ambiguous provisions Toope highlights a crucial issue in Canada, where resource implications pose a major concern Given that Canada is one of the wealthiest nations, the resource challenges must be even more pronounced in developing countries.
While the Convention on children's rights is a significant milestone, it is not the definitive solution to all issues related to children's rights Michael Freeman highlighted that many states mistakenly believe they are in compliance with the Convention, despite significant gaps in their implementation He noted that numerous countries ratified the Convention without fully considering their existing laws and practices Each nation’s unique history and culture shape its approach to childhood, meaning that even with amendments aimed at promoting children's interests, the actual procedures and processes often do not align with the ideals set forth in the Convention.
In addition, other than periodic report, there are no monitoring mechanisms that can assure the compliance of State Parties with the Convention
This thesis acknowledges the challenges associated with the Convention, yet it remains pivotal for two key reasons Firstly, it offers the most effective normative framework for assessing the implementation of child rights across diverse nations, including Vietnam and England and Wales Secondly, it represents legal obligations that, if not adhered to by countries, can lead to significant practical consequences As the thesis unfolds, these challenges will be further examined.
57 M Freeman, „Introduction: Children as Persons‟ in M Freeman (ed), op cit note 32 p 4
The concept of legal pluralism in international youth justice frameworks can sometimes be overstated It is essential to recognize the shortcomings in its application, particularly in countries like Vietnam and England and Wales, where improvements are still needed.
An overview
The CRC emphasizes the best interests of children while addressing youth justice, acknowledging their inherent vulnerability It argues that punitive measures designed for adults do not benefit children or society in the long run Consequently, the international community has established a comprehensive framework for addressing the needs of children and young people who encounter legal issues.
The international youth justice framework consists of various treaties, conventions, and standards, with some specifically targeting individuals under 18 while others apply broadly but are particularly relevant to children While the international community has established child-specific standards for youth in conflict with the law, it is crucial to recognize the overarching general standards that govern criminal justice systems These general standards can serve as valuable tools for assessing youth justice systems and advocating for necessary reforms.
The Convention on the Rights of the Child (CRC) stands as the foremost international treaty dedicated to children's human rights It serves as a foundational framework that encompasses four key instruments related to youth justice, collectively known as the United Nations Youth Justice Standards and Norms.
The United Nations Guidelines for the Prevention of Juvenile Delinquency, known as the Riyadh Guidelines (1990), emphasize the importance of a proactive approach by States to prevent youth delinquency According to Guideline 1, this preventive strategy is crucial in addressing crime effectively.
58 The Children‟s Legal Centre and Y Care International, Youth Justice in Action (London, Y Care
59 The Riyadh Guidelines was adopted and proclaimed by General Assembly resolution 45/112 of 14
December 1990, available at http://www2.ohchr.org/english/law/juvenile.htm, last access date: 10/12/2010
The International Youth Justice Framework highlights the critical need for laws, policies, and programs aimed at preventing youth offending by focusing on essential aspects of a child's life, including the family, school, and community.
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, known as the Beijing Rules, were established in 1985 and serve as a foundation for the youth justice articles in the Convention on the Rights of the Child (CRC) These Rules emphasize the rights of children who are in conflict with the law, outlining essential standards for their arrest, trial procedures, and sentencing, while also defining the objectives of an effective youth justice system.
The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, known as the Havana Rules (1990), establish comprehensive standards for the treatment, protection, and care of individuals under 18 in detention centers These guidelines extend beyond prisons to include any facilities where children are unable to leave voluntarily, as mandated by judicial, administrative, or public authorities, regardless of whether they are operated by the state or private organizations.
Vienna Guidelines for Action on Children in the Criminal Justice System (1997)
The article outlines essential guidelines for implementing youth justice articles in the Convention on the Rights of the Child (CRC) and related instruments, focusing on both child offenders and child victims and witnesses It emphasizes the need for States to prioritize a child-centered youth justice process by establishing youth courts, creating diversion schemes, minimizing the number of children in closed detention facilities, and ensuring legal assistance for children.
