Clarion 2.1 (1)

Children are among the most vulnerable members of our society. They are used
as soldiers, subjected to abuse and trafficking, forgotten and left-behind in education
and health care, sent to foreign countries to forge a better life. While there have been
many advancements and protections built into the international order, children are
still often somewhat removed from the protection of the law, particularly as many
States defer to decisions made by parents and guardians.
But just like other vulnerable persons, children suffer from a lack of voice. The
articles in this issue primarily address how children are being protected through the
law, while identifying some of the continuing failures of the various systems.
Though the international community may try, there is no way to protect every child
from the evils of man. War, famine, poverty, technology, and disasters all contribute
to the plight of children. These articles show that we are not powerless to protect
children, though we can certainly do more.
At the same time, children are being forced to accept greater responsibility and to
take on an inordinate role in their own protection. Recent articles in the United
States discussed how migrant children represented themselves against U.S. Attorneys
in removal proceedings. Without legal background, education or capacity, these
children were called upon to participate in a life-altering process. While we must
believe that the system provides judges and advocates who are sensitive to these
issues and who are truly looking out for the best interests of each child, this is not a
given. Certainly, the example being set by the United States would be difficult to
implement in most countries, developed or otherwise, which may lead to greater
problems as countries deal with exceptionally large numbers of migrants and
refugees.
The IHRC is prioritizing the protection of vulnerable persons as one of its main
themes for the coming year. This issue of The Clarion is designed to start this
conversation and to serve as the first step in advancing this programmatic priority.
We encourage you to share this issue as far and wide as possible, to encourage
discussions and innovations, and to participate in The Clarion and the work of the
committee over the coming year.
THE CLARION
The IHRC Journal of Human Rights
from the editors

THE CLARION 2:1 2
THE CLARION
Volume Two, Issue One (Fall 2016)
Table of Contents
REDUCING THE NUMBER OF CHILDREN THAT GO MISSING AS A RESULT OF
MIGRATION AND REFUGEE FLOWS AND PUTTING IN PLACE THE MEANS TO FIND
THEM…3
Jeremy Sarkin
BUSINESS ENGAGEMENT WITH THE SUSTAINABLE DEVELOPMENT GOALS: LET’S NOT
REINVENT THE WHEEL WHEN IT COMES TO CHILD RIGHTS…7
Francis West
CHILDREN AS VICTIMS AND PARTICIPANTS IN INTERNATIONAL JUSTICE…10
Stephen Cody
CHILDREN'S RIGHTS IN A DIGITAL WORLD…11
Patrick Geary
RECOGNITION OF THE ROMA CHILD…14
Yvonne O’Sullivan & Miranda Wolford
INCLUSIVE EDUCATION AS THE KEY TO NONDISCRIMINATION FOR CHILDREN WITH
DISABILITIES…17
Carly Mara Toepke
CHILD SOLDIERING IN MYANMAR: THE URGENCY TO IMPROVE LOCAL REMEDIES…19
Raman Maroz
WHEN SURROGACY FAILS: REDRESS FOR ABANDONED CHILDREN FOUND IN
INTERNATIONAL CHILD RIGHTS LAWS…22
Tschika McBean
CHILDREN IN HUMANITARIAN CRISES: WHAT BUSINESS CAN DO:
THE DEVELOPMENT OF UNICEF AND UN GLOBAL COMPACT (UNGC) GUIDANCE…24
Michela Cocchi
In Memoriam…28 2016-2017 Committee Leadership…5
IHRC 2016-2017 Programmatic Priorities…21

REDUCING THE NUMBER OF
CHILDREN THAT GO MISSING AS A
RESULT OF MIGRATION AND
REFUGEE FLOWS AND PUTTING IN
PLACE THE MEANS TO FIND THEM
Professor Jeremy Sarkin*

