Human Rights Watch Submission to the Committee on the Rights of the Child

March 2015

Human Rights Watch Submission to the Committee on the Rights of the Child

Human Rights Watch welcomes the opportunity to provide input to the Committee on the Rights of the Child (the “Committee”) for its General Comment on the rights of adolescents. Human Rights Watch has carried out extensive research on the rights of adolescents in the areas of child labor, detention, immigration, education, early marriage, reproductive health, LGBT rights, and adolescents with disabilities. The following recommendations are based on our research findings and analysis.

A Child Rights’ Approach to Adolescence

Adolescents are approaching adulthood, yet they are children under international law. The General Comment should emphasize this basic principle and explain it further. Advances in neuroscience have confirmed that adolescents have limited comprehension of risk and consequences, and that they are sometimes unable to act with adult-like volition.[1] In particular, adolescents tend to act in concert with and be influenced by others. They are more susceptible to peer influence and more likely to engage in risky behavior with peers.[2]

A particular focus should be on issues regarding gender and sexuality, as gender identity and sexuality develop often at the onset of puberty.

Hazardous or Exploitative Labor by Adolescents

Around the world, an estimated 47 million adolescents work in hazardous conditions, according to the International Labor Organization. Human Rights Watch has documented hazardous work by adolescents in different sectors in a number of countries. Human Rights Watch research in artisanal and small-scale gold mining found adolescents work underground in unstable pits; use toxic mercury to process the gold; carry heavy loads; and use dangerous tools and machinery. In tobacco farming, adolescents are exposed to nicotine, toxic pesticides, extreme heat, sharp tools, dangerous heights, and other dangers, and sometimes suffer from symptoms that are consistent with acute nicotine poisoning.

Another area of concern is the exploitation and abuse of adolescents in employment that is otherwise legal from the age of 15. For example, adolescent girls who are employed as domestic workers often risk a range of abuses including long working hours, confinement to the workplace, sexual harassment, and limited access to redress. In the West Bank, adolescents work in agriculture in exploitative conditions that violate Isreali labor laws.

While some governments have weak laws on child labor and protecting adolescents from exploitation in the workplace, others have good laws and policies that are poorly enforced. Companies do not always have policies that prohibit hazardous child labor nor stringent due diligence procedures to avoid benefiting from child labor in their supply chains.

Human Rights Watch recommends that the General Comment call upon states to:

• Protect adolescents from hazardous child labor, by creating or enforcing labor laws that prohibit the worst forms of child labor for anyone under the age of 18.
• Protect adolescents from exploitation and abuse through robust labor laws on adolescent employment.
• Systematically enforce labor laws and inspect work places for child labor, including in the informal sector, private homes, and remote areas, and intervene as appropriate.
• Ensure adolescents who are victims of child labor or abuses in the work places have access to effective remedies including compensation to redress their exploitation.
• Ensure there are appropriate youth employment options available for adolescents between the ages of 16 and 17.
• Sanction, including through financial penalties and other types of penalties, businesses that tolerate hazardous child labor in their supply chains operating in that state.
• Require businesses to have strong, effective due diligence procedures in place that ensure that company actions do not contribute to or benefit from child labor.

Detention

Adolescents in Conflict with the Law

Adolescents, particularly those aged 16 and above, are statistically more likely than any other age group to be in conflict with the law and to be arrested and detained for alleged wrongdoing. Some states set a minimum age of criminal responsibility lower than the internationally accepted age of 12. Some states also deprive older adolescents, or those who are accused of particularly serious crimes, of the protections of the juvenile justice system, treating them as if they were adults for the purposes of trial and sentencing.

In many states, adolescents are detained in conditions that violate their rights under the Convention on the Rights of the Child. Internationally, according to Amnesty International, at least 18 individuals who were children at the time of their alleged crime have been executed since 2013, and scores more were in detention under sentence of death in Iran, Maldives, Nigeria, Pakistan, Saudi Arabia, Sri Lanka, and Yemen. In the United States, we have found that authorities make widespread use of life imprisonment without the possibility of release, with some 2,570 adolescents currently serving this sentence and more sentenced each year.

In some countries, the international prohibition on detaining children with adults is frequently violated, compromising adolescents’ safety and well-being and negatively affecting their opportunity for rehabilitation.[3] Further damaging is the penal use of solitary confinement for imprisoned adolescents, including adolescents with intellectual or psychosocial disabilities; adolescents are denied access to medical, psychological, developmental, social and rehabilitative services. Human Rights Watch found the isolation of solitary confinement causes anguish, provokes serious mental and physical health problems, and works against rehabilitation for adolescents.