Besides the CRC, there are other human rights treaties and standards which can also apply to children, including:
Convention on the Elimination of Racial Discrimination (CERD) 1965 62
International Covenant on Civil and Political Rights (ICCPR) 1966 63 - provides protection for people who are in the criminal justice system, when they are arrested,
60 The Beijing Rules was adopted by General Assembly resolution 40/33 of 29 November 1985, available at http://www2.ohchr.org/english/law/pdf/beijingrules.pdf, last access date: 10/12/2010
61 The Havana Rules was adopted by General Assembly resolution 45/113 of 14 December 1990, available at http://www2.ohchr.org/english/law/res45_113.htm, last access date: 10/12/2010
62 This Convention was adopted and opened for signature and ratification by General Assembly resolution
2106 (XX) of 21 December 1965, and entered into force on 4 January 1969, in accordance with Article 19, available at http://www2.ohchr.org/english/law/cerd.htm, last access date: 10/12/2010
The International Covenant on Civil and Political Rights (ICCPR) emphasizes that young offenders must be treated according to their age and should be kept separate from adult detainees This principle is crucial in ensuring that youth justice systems respect the rights and developmental needs of minors.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Convention on the Elimination of Discrimination Against Women (CEDAW)
Standards have been adopted, inter alia, on the:
treatment of people detained in prisons;
conduct of law enforcement officials;
use of non-custodial measures;
Regional human rights bodies have established standards for human rights and criminal justice alongside international norms Notably, Africa is the only region with a binding treaty specifically focused on child rights, exemplified by the adoption of the Charter on the Rights and Welfare of the Child.
The Covenant was established through General Assembly resolution 2200A (XXI) on December 16, 1966, and became effective on March 23, 1976, as per Article 49.
The International Covenant on Economic, Social and Cultural Rights was adopted by General Assembly resolution 2200A (XXI) on December 16, 1966, and it officially came into force on January 3, 1976, in accordance with Article 27 For further details, you can visit the official document at [OHCHR](http://www2.ohchr.org/english/law/cescr.htm), with the last access date being October 12, 2010.
The Convention, adopted by the United Nations General Assembly on December 18, 1979, became an international treaty on September 3, 1981 For more details, visit the official document at [CEDAW](http://www2.ohchr.org/english/law/cedaw.htm).
66 This Convention was adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, and entered into force 26 June 1987, in accordance with article 27
(1), available at http://www2.ohchr.org/english/law/cedaw.htm, last access date: 10/12/2010
The 67 Standard Minimum Rules for the Treatment of Prisoners, established by ECOSOC Res 663 C (XXIV) on July 31, 1957, and amended by ECOSOC Res 2076 (LXII) on May 13, 1977, alongside the Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment (GA Res 43/173, December 9, 1988), and the Code of Conduct for Law Enforcement Officials (GA Res 34/169, December 17, 1979), form a comprehensive framework for the humane treatment of individuals in detention Additionally, the Declaration of Basic Principles on the Independence of the Judiciary (ECOSOC Res 1989/60) and the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) adopted at the Eighth UN Congress on the Prevention and Treatment of Offenders in Havana, Cuba, from August 27 to September 7, 1990, further emphasize the importance of legal standards and protections Lastly, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and Guidelines on the Role of Prosecutors highlight the necessity for accountability and ethical conduct within law enforcement.
3 INTERNATIONAL YOUTH JUSTICE FRAMEWORK of the Child in 1990 This Charter contains specific protection for children under the age of
18 years who are in conflict with the law 68
The international youth justice framework, particularly the Convention on the Rights of the Child (CRC), establishes a global consensus affirming that all children possess rights to protection, participation, and essential material provisions This consensus emphasizes children's rights to life, freedom from discrimination, protection in armed conflicts, and safeguarding against cruel and degrading punishment It mandates that justice systems treat children with special consideration, ensuring freedom from exploitation and abuse Additionally, it obligates States Parties to develop youth justice systems that adhere to child rights principles, as summarized in the 2006 report "Youth Justice in Action" by Rachel Harvey and Amanda Lloyd.