he issue of missing children: those who
cannot be found as a result of conflict,
migration, human rights violations,1
trafficking, organized crime, disasters, etc.,
is a matter of profound concern, but a matter that is
not really on the international agenda. The topic has
recently come to international attention, after it was
discovered that thousands of migrating children have
gone missing after they arrived in Europe. This
reality has not taken sufficient account of the fact that
tens of thousands of children possibly go missing en
route to Europe. However, it is important to note that
the issue of people going missing is not an issue
exclusive to migration: children go missing for a
variety of reasons. Many children go missing
voluntarily, (in the United States, for example,
700,000 people go missing every year and over half
of the 85,000 people missing at any one time are
under the age of twenty-one)2
as a result of problems
that they have, often at home, but then most of the
time this remains a domestic problem, as most of
these children do not cross international borders. It is
the involuntary cases of children going missing that
can have international consequences, when they are
trafficked, if they are abducted and used as child
soldiers, or taken for other criminal purposes. The
numbers of missing persons every year is staggering.
Millions of persons have gone missing for a variety
of reasons relating to wars, disasters, enforced
disappearances, human trafficking, and organized

*
The author is Professor of Law at the University of South
Africa. He is a former Chairperson-Rapporteur of the
United Nations Working Group on Enforced or
Involuntary Disappearances. He can be reached at
JSarkin@post.harvard.edu.
1
J Sarkin, “Putting in Place Processes and Mechanisms to
Prevent and Eradicate Enforced Disappearances Around
the World” 38 (2013) South African Yearbook of
International Law 20-48.
2
J Sarkin, “The Need to Deal with All Missing Persons
Including Those Missing As a Result of Armed Conflict,
crime, just to name a few. The world still does not
have the legal frameworks or processes to
successfully locate these people.
This article, however, focuses on children
who go missing as a result of migration and refugee
flows, an issue that has only recently been
recognized, although it is a problem that has existed
for a long time. This issue has garnered some
international attention because there are now
processes to begin tracking and collecting data on
migrants, and to some extent, those who go missing.
However, structures for collecting data on missing
migrants have been provided only for only for parts
of Europe. Until recently, this was not the case in any
country or part of the world. It is likely the massive
increase in the flow of refugees and migrants into
Europe, which is the impetus behind the greater
attention being focused on this issue. However, this
is not solely a European problem and the issue of
missing people is not only an issue concerning
migration. In a range of issues, and in all places
around the globe, steps need to be taken to deal with
the extensive problems that exist concerning missing
people.
As far as people going missing in Europe is
concerned, the refugee and migration crisis saw more
than 1.4 million people navigate their way to Europe
in 2015. At least 3,770 persons people drowned in
the Mediterranean that year trying to reach Europe.
In fact, the International Organization for Migration
(IOM) conservatively estimates that at least 60,000
migrants/refugees died on migration routes between
1996 and 2016.3
This number is recognized by the
IOM as a conservative estimate. This is because there
is either no data, or the data is incomplete. The
number of people who died or went missing (some
of whom died or who are somewhere, often against
their will) is actually far higher. While the numbers
of people known to have died is high, a great deal of
Disasters, Migration, Human Trafficking, and Human
Rights Violations (including Enforced Disappearances) in
International and Domestic Law and Processes” in
2015(1) Inter-American and European Human Rights
Journal 112-142.
3
Brian, T. and Laczko, F. 2016. “Introduction: Migrant
deaths around the world in 2015. In Fatal Journeys Vol 2:
Identification and Tracing of Dead and Missing Migrants.
International Organization for Migration, Geneva.
T

THE CLARION 2:1 3
uncertainty exists about how many people go
missing while migrating. People go missing on the
migration route for numerous reasons, including
crime and ill health. Many people who go missing
are not reported as missing for a variety of reasons,
including the fact that they have left their countries
of origin and their families do not know that they are
missing. Often, even if their families want to report
them as missing, they have nowhere to make such a
report. In many countries, the police are loath to take
such reports believing that such people have
migrated and will eventually turn up somewhere.
However, often, family members do not report a
loved one as missing as they do not want to bring
attention to the person missing’s circumstances.
Many, however, believe that it is pointless to make
such a missing person report, even if they believe it
is possible, since they are convinced that the
authorities are not likely to act to find the person.
The numbers of missing are very high, but
how high is only a matter of speculation. It is difficult
to come to any definite determinations of what the
real numbers are for many reasons. Because the
people going missing are travelling in secret, and
little is known about them, and their circumstances,
this makes the problem less visible. While some
bodies may be found, often they cannot be identified,
as many migrants and refugees often do not carry
documentation. However, IOM notes that
“[c]ountless bodies are never found, countless
missing persons are never reported; fatal journeys
lost from all record.” Because data is so lacking, the
IOM in 2013 established the Missing Migrants
Project. It is designed to track deaths around the
world during migration and, it maintains a publicly
accessible online database. While aiming to be as
comprehensive as possible, data, particularly in some
regions, are severely lacking and figures contained in
the database are minimum numbers and far from
complete for some regions.
How many children go missing is specifically
unknown. However, children do not only go missing
while migrating into Europe but they have gone
missing once they have arrived in Europe. Again the