In violation of international norms, adolescents are also detained for acts that are not cognizable offenses if committed by adults, such as truancy, “incorrigibility,” roaming the streets, running away from home, engaging in consensual sexual conduct, having or seeking an abortion, and even in some cases for being orphaned or abandoned.[4]

Adolescents suffer physical violence, including corporal punishment such as whipping or caning, while being held, as well as in school and work places, as a means to “discipline” them.

Human Rights Watch recommends that the General Comment call upon states to:

• Develop a range of appropriate alternatives to detention and ensure that prosecutors, judges, probation officers, and other officials are aware of and make appropriate use of these alternatives; in doing so, the General Comment will reinforce the international standard that any deprivation of liberty should only occur in exceptional cases, and for the shortest appropriate period of time.
• Reflect the current understanding of adolescent brain development in their juvenile justice frameworks as relevant both to determinations of culpability as well as to individual sentencing determinations.
• Clarify that all forms of life imprisonment, other long sentences, and sentencing frameworks that do not allow access to meaningful parole hearings shortly after sentencing and regularly thereafter are incompatible with international juvenile justice standards.
• Halt all pending executions of those who claim to be under the age of 18 at the time of the alleged crime, review all death sentences where the accused has presented evidence that they were under 18 at the time of the alleged crime, and commute all death sentences of juvenile offenders to custodial or other sentences in conformity with international juvenile justice standards (giving the benefit of the doubt to the accused where evidence of age is inconclusive).
• Ensure that judicial authorities understand and enforce the ban on the juvenile death penalty, including by providing judges and prosecutors with training on its application

Immigration Detention

Adolescents are more likely than younger children to travel without parents or caregivers to another country. Adolescent migrants face specific risks, including the risk of being treated as an adult by states that use inadequate age determination processes, and held with adults in immigration detention.[5] In addition, migrant children (including adolescents) and their families are regularly detained on the basis of their immigration status, frequently for the express purpose of deterring future irregular migration. Unaccompanied migrant children including adolescents are particularly vulnerable to abuse and exploitation.

International norms prohibits the detention of children for immigration control as well as the use of detention explicitly as a deterrent to entry for those seeking international protection.[6] The United Nations High Commissioner for Refugees has called for all appropriate “alternative care arrangements” to be considered in the case of children accompanying their migrant parents “because of the well-documented deleterious effects of detention on children’s well-being, including on their physical and mental development.” Unaccompanied migrant children should never be detained with unrelated adults even in age-disputed cases, and should be provided with guardians to ensure that their best interests are the paramount consideration in decisions affecting them.[7]

Human Rights Watch recommends that the General Comment:

• Reinforce the Committee’s conclusion that states should expeditiously and completely cease the detention of children on the basis of their immigration status.
• Call upon states to make alternative care arrangements for children accompanying their migrant parents, housing them together, and for unaccompanied migrant children, including adequate guardianship arrangements.

Education

While a great number of states party to the CRC have made primary education compulsory and available free to all, many schools continue to levy direct or indirect fees for primary education. In secondary education, schools often charge fees officially and at higher amounts. Globally, one in five adolescents is not in school. In 2012, 63 million adolescents of lower secondary school age (12-15 years) were not in school.[8] As a result of various barriers, education often progresses too slowly: in some low income countries, many adolescents are still enrolled in primary school, an age by which they should have at least completed lower secondary education.

Many adolescents face systemic, attitudinal, and financial barriers after completing primary education when they want to proceed to secondary education. In some countries, adolescents are barred from secondary education because they have failed an entrance test; for example, over 400,000 Tanzanian adolescents were barred from accessing secondary education on the basis of national tests in 2013. Adolescents with disabilities may be especially affected by unequal access to quality education and the absence of reasonable accommodation in schools, which prevents them from completing a full cycle of compulsory education at the stipulated age, and results in them falling behind or dropping out before they proceed on to secondary education. In China, Human Rights Watch found that discrimination within the education system often prevents adolescents with disabilities from developing to their fullest potential. Adolescents with disabilities are also often barred from higher education, not on the basis of their capacity but on the basis of assessments that do not accommodate their particular needs.

Adolescent girls who become pregnant while enrolled in school are often forced to leave and are barred from rejoining once they give birth. A similar fate often applies to adolescent girls who are forced to marry early. Even if they are not barred, there may be little outreach or accommodation to support them to stay in school. In some countries, school officials subject adolescent girls to pregnancy tests.

Another barrier to adolescents’ education is violence. Sexual violence and physical abuse continue to be endemic in many schools, particularly impacting adolescent girls. While all adolescent girls and boys are exposed to physical abuse, adolescents with disabilities may be at higher risk of violence in classrooms perpetrated by teachers or peers.