The issues of providing a normative framework across different jurisdictions
Despite the existence of international standards and guidelines for juvenile justice for several decades, evidence indicates that the rights and principles associated with it are often ignored or violated The Committee on the Rights of the Child frequently criticizes policies and practices in juvenile justice, highlighting issues in approximately two-thirds of the state reports it reviews Alston suggests that this persistent neglect can be understood on two distinct levels.
Juvenile justice frequently lacks prioritization at the national level, even amidst reforms in criminal justice systems Alston highlights that this oversight stems from weak political influence and low visibility for children, compounded by budgetary constraints and a lack of comprehensive policies addressing juveniles in conflict with the law Additionally, broader social justice issues remain unaddressed due to the underdeveloped voice of civil society in these contexts.
85 See ibid for more detail
86 UNICEF, op cit note 80, cited in BL Bottoms, CJ Najdowsky & JS Goodman (eds) Children as Victims,
Witnesses, and Offenders: Psychological Science and the Law (New York, Guilford Press, 2009) p 379
87 See P Alston & S Parker, „Introduction‟ in P Alston, S Parker & J Seymour (eds), Children, Rights, and the
Alston highlights that many international standards related to economic, social, and cultural rights, such as access to adequate food, housing, medical care, and education, require significant reforms for realization Consequently, state obligations are defined by the progressive attainment of these goals, often articulated in non-declaratory terms Furthermore, even standards inspired by civil rights, particularly in juvenile justice, are frequently treated as policy issues that depend on resource allocation, such as the establishment of diversionary alternatives.
The CRC is a good example of this phenomenon It urges state parties to establish rights
The declaration emphasizes that states are obligated to utilize the maximum extent of their available resources to implement the Convention, as recognized by the CRC While acknowledging that certain costly reforms, such as the right to health care, may require time and be achieved progressively, there remains an international duty for state parties to prioritize resource allocation This specific reference helps ensure that nations with transitional or weak economies cannot evade their responsibilities under the Convention.
The Committee on the Rights of the Child has raised serious concerns about the adverse effects of structural adjustment programs and the transition to a market economy on children's rights It has called for strict monitoring of these changes and the adjustment of policies to safeguard children's economic, social, and cultural rights, highlighting the need for adequate resources to effectively implement the Convention on the Rights of the Child (CRC).
More generally, given that children‟s rights are interconnected, high level political commitment has to drive the law reform However, the dynamic process of law reform can
To achieve meaningful implementation in Canada, it is essential for the government to be urged to reallocate its expenditures towards necessary services, or alternatively, to impose higher taxes, as highlighted by R Macdonald in "A Canadian Perspective" within the work edited by P Alston and G Brennan.
Convention and Australia (Canberra, Human Rights and Equal Opportunity Commission, 1991) p 80
90 Vienna Declaration and Programme of Action (1993), A/CONF.157/24, para.21
91 UN Committee on the Rights of the Child, op.cit note 83 para.52
International law on youth sentencing requires not only legal reform but also effective law enforcement and adequate resources to be successful It is essential that these laws are supported by economic and social policies for proper implementation A reflection period is necessary to ensure that the outcomes of these reforms are internalized within society Crucially, civil society engagement is vital for fostering behavioral change and developing laws that promote children's rights Broad societal involvement is necessary to cultivate a culture of human rights for children Ultimately, while legal reforms can drive societal attitude changes, achieving cultural transformation is essential On the international stage, the challenge lies in converting the universal acceptance of children's rights into their universal observance.
4 INTERNATIONAL LAW ON YOUTH SENTENCING
Numerous international rules and standards exist regarding children, particularly in the context of youth sentencing as a decision-making process These regulations can be categorized into key principles that govern the treatment and rights of young offenders.
(1) the aim of youth sentencing; (2) alternatives (options) available for youth sentencing and (3) information for sentencing young people.