4
Unicef, Danger Every Step of the Way, released today,
14 June 2016
5
https://www.unodc.org/unodc/en/press/releases/2016/Fe
bruary/unodc-chief-describes-risk-of-10-000-missing-
migrant-children-as-unacceptable.html [2016, June 20].
numbers are enormous. What is known is that about
406, 000 children travelled to Europe in 2015. The
United Nations Children's Fund (UNICEF) estimates
that nearly 100,000 unaccompanied children, or
children separated from their families, sought asylum
in Europe in 2015. However, these numbers will be
larger in 2016. Already, ninety percent of refugee
and migrant children landing in Europe through Italy
in 2016 are unaccompanied.4
Since children
travelling unaccompanied are extremely vulnerable
to kidnapping and other forms of child abduction, the
number of children successfully completing their
travels is unknown. They are often sexually abused
and exploited because of their dependency on
smugglers. They face detention, rape and other
sexual violations, forced labor, forced prostitution,
assaults and other violations, or even death. In this
regard, the Organization for Security and
Cooperation in Europe (OSCE), has noted that:
“Unaccompanied minors from regions of conflict are
by far the most vulnerable population; those without
parental care that have either been sent by their
families to get into Europe first and then get the
family over, or have fled with other family
members.” What is known is that at least 15,000
children went missing subsequent to their arrival in
Europe in 2015.5
In April 2016 the German Minister
of the Interior admitted that almost 6,000 refugee
children were reported missing in 2015 in Germany
alone.6
He conceded that the number of missing
children that had been reported to be missing might
be underestimated. Most of these children come from
Syria, Afghanistan, Eritrea, Morocco, and Algeria. It
is believed that human traffickers and other criminals
are preying upon these children. It is also believed
that 5,000 children had disappeared in Italy and
1,000 were unaccounted for in Sweden.7
The exact
number of children who go missing after they arrive
in Europe remains unknown “because rudimentary
and overwhelmed registration systems mean Europe
does not have a clear picture of the number of
children arriving on its shores, or close tracking of
6
http://www.thelocal.de/20160411/nearly-6000-refugee-
children-missing-in-germany
7
https://www.theguardian.com/world/2016/jan/30/fears-
for-missing-child-refugees

THE CLARION 2:1 4
their onward route.”8
However, fear remains a major
problem. Migrants fear registration, they fear
becoming known, they fear the consequences of
being visible, preferring to blend into their new
surroundings. This has massive consequences for
them as crime reporting by them remains low, and
when children or others go missing relatives often
prefer to think that the person has gone somewhere
voluntarily. Thus, migrants’ fears have huge
implications for their safety and the possibility for
them to get assistance when they need it. UNICEF
has in this regard, noted that: “The thing is, they are
invisible, that’s the very reason why [they are
vulnerable] – if children aren’t counted, they don’t
count.”9
Vulnerability is such a problem that a
number of members of the European Parliament
warned their governments that young refugees were
so unprotected that they were “in danger of falling
victim to pan-European bands of criminals who
could exploit them for prostitution, slavery, or
trafficking in drugs or human organs.”
Part of the problem is that the supposed need
for secrecy by those doing the migration undermines
their ability to be secure and safe. Much more needs
to be done to change those perceptions. Part of the
problem can be addressed by making migrants feel
more welcomed, and that their needs will be
addressed without a focus on their undocumented
status or other issues relating to their migrant status.
Much more needs to be done to protect migrant
children not only on the migration route to Europe,
but also those that have arrived in Europe and are still
at risk. However, this is far from being only a
European problem. To begin to deal with the
problem, it is crucial that migrants and refugees are
assured that they would not be caught and deported
to their countries of origin but that both transition and
receiving countries will provide them with security.
Officials in various state agencies, particularly those
who provide protection and assistance, need to be
more forthcoming and more hospitable to those in
need. At present, a climate of fear leads to

