CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … The Convention offers its own conception of children’s rights. 98 If compared with the European Convention on Human Rights, the Convention deals separately with the right of the child to liberty. The construction of the provision of Article 37 of the Convention adopts the structure of the normative sentences and the deontic operators of Article 3 of the European Convention on Human Rights. This provision places an absolute prohibition without exception on torture, inhuman or degrading treatment and punishment under any circumstances. 99 The provision on the right of the child to liberty is also similar in formulation to Article 4 (1) of the European Convention, which prohibits slavery or servitude of the person. Both provisions regulate and justify the social essence of man, who Kant says lives in the realm of objectives, and his status. These examples are the most extreme ways of dealing with an individual. Under no circumstances does the Convention permit such conduct, even based on the highest social interests. Under Article 37 b) of the Convention no child is to be deprived of liberty unlawfully or arbitrarily. The language and purpose of the provision bolsters the unique nature of the right of the child to liberty in relation to the European Convention, as well as its exceptional nature. The specific nature of the Convention norm and the absolute exceptional nature of depriving a child of its personal liberty go hand in hand. 4.1 The child as the holder of the right to liberty The European Court of Human Rights accords autonomous meaning to the term minor . The Court has determined the binding standard for its use. 100 T he Convention on the Rights of the Child does not have its own international court to predetermine linguistic norms of how to uniformly use single terms. The Committee on the Rights of the Child is not a court with jurisdictions. However, the Committee does exercise interpretational powers just like every international control body and extensively the contracting states. The two human rights treaties described are at variance. The European Convention does not determine the meaning of the term child and does not set out a defining standard regarding the use of the term minor . The absence of a binding convention definition enhances the interpretational function of the Court, which has actively assumed powers and determined the standard regarding the use of the term minor . The Court has established semantic equivalence between the terms minor and child . In contrast the operative section of the Convention on the Rights of the Child begins with a synthetic definition of the term child . Article 1 of the Convention stipulates that a child means every human being below the age of eighteen years, unless under the law applicable to the child, maturity is attained earlier. 101 The introductory 98 Ibid. 99 Soering, v. the United Kingdom , judgment of 7 July 1989, paragraph 88. 100 GLÜER, K., WIKFORSS, Å., „The Normativity of Meaning and Content”, The Stanford Encyclopedia of Philosophy (Winter 2010 Edition) , ZALTA, E. N. (ed.), URL = . 101 HODGKIN, R., NEWELL, P., Implementation Handbook for the Convention on the Rights of the Child.

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