The aims of youth sentencing - rehabilitation/restorative approach in „the best
According to the CRC, the rights of the child should be recognised and guaranteed within States Parties‟ jurisdictions
In all matters involving children, the primary focus must be on their best interests, whether these actions are carried out by public or private social welfare institutions, courts, administrative authorities, or legislative bodies.
92 See earlier discussion on the challenge of implementation
93 See, e.g DJ Bederman, The Spirit of International Law (Athens, University of Georgia Press, 2002), CH Stockton, Outlines of International Law (Michigan, University of Michigan, 1914) chapter 1
4 INTERNATIONAL LAW ON YOUTH SENTENCING
The concept of "the best interest of the child," while referenced in various provisions of the CRC, lacks a clear definition and remains somewhat ambiguous This phrase, which has only recently emerged in Western legal systems as an evolution of the older idea of "the well-being of the child," represents a modern legal principle that has not been thoroughly examined.
In youth sentencing, Article 3(1) emphasizes that sentencers must prioritize the best interests of the child when determining appropriate sentences This principle serves as a crucial objective of youth justice and a fundamental sentencing guideline According to Zermatten, the best interests principle has two key interpretations: it acts as a procedural rule that requires careful evaluation of the potential impacts of sentencing decisions on the child, and it establishes a substantive right, obligating States Parties to implement mechanisms that ensure this principle is considered in sentencing procedures This article examines the procedural aspects of youth sentencing in Vietnam and England and Wales, particularly through the sentence report process, while recognizing that these procedures significantly influence substantive outcomes.
Defining the best interests of a child remains a complex and vague endeavor, as highlighted by Zermatten, who notes that no one can definitively determine what is best for each individual child.
The concept of the "best interest of the child" has become controversial, as noted by Currie and De Waal, due to its historical failure to provide a reliable standard This ambiguity raises concerns about potential social engineering, where helping professionals or social services may impose their own interpretations of what they believe is in the child's best interests.
96 J Zermatten, Working Report: The Best Interests of the Child - Literal Analysis, Function and
Implementation (Sion, Institut International Des Droits De L‟enfant, 2010) p 5
99 UNHCR Guidelines on Formal Determination of the Best Interests of the Child, Provisional Release, May
2006, p 6, available at: http://www.unicef.org/violencestudy/pdf/BID%20Guidelines%20-
%20provisional%20realease%20May%2006.pdf , last access date: 10/10/2010
International law on youth sentencing emphasizes that the best interests of the child must be considered, taking into account individual circumstances such as age, maturity, parental involvement, and environmental factors Sentencers are required to assess these elements as part of a procedural framework during the sentencing process.
Nonetheless, as Zermatten states, it is clear that the „best interests‟ principle must respect:
the importance of every child as an individual with opinions;
the short-, medium- and long-term perspectives of the life of the child, bearing in mind that the child is a human being in development;
the global spirit of the CRC; and
an interpretation that is not „culturally relativist‟ or that denies other rights of the CRC, for example, the right to protection against harmful traditional practices and corporal punishment 102
The Committee on the Rights of the Child emphasizes that prioritizing the best interests of the child in sentencing requires a shift from traditional punitive objectives like retribution to a focus on rehabilitation and restorative justice for child offenders, while still ensuring public safety.
Youth sentencing aims to facilitate the reintegration of children into society, encouraging them to adopt constructive roles Article 40(1) of the Convention on the Rights of the Child (CRC) emphasizes that children accused of crimes should be treated in a way that upholds their dignity and worth, fostering respect for human rights and the fundamental freedoms of others, while also considering their age.
103 UN Committee on the Rights of the Child, Children’s Rights in Juvenile Justice (CRC/C/GC/10, 2007) para.10, p 5
4 INTERNATIONAL LAW ON YOUTH SENTENCING the desirability of promoting the child‟s reintegration and the child‟s assuming a constructive role in society 105
The Committee on the Rights of the Child emphasizes that reintegration of children in conflict with the law must ensure their full participation in the community, free from stigmatization, social isolation, or negative publicity To promote successful reintegration, all actions taken should support the child's development into a constructive and active member of society.