8
https://www.theguardian.com/world/2016/apr/12/almost
-6000-refugee-children-missing-last-year-germany
9
https://www.theguardian.com/world/2016/apr/12/almost
-6000-refugee-children-missing-last-year-germany
10
UNICEF, Danger every step of the way A harrowing
journey to Europe for refugee and migrant children
apprehension by those who may seek state
assistance. In addition, asylum processes are
stretched to breaking points, are complex, and take a
long time for those seeking assylum. Children who
ought to be provided shelter are kept in detention
because of a lack of places of safety for them.
Children are often seperated from their families for
long periods of time. These problems ensure that
many unaccompanied children avoid registeration or
run away.10
This increases their vulnerability. Thus,
often when migrant or refugee children need
assistance they do not seek such help, out of fear of
the ramifications of such a course of action.
However, their avoidance of the system increases
their vulnerability and the risk of them going
missing.
Much therefore needs to change. The police
need to specifically focus on the needs of migrants
and refugees and purposefully reach out to these
communities. Doing so will help to build bridges and
reduce the tensions that exist. This is especially
needed amongst the more vulnerable in such groups,
especially women and children.11
Particularly, when
they are alone or unaccompanied. For this to happen
the police and other state officials need to be
sensitized and trained to be more accommodating.
Much more also ought to be done to make the
migration process easier and safer. A human rights
approach demands that more needs to be done to
provide shelter and other basic necessities to those
who are migrating. This is especially true for
children, particularly when they are unaccompanied
or separated from their families. More checks ought
to be made to prevent trafficking of children, and to
prevent children from being easy victims of crime.
There are many issues that need to be tackled to
prevent more children from going missing.
Crucially, much more needs to be done to set up
processes to help those who go missing and their
families. More needs to be done to be able to identify
11
On the vulnerability of migrants trying to get to the
USA to criminals, see P. Villegas, “Stowaways Are
Stranded in Mexico by Train Ban”, NY Times, 10 May
2014,
<www.nytimes.com/2014/05/11/world/americas/stowaw
ays-are-stranded-in-mexico-by-train-
ban.html?hp&_r=0>.

THE CLARION 2:1 5
those people whose bodies are found. According to
UNICEF, there are 65 million children on the move
at present.12
Despite this, and the problems
concerning missing children, the only reference to
them in UNICEF’s 2016 Annual Report on the State
of the World’s Children 2016 was a reference to the
still missing Chibok girls of Nigeria. Much more
attention needs to be focused by many more agencies
on the problem. The world is in greater turmoil than
in recent years. More children and their families will
want to relocate and will be vulnerable while doing
so. More needs to be done to ensure that they do not
go missing, and if they do there are mechanisms in
place to look for them. More needs to be done at the
international level to establish laws, mechanisms and
processes to deal with missing persons in general,
and to ensure that data is collected and information
coordinated.
k

12
http://www.unicef.org/media/media_90760.html
INTERNATIONAL HUMAN RIGHTS COMMITTEE
2016-2017 Leadership Roster

Luke Wilson
Jimena Conde
Committee Chairs
Tammie Smith-Long
Immediate Past Chair
[
Gig Nikpour
Stephanie Snow
Communications Vice-Chairs
Daniel Appelman
Sara Elizabeth Blackwell
Policy & Special Projects Vice-Chairs
Eva Nudd
Catherine Vernon (Diversity Lead)
Programs Vice-Chairs
Will Pons
David Taylor
Rule of Law Vice-Chairs
John Mbaku
Michelle Curtis
Cindy Buys (Year-in-Review Lead)
Publications Vice-Chairs
Ayesha Khan
Justy Erhabor
Catherine Vernon (Diversity Lead)
Membership Vice-Chairs
Robert Lutz
Cara Lee Neville
Elizabeth Turchi
Senior Advisors