Human Rights Watch recommends that the General Comment:

• Emphasize to states their obligations to make secondary education available and accessible to all by removing financial, attitudinal and discriminatory barriers that exclude some adolescents from education.
• Request states to gather transparent and improved disaggregated data on numbers of adolescents (particularly by age, gender, and disability), including those belonging to marginalized groups that attend secondary and higher levels of education.
• Call on states to remove any barriers that place adolescent girls at particular disadvantage and make current discriminatory practices in schools illegal. States are obligated to abolish “virginity,” pregnancy, or similar discriminatory tests from current education policy or guidelines, and better provide menstrual hygiene management and safe sanitation in primary and secondary schools where it is lacking.
• Emphasize to states their obligations to provide persons with disabilities access to an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live.

Girls’ Rights

Child, Early, and Forced Marriage

Child, early, and forced marriage interferes with an adolescent girl’s ability to realize a wide range of rights enshrined in the CRC, including with respect to freedom from discrimination, protection from abuse and neglect, and rights to survival, health, education, and rest and leisure. According to UNICEF, more than 700 million women alive today were married before their eighteenth birthday. Human Rights Watch research on child marriage in Afghanistan, Bangladesh, Iraq, Malawi, Nigeria, South Sudan, Tanzania, and Yemen has found that child marriage typically ends a girl’s ability to continue her education, exposes her to domestic violence including marital rape, increases the risk of HIV infection, and of early childbearing with attendant health risks such as obstetric fistula. Complications from early pregnancy and childbearing are a leading cause of death of girls ages 15 – 19 in the global South, and children of young mothers also face higher mortality rates.

Human Rights Watch’s research has found that governments often fail to take adequate steps to combat child and early marriage or to coordinate a national strategy across the multiple sectors involved. These include prevention measures such as challenging social norms, establishing 18 as the minimum age of marriage, and raising awareness about the harmful consequences; investing in enrollment and retention strategies for adolescent girls in school; and integrating attention to child and early marriage in poverty-alleviation programs. Many governments have yet to implement adequate enforcement measures such as punishing officials who alter birth or marriage certificates, conducting outreach to married girls to continue their education, to access comprehensive health information and services including family planning, and to obtain legal assistance and protective services as necessary.

Human Rights Watch recommends that the General Comment call on states to:

• Establish, in consultation with children, civil society, and other relevant stakeholders, a national action plan, with a separate budget line, to combat child and early marriage with time bound and measurable goals that enhances coordination across relevant ministries including education, health, justice, finance, children, and women.
• Carry out the recommendations in the CRC’s General Comment 18 on Harmful Practices, including the establishment and implementation of a minimum legal age of marriage of 18, compulsory birth registration, awareness-raising campaigns, access to quality primary and secondary education, and protective services, including shelters and hotlines.
• Criminalize marital rape, and ensure that local officials, police, and prosecutors are trained to enforce laws on child, early, and forced marriage and gender-based violence sensitively and effectively.

Sexual and Reproductive Health

Human Rights Watch has documented a range of obstacles to sexual and reproductive health care around the world, which can often acutely affect adolescents. These include shortages of health professionals, high costs, and lack of autonomy to seek health services (especially for married girls), and lack of support and education in schools for adolescent girls with disabilities (particularly during their menstrual cycle). In addition, adolescents face community stigma relating to sexuality, criminal penalties for seeking reproductive health services (especially abortion), requirements for parental consent for access to contraceptives or legal abortions, and negative attitudes and abusive behaviors of health providers. Some countries do not have adequate grievance or redress mechanisms for abuse or negligence.

Human Rights Watch research in India, Kenya, Malawi, South Sudan, Tanzania, and Yemen has found that adolescent girls often face a lack of comprehensive and evidence-based sexuality education and information. Our work in China, Haiti, India, and Nepal has found that lack of access to clean water, sanitation facilities, information, and supplies negatively impacts adolescent girls’ menstrual hygiene management, which may in turn contribute to disruptions to school attendance or stigma. Human Rights Watch has documented the particular impact this has on adolescent girls with disabilities and their access to secondary education. For example, in Nepal, girls with disabilities often drop out of school once they reach puberty because there are no support services in schools to help them during their period. The lack of a safe space to manage menstrual hygiene impacts all girls, but the difficulty that adolescent girls with disabilities have in moving, dressing, and using the bathroom independently increases their vulnerability to intrusive personal care or abuse, thereby discouraging them from going to school.