The principles of the Convention on the Rights of the Child (CRC) have been expanded upon through various international and regional treaties, conventions, and standards that emphasize a rehabilitative approach in all dealings with young offenders, including youth sentencing.
The "best interests" principle serves as a fundamental guideline for international rules and standards regarding alternatives to custodial sentencing It emphasizes that imprisonment should be a measure of last resort and highlights the importance of considering the child's circumstances and needs during the sentencing process.
Youth sentencing alternatives - non-institutionalisation of children
The Convention places a strong emphasis on the fundamental rights of children, particularly regarding their personal development and education It asserts that children should be nurtured in a family setting filled with happiness, love, and understanding to ensure their full and harmonious growth.
106 UN Committee on the Rights of the Child, op cit note 102, para.29
107 See four other important youth justice instruments: UN Guidelines for the Prevention of Youth
The Riyadh Guidelines (1990), Beijing Rules (1985), and Havana Rules (1990) establish international standards for addressing youth delinquency and protecting the rights of youths in the justice system These frameworks, along with the Vienna Guidelines (1997) and the Tokyo Rules (1990), emphasize non-custodial measures and the humane treatment of young offenders Additionally, regional instruments like the African Charter on the Rights and Welfare of the Child (1990) further reinforce these principles, ensuring the protection and welfare of children involved in criminal justice.
110 The CRC, para.7 of the Preamble
International law emphasizes the importance of youth sentencing that prepares individuals to lead independent lives within society It aligns with the ideals set forth in the United Nations Charter, promoting values such as peace, dignity, tolerance, freedom, equality, and solidarity.
Children are in a crucial developmental stage, and the family plays a vital role in their growth and well-being, recognized as the fundamental unit of society The international child rights framework emphasizes that a child should only be removed from their family when absolutely necessary and in their best interests If a child is deprived of family care, the State must ensure they receive special protection and assistance Additionally, education significantly contributes to a child's well-being, as it equips them with the skills needed to adapt to the world Therefore, the primary goal of sentencing young offenders is rehabilitation and reintegration into society as responsible citizens, rather than punishment.
International standards emphasize that, in line with the "best interests" principle, children should not be separated from their families during sentencing Institutionalization should be minimized, and whenever possible, young offenders should remain at home to preserve their family, social, and community connections It is believed that through rehabilitative and educational measures, a child's values, attitudes, and personality can be positively influenced, while purely punitive approaches fail to achieve meaningful change.
111 The CRC, para.8 of the Preamble
112 For different perspective of the concept of what children are and what childhood consists of, see J Fionda (ed), Legal Concepts of Childhood (Oregon, Hart Publishing, 2001)
International human rights law advocates for a restorative approach to children and young people under 18 who are in conflict with the law, emphasizing their welfare, rehabilitation, and reintegration This is supported by the Children’s Legal Centre and Y Care International, along with Article 40(1) of the Convention on the Rights of the Child (CRC).
International law on youth sentencing emphasizes the importance of addressing the root causes of offending behavior to prevent hindering young individuals' development and life opportunities Failure to do so can lead to an increase in criminal activities among youth This principle is highlighted in the Beijing Rules, which advocate for a rehabilitative approach to juvenile justice.
Progressive criminology emphasizes the preference for non-institutional treatment over institutional methods, as research shows minimal differences in success rates between the two Institutional settings often expose individuals, particularly vulnerable youths, to adverse influences that can outweigh any potential benefits of treatment The negative impacts of losing freedom and being separated from their familiar social environments are particularly pronounced for young people, who are still in critical stages of development.
According to the CRC, detention or imprisonment of a child should be a last resort, as punitive approaches that disregard rehabilitation are unsuitable for youth cases While retributive sanctions may have some merit in adult cases or severe youth offenses, the focus must remain on the well-being and future of the young person Although avoiding custody is preferable, it may not always be feasible, especially in cases of violent or persistent offenses It is crucial to determine that depriving a child of liberty is the only necessary measure for their protection, emphasizing that "no other appropriate response" indicates a lack of alternatives rather than the absence of options.