THE CLARION 2:1 6
THE CLARION: FUTURE THEMES AND DEADLINES
The Clarion is pleased to announce the following themes for Volume 2 (ABA Year 2016-
2017):
Volume 2, Issue 2: Human Rights in the United States (End 2016)
-Deadline for submission of abstract: October 6, 2016
-Articles & Publication Agreements due: October 20, 2016
-Tentative Publication Date: October 31, 2016
Volume 2, Issue 3: The Human Right to Water (Early 2017)
-Deadline for submission of abstract: January 10, 2017
-Articles and Publication Agreements due: January 30, 2017
-Tentative Publication Date: March 1, 2017
Volume 2, Issue 4: Disabilities and Human Rights (Spring 2017)
-Deadline for submission of abstract (provisional): March 16, 2017
Volume 2, Issue 5: Human Rights Focus: Africa (Early Summer 2017)
-Deadlines for submission of abstract (provisional): May 1, 2017
If you are interested in writing an article on one or more of these themes, please email
the Publications Vice-Chairs and IHRCpubs@gmail.com by the listed deadline. Please
share these topics and any calls for submissions with friends, colleagues, students, and
others—even those outside of the legal field. The Clarion seeks diverse voices and
opinions that elucidate human rights issues from a variety of angles. Publications Vice-
Chairs will also be soliciting submissions, and would appreciate any recommendations for
potential authors, particularly from countries underrepresented in the ABA.
Submission of an abstract and acceptance of an article proposal does not guarantee
publication. Publication is subject to quality, content and space requirements for each
issue.

THE CLARION 2:1 7
BUSINESS ENGAGEMENT WITH THE
SUSTAINABLE DEVELOPMENT
GOALS: LET’S NOT REINVENT THE
WHEEL WHEN IT COMES TO CHILD
RIGHTS
Francis West*
n mid-July, the UN High-level Political Forum
on Sustainable Development met for the first
time to assess progress against the 169 targets of
the ambitious Sustainable Development Goals
(SDGs).13
The Forum marks the latest political
gathering on these Global Goals, which took more
than 3 years of international wrangling over goals,
targets and indicators to negotiate. Throughout this
process, a consensus endured that the skills, expertise
and resources of the business community are crucial
to the delivery of the SDGs, which include key child
rights challenges such as ending abuse, exploitation,
trafficking and all forms of violence against children.
However, when it comes to articulating how
businesses, and in particular global value chains, can
be harnessed to achieve these goals, there is much
less clarity on the most effective way forward. This
much is obvious from a recent PWC survey, which
found that while an impressive 71% of businesses

*
Francis West is the Head of Private Sector Policy &
Advocacy at Unicef UK. He holds an MSc in
International Development & Security from the
University of Bristol and a BA (Hons) International
History from London School of Economics and Political
Science.
13
United Nations General Assembly, Transforming our
world: the 2030 Agenda for
Sustainable Development, (25 September, 2015).
Available at
http://www.un.org/ga/search/view_doc.asp?symbol=A/R
ES/70/1&Lang=E [Accessed 18/07/16]
14
PWC, Make it your business: Engaging with the
Sustainable Development Goals, (2015). Available at
https://www.pwc.com/gx/en/sustainability/SDG/SDG%2
0Research_FINAL.pdf [Accessed 14/07/16]
15
United Nations Office of the High Commissioner on
Human Rights, Guiding Principles on Business and
Human Rights (16 June, 2011) Available at
http://www.ohchr.org/Documents/Publications/GuidingP
rinciplesBusinessHR_EN.pdf [Accessed 18/07/16]
surveyed are planning how to respond to the SDGs,
only a modest 13% have identified the tools needed
to do so.14
This uncertainty around implementation
represents the biggest opportunity to scale action on
business and child rights since the UN Guiding
Principles on Business and Human Rights (UNGPs)
were unanimously endorsed by the UN Human
Rights Council in 2011.15
Equally, the SDGs pose a risk to progress on
business and child rights. As Professor John Ruggie,
the former UN Secretary-General's Special
Representative for Business and Human Rights, has
articulated, the sheer number of SDG targets could
encourage an outmoded approach to corporate
responsibility, where companies select less
challenging actions and claim a significant
contribution to the Goals.16
This is not to suggest that
businesses should address all goals, but instead they
should prioritize action according to the salience of
the impacts of their business on people.17
The
UNGPs enshrine this move away from the notion of
‘materiality’ common to traditional corporate
sustainability processes, whereby impact on the
business is the primary concern of environmental,
social and governance risk assessments. Instead, the
UNGPs’ due diligence process of identifying,
preventing, mitigating and accounting for impacts on
human and child rights across business operations
and supply chains should result in a tangible action
16
John Ruggie, Chair of Shift, Berthold Beitz Professor in
Human Rights and International Affairs, Harvard
Kennedy School, Former Special Representative of the
UN Secretary-General on Business and Human Rights,
Letter to Global Commission on Business and Sustainable
Development (18 February, 2016). Available at
http://www.shiftproject.org/news/john-ruggie-
sustainable-development-goals-and-un-guiding-
principles [Accessed 18/07/16]; For an example of
consultancies continuing to urge businesses to prioritise
SDG Goals that are strategic to their business rather than
those on which the business has most impact see:
http://www.responsiblebusiness.com/blog/a-first-look-
at-how-companies-are-responding-to-the-sdgs
17
Richard Karmel, How companies should report on the
United Nations Guiding Principles (25 November, 2014).
Available at http://www.richardkarmel.co.uk/how-
companies-should-report-on-the-united-nations-guiding-
principles-by-richard-karmel/ [Accessed 18/07/16]
I