Human Rights Watch recommends that the General Comment call on states to:

• Develop and implement a national policy and strategy on adolescent sexual and reproductive health, including a strong focus on comprehensive sexuality and reproductive health information and services, including through schools, awareness campaigns, community outreach programs, and support to service-providers. This information should be provided in accessible formats and shared with adolescents without discrimination on the basis of disability.
• Ensure that adolescent girls can make informed and autonomous decisions about their bodies and their health, including the number and spacing of children, and have access to contraception and safe abortions. States should decriminalize abortion and review legislation with a view to guaranteeing the best interests of teenage girls, and ensure that the views of the child are heard and respected in abortion decisions.
• Promote adequate menstrual hygiene management among adolescents, including through ensuring access to adequate water and sanitation facilities, including in schools, campaigns to disseminate information and dispel misconceptions and stigma, and provision of supplies among vulnerable populations. These programs should be accessible to adolescents with disabilities.
• Provide safe spaces and support services in schools to adolescent girls, particularly those with disabilities, and take measures to ensure that they do not drop out of school at the onset of puberty.

Disability Rights

Self-determination of Health

Adolescent girls with disabilities are vulnerable to forced sterilization, which can have profound physical and psychological effects. The decision to have children can be taken away from them before they reach an age when they can maturely reflect on its significance. In Australia, as in many other countries, parents of girls with disabilities, some as young as 11, can apply for court orders to allow the involuntarily sterilization of their child. However, the right of adolescent girls with disabilities to have a family should not be violated because of the inconvenience of menstrual management, the "burden" on their families and the community, or their ability to raise a child. In addition, forced sterilization can put an adolescent girl with a disability at greater risk of gender-based violence if community members realize that she cannot get pregnant.

In a recent report on people with disabilities in healthcare settings, the United Nations special rapporteur on torture recognized forced sterilization as an act of violence, a form of social control, and a violation of the right to be free from torture and other cruel and inhuman treatment. Sterilization is not a substitute for proper education about family planning, the use of reversible contraceptive measures, and support during menstruation. However, healthcare workers often do not receive adequate training on how to counsel adolescent girls with disabilities on family planning and contraceptive methods. Furthermore, adolescent girls with disabilities are often excluded from sexual health education and family planning counseling because of beliefs that they are asexual or not sexually active.

Access to Education

As mentioned above, adolescent girls with disabilities face intense hardship when trying to access secondary education due to the lack of support services in school to assist them when they are on their period.

Human Rights Watch recommends that the General Comment call on states to:

• Prevent and eliminate the practice of forced sterilization, especially on adolescent girls with disabilities. This includes creating and enforcing legal frameworks making forced sterilization illegal.
• Make sexual and reproductive health information accessible to adolescent girls with disabilities and their families, to ensure that adolescent girls with disabilities can make informed decisions, including on sterilization.
• Train health workers on how to counsel adolescent girls with disabilities on family planning and sterilization and ensure informed consent.

LGBT Rights

Legal recognition of gender identity and the best interests of the child

Many states deny transgender adolescents the possibility of legal recognition in their preferred gender. This situation exposes transgender adolescents to stigmatization, exclusion, and discrimination during some of their most important and formative years. Official recognition of one’s gender identity is required to guarantee recognition as a person before the law, which is a right in itself and a critical means for the exercise of other rights. The best interests of the child should guide decisions about legal recognition of the gender of transgender children, and, when making this determination, the child should be heard.

In the Netherlands,Human Rights Watch found that laws barring trans people from changing their gender identity, unless they have permanently altered their bodies through hormones and surgery, results in frequent public humiliation, vulnerability to discrimination, and great difficulty finding or holding a job. Human Rights Watch believes it may be in the best interest of some transgender adolescents to change their legal gender before the age of 18, and it is the state’s responsibility to ensure that they are thus not excluded from the possibility of applying for legal recognition of their gender identity.

Access to information for LGBT adolescents

The need for sexual health education and care for LGBT adolescents is immense as sexual orientation and gender identity often begin to develop strongly at the onset of puberty. Yet, there are barriers to accessing these services that include laws barring the distribution of information about “non-traditional” sexual relations to adolescents. For example, Russia’s parliament adopted a law banning the spread of “propaganda of nontraditional sexual relationships” to children, essentially prohibiting the dissemination of any positive information about LGBT issues to adolescents. LGBT adolescents are subject to disproportionate rates of bullying, as noted by UNESCO[9] and as documented by Human Rights Watch in the United States. As a result, they often experience feelings of isolation and alienation. For these individuals, pro-LGBT messages are vital to a healthy sense of self and the promotion of understanding amongst peers.