117 The Children‟s Legal Centre and Y Care International, op cit note 58 p 9
118 The Beijing Rules, commentary of Rule 19(1) Supporting this point, many scholars suggest abolition of children‟s imprisonment, see, e.g B Goldson, „Child Imprisonment: A Case for Abolition‟ [2005] Youth Justice, vol.5, pp 77-90
120 D Rauschning, K Wiesbrock & M Lailach, Key resolutions of the United Nations General Assembly:
Resolution 4 of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders emphasizes that youth offenders should only be incarcerated as a last resort, highlighting the need for alternative responses to juvenile delinquency (A/CONF.87/14/Rev.1, 1980).
4 INTERNATIONAL LAW ON YOUTH SENTENCING situations in which no other measures would be suitable or beneficial to the child or serve to protect the public 123
International standards advocate for minimizing institutionalization by utilizing alternative measures that cater to the unique needs of youth It is essential to fully leverage existing alternative sanctions while developing new ones that prioritize public safety Probation should be maximized through suspended and conditional sentences, along with other suitable dispositions, which can be implemented individually or in combination.
Care, guidance and supervision orders;
Financial penalties, compensation and restitution;
Intermediate treatment and other treatment orders;
Orders to participate in group counselling and similar activities;
Orders concerning foster care, living communities or other educational settings;
The Tokyo Rules advocate for the implementation of community sanctions within the criminal justice system, emphasizing the importance of a diverse range of non-custodial options from pre-trial to post-sentencing They highlight the need to minimize unnecessary imprisonment and promote the management of offenders within the community Additionally, the rules encourage greater community involvement in criminal justice processes and position the increased use of community sanctions as a step towards depenalisation and decriminalisation, particularly for young offenders.
123 The Children‟s Legal Centre and Y Care International, op cit note 58 p 28
4 INTERNATIONAL LAW ON YOUTH SENTENCING
Youth sentencing information - the child‟s circumstances and needs
When determining a sentence for a child, the court must ensure that the punishment is proportionate to both the offense committed and the individual circumstances and needs of the child, as well as the broader needs of society It is essential for the judge to be fully informed about the child's situation to make an appropriate decision.
Before sentencing, it is essential for the competent authority to thoroughly investigate the background and living conditions of the youth involved in the case, as well as the circumstances surrounding the offense, except in minor offenses This investigation is crucial for ensuring a fair and informed adjudication of the case.
According to Rule 16 of the Beijing Rules, it is essential for the competent authority to receive comprehensive information about youth offenders, including their social and family backgrounds, school histories, and educational experiences This is typically achieved through social inquiry reports, which are vital tools in legal proceedings involving minors The rule emphasizes the necessity of having adequate social services to produce professional social inquiry reports This provision is crucial to the current study, which focuses on the specific laws and practices related to the information used in the sentencing of youth offenders.
To summarise, the international youth justice framework requires State Parties to establish a youth justice system in which the best interests of the child is recognised and guaranteed
To prioritize the best interests of the child in sentencing, it is essential to adopt rehabilitation and restorative justice policies, reserving custody as a last resort States Parties are obligated to consider young defendants' circumstances and needs, legislating alternatives to deprivation of liberty and ensuring their effectiveness and availability.
127 The Beijing Rules, Rule 16, commentary
The implementation of the Criminal Records Check (CRC) in Vietnam and England and Wales emphasizes the importance of providing the competent authority with relevant information about youth offenders To ensure a fair sentencing process, it is crucial that adequate tools, such as social inquiry reports, are accessible to facilitate informed decision-making.
5 IMPLEMENTATION OF THE CRC IN VIETNAM AND ENGLAND AND WALES
All states that ratify the Convention on the Rights of the Child (CRC) are required to align their national legislation with its provisions The UN Committee on the Rights of the Child emphasizes that countries must review their laws to ensure compliance with the CRC after ratification Both Vietnam and the UK have recognized the importance of protecting children's rights and have ratified the CRC, making them accountable to the international community for adhering to the obligations set forth in the Convention Consequently, they are legally bound to implement and uphold international standards regarding children's human rights.