Human Rights Watch recommends that the General Comment call on states to:

• Amend gender recognition procedures that impose blanket age limitations on accessing documents in one’s preferred gender. The child’s freely expressed opinion must be given due weight, acknowledging that as children grow into adolescence and acquire capacities, they are entitled to an increasing level of responsibility for the regulation of matters affecting them.
• Repeal all laws that cast information about LGBT persons as “propaganda” or otherwise deleterious to the public and include factual and affirmative information about LGBT people in government education materials.

Human Rights Watch reports used in this submission:

Human Rights Watch, ”Toxic Toil:” Child Labor and Mercury Exposure in Tanzania’s Small-Scale Gold Mines, August 28, 2013, https://www.hrw.org/reports/2013/08/28/toxic-toil

Human Rights Watch, “Tobacco’s Hidden Children:” Hazardous Child Labor in United States Tobacco Farming, May 14, 2014, https://www.hrw.org/reports/2014/05/13/tobacco-s-hidden-children

Human Rights Watch, “Lonely Servitude:” Child Domestic Labor in Morocco, November 5, 2012, https://www.hrw.org/reports/2012/11/15/lonely-servitude

Human Rights Watch, “Workers in the Shadows:” Abuse and Exploitation of Child Domestic Workers in Indonesia, February 11, 2009, https://www.hrw.org/reports/2009/02/10/workers-shadows

Human Rights Watch, “Bottom of the Ladder:” Exploitation and Abuse of Girl Domestic Workers in Guinea, June 16, 2007, https://www.hrw.org/reports/2007/06/15/bottom-ladder

Human Rights, Watch, “Look at Us with a Merciful Eye:” Juvenile Offenders Awaiting Execution in Yemen, March 4, 2013, https://www.hrw.org/reports/2013/03/04/look-us-merciful-eye

Human Rights Watch, “Growing Up Locked Down:” Youth in Solitary Confinement in Jails and Prisons Across the United States, October 10, 2012, https://www.hrw.org/reports/2012/10/10/growing-locked-down

Human Rights Watch, “You Don’t Have Rights Here:” US Border Screenings and Returns of Central Americans to Risk of Serious Harm, October 16, 2014, https://www.hrw.org/reports/2014/10/16/you-don-t-have-rights-here-0

Human Rights Watch, “Barely Surviving:” Detention, Abuse, and Neglect of Migrant Children in Indonesia, June 24, 2013, https://www.hrw.org/reports/2013/06/23/barely-surviving

Human Rights Watch, “They Say We’re Dirty:” Denying and Education to India’s Marginalized, April 22, 2014, https://www.hrw.org/reports/2014/04/22/they-say-we-re-dirty

Human Rights Watch, “As Long as They Let Us Stay in Class:” Barriers to Education for Persons with Disabilities in China, July 15, 2013, https://www.hrw.org/reports/2013/07/15/long-they-let-us-stay-class-0

Human Rights Watch, “No Way Out:” Child Marriage and Human Rights Abuses in Tanzania, October 29, 2014, https://www.hrw.org/reports/2014/10/29/no-way-out

Human Rights Watch, “I’ve Never Experiences Happiness:” Child Marriage in Malawi, March 6, 2014, https://www.hrw.org/reports/2014/03/06/ive-never-experienced-happiness-0

Human Rights Watch, “This Old Man Can Feed Us, You Will Marry Him:” Child and Forced Marriage in South Sudan, March 7, 2013,https://www.hrw.org/reports/2013/03/07/old-man-can-feed-us-you-will-marry...

Human Rights Watch, “Futures Stolen:” Barriers to Education for Children with Disabilities in Nepal, August 24, 2011, https://www.hrw.org/reports/2011/08/24/futures-stolen

Human Rights Watch, “License to Harm:” Violence and Harassment against LGBT People and Activists in Russia, December 15, 2014, https://www.hrw.org/reports/2014/12/15/license-harm

Human Rights Watch, “Hatred in the Hallways:” Violence and Discrimination Against Lesbian, Gay, Bisexual, and Transgender Students in US Schools, May 1, 2001, https://www.hrw.org/reports/2001/05/01/hatred-hallways

Human Rights Watch, “A Violent Education:” Corporal Punishment of Children in US Public Schools, August 20, 2008, https://www.hrw.org/reports/2008/08/19/violent-education-0

Human Rights Watch, “Controlling Bodies, Denying Identities:” Human Rights Violations Against Trans People in the Netherlands, September 13, 2011, https://www.hrw.org/reports/2011/09/13/controlling-bodies-denying-identities-0