The role of international law within national law is complex, with various approaches to its integration Ideally, the Convention on the Rights of the Child (CRC) should be incorporated into national law through methods such as direct applicability, incorporation, and harmonisation Direct applicability allows international conventions to be treated as part of municipal law, while incorporation involves adopting specific legislation to include the convention's text in national law Harmonisation entails reviewing national legislation to ensure it aligns with the convention, enacting new laws when necessary to eliminate discrepancies.
128 See UN Committee on the Rights of the Child, Experts to Examine Reports from Lebanon, Greece,
Gabon, United Arab Emirates, Mozambique, Chile, Malawi, Bahrain and Andorra (29 th session, 2002), available at: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsIDT88&LangID=E, last access date: 10/08/2010
129 See, e.g MN Shaw, International Law (6 rd edn, Cambridge, CUP, 2008)
130 See Radda Barnen, Comparative Study on the Political and Legal Status of the UN Convention on the
Rights of the Child in Europe 1997 (Radda Barnen, 1997) p 8
5 IMPLEMENTATION OF THE CRC IN VIETNAM AND ENGLAND AND WALES
In both Vietnam and the UK, the Convention on the Rights of the Child (CRC) was not directly enforceable upon ratification Instead, both countries opted for harmonisation to ensure compliance with the convention Consequently, if a dispute arises regarding the convention in a domestic court, the court is unable to apply the convention until the relevant provisions have been integrated into domestic law.
The motivation and response of the two countries upon ratification
Vietnam signed the CRC on 26 January 1990, and then ratified it without reservation on 20 February 1990 Vietnam was the first Asian country to do this, and the second in the world
In Vietnam, the rapid and enthusiastic signing of the Convention occurred with minimal consideration for the challenges of implementation This lack of debate may stem from the government's acknowledgment of its underdeveloped legal framework concerning children's rights and a strong desire to enhance these rights, reflecting its longstanding commitment to child welfare Consequently, Vietnam ratified the Convention swiftly and without reservations, aiming to gain insights and support to advance its legal system for children.
Although the Vietnamese government initially did not prioritize aligning the Convention with domestic law before ratification, it has since shown a commitment to harmonizing measures post-ratification The years 1989-1990 were designated as the Year of the Vietnamese Child, marking a significant focus on children's rights In September 1990, Vietnam participated in the World Summit for Children, and by March 1991, it had signed the World Declaration on the Survival, Protection, and Development of Children Subsequently, the Vietnamese National Summit for Children took place in Hanoi on December 11-12, 1991, gathering over 250 officials from central and provincial governments, representatives from the United Nations and NGOs, as well as members of the diplomatic community and media.
131 UN Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under
Article 44 of the Convention: Vietnam (CRC/C/3/Add.4, 1992) s C, para.21-34
The implementation of the Convention on the Rights of the Child (CRC) in Vietnam began with the adoption of the National Programme of Action for Children (1991-2000), which outlined the government's strategy to fulfill its commitments made at the World Summit for Children A significant milestone was the enactment of the Law on the Protection, Care and Education of Children in 1991, which established children's rights and outlined the responsibilities of families, schools, and society in ensuring child welfare.
The program primarily aimed to enhance children's living standards instead of reforming the Vietnamese juvenile justice system During that period, there was a lack of immediate plans to improve youth justice in alignment with the Convention, and discussions regarding its implementation in this area were virtually nonexistent Additionally, all the legislation mentioned in Vietnam's initial report on the Convention's implementation was already in place before the Convention was adopted.
Vietnam's early ratification of the Convention on the Rights of the Child (CRC) reflects the government's acknowledgment of its underdeveloped legal system and its commitment to enhancing children's rights in line with its traditions By ratifying the CRC, Vietnam became legally obligated to integrate the Convention into its domestic laws While the government has shown a positive commitment to implementing the Convention, the area of youth justice has not been a primary focus during this period.
The United Kingdom government signed the Convention on April 19, 1990, and ratified it on December 16, 1991, with its provisions taking effect on January 15, 1992 Upon ratification, the UK made several reservations and declarations, notably reserving the right not to apply Article 37(c), which mandates the separate accommodation of detained children from adults Additionally, the UK reserved its right to maintain the operation of children's hearings in Scotland as per Article 37(d).
5 IMPLEMENTATION OF THE CRC IN VIETNAM AND ENGLAND AND WALES
The UK ratified the Convention with a sense of complacency, believing its existing English laws sufficiently protected children's rights Government minister Virginia Bottomley frequently asserted that English law surpassed the Convention's standards, highlighting the Children Act of 1989 as a "children's charter." In discussing the principle of "the best interests of the child," Freeman emphasized the significance of the Convention in shaping these rights.
„does not set a standard as high as that found in English law‟ 136 He also referred to the
1989 Act in which the child‟s welfare is considered as the court‟s paramount consideration, while the Convention merely states that the best interests of the child are „a primary consideration‟
The UK government, having played a significant role in the drafting of Convention 137, expressed intentions to sign and ratify it shortly after its adoption However, it became evident that the government was not planning to amend existing legislation to ensure full compliance with the Convention, leading to perceptions of half-hearted support, accompanied by several reservations The then Secretary of State for Foreign and Commonwealth Affairs indicated that these reservations would allow the UK mainland to fulfill its obligations without the need for additional resources Consequently, there were no immediate plans to implement domestic legislation or a code to align domestic law with the Convention.
135 As cited in M Freeman, op cit note 47 p 93
137 HC Deb 5 Dec 1988, Column 73, available at http://www.publications.parliament.uk/cgi- bin/newhtml_hl?DB=semukparl&STEMMER=en&WORDS=rights%20of%20the%20child&ALL=&ANY=
&PHRASE=%22rights%20of%20the%20child%20%22&CATEGORIES=&SIMPLE=&SPEAKER=&COL OUR=red&STYLE=s&ANCHOR=Writtens-8_spnew11&URL=/pa/cm198889/cmhansrd/1988-12-
05/Writtens-8.html#Writtens-8_spnew11, last access date: 10/10/2010
Recently, the reservations previously in place have been lifted, applying only to specific dependent territories For further details, visit the United Nations treaties page.
5 IMPLEMENTATION OF THE CRC IN VIETNAM AND ENGLAND AND WALES
Following the ratification in youth justice, the Criminal Justice Act 1991 established a sentencing framework for both adults and children This Act introduced significant changes, including renaming the juvenile court to the youth court, raising the age limit for offenders to 17 years, and mandating a pre-sentence report in the sentencing process However, these modifications concerning young offenders were implemented without consideration of the Convention, as the Act was drafted and enacted without any reference to it.
English law does not fully align with international standards regarding children's rights Freeman's survey indicated that there is a misplaced complacency about these rights in England, revealing the need for legislative changes, improved monitoring of practices, and a stronger focus on protecting and promoting children's interests Additionally, the Committee on the Rights of the Child raised significant concerns about the UK's compliance in various areas, particularly in the administration of the juvenile justice system.
The compatibility of national legislation on juvenile justice with the Convention's articles 37 and 40 is questionable due to the low age of criminal responsibility.
The Committee expressed concerns regarding the application of "secure training orders" for children aged 12 to 14 in England and Wales, as well as the establishment and management of Secure Training Centres It concluded that these practices do not comply with articles 3, 37, 39, and 40 of the Convention, and recommended pursuing reforms to address these issues effectively.
145 UN Committee on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland (CRC/C/15/Add.34, 1995) para.17
5 IMPLEMENTATION OF THE CRC IN VIETNAM AND ENGLAND AND WALES those issues as well as to ensure that the system of the administration of juvenile justice is child-oriented 147