THE CLARION 2:1 8
plan for a business, which can then be cross-
referenced with SDG targets.
This process may not always present a win-
win scenario for a business, but it will deliver the
greatest social impact. Take, for example, the case of
a European-based tour operator providing
‘volunteer’ opportunities in orphanages in South
East Asia. Unintentionally, the business may be
adversely impacting on children’s rights. It has been
estimated that up to 85% of children residing at
orphanages in Nepal have at least one living parent.
In some cases children are deliberately separated
from their families and placed in orphanages so they
can be used to attract fee-paying volunteers and
donors.18
What’s more, while orphanage volunteers
are generally well-intentioned, they often do not
realize that volunteering for short periods of time
without appropriate skills and training could
contribute to a repeated sense of abandonment felt by
already vulnerable children. In addition, when
background checks are not conducted on volunteers,
children may be at risk of sexual abuse. Prohibiting
this type of ‘voluntourism’ or significantly reducing
the number of travelers participating in these
activities would clearly reduce business. It would,
however, be in the best interests of the children
involved.
A child-rights-based approach to private
sector engagement in the SDGs does not equate to a
blanket rejection of a business case for the corporate
contribution to the Goals and can be congruent with
the popular assertion that ‘enlightened self-interest
[amongst businesses] focused on the SDGs could
generate tangible results.’19
However, some
proponents of the ‘business case’ are guilty of
reductionism when they focus on profit-seeking with

18
Unicef Nepal, Orphanage Voluntourism In Nepal:
What You Should Know. Available at
http://unicef.org.np/blogs/2015/05/10/orphanage-
voluntourism-in-nepal-what-you-should-know [Accessed
18/07/16]
19
20
a social purpose as the silver bullet for the business
contribution to the Goals. One prominent
consultancy, advising clients on the SDGs, has posed
the question, ‘Should we question the motives of
business if their activity and ingenuity works to the
benefit of society?’20
The answer of course is that not
all activity does work in this way. An approach that
relies on the traditional concept of materiality
obscures the fact that there can be clear financial
interests in overlooking child and human rights
violations. This is evident from the ILO’s assessment
that forced labor (including child labor) in the private
economy generates US$ 150 billion in illegal profits
per year.21
Recognizing that business can have both
positive and negative impacts on child rights, both
carrots and sticks are fundamental to effectively
harnessing the power of the private sector for the
SDGs. In some contexts, regulation will be needed to
drive up standards amongst poor performers and
ensure that there is a level playing field for those
businesses acting in ‘enlightened self-interest’. Here
again, the UNGPs pave the way with their emphasis
on a ‘smart mix’ of mandatory and voluntary
measures.22
An innovative approach to public
procurement would be foremost amongst the levers
that Governments could employ in pursuit of SDG
progress. The Committee on the Rights of the Child
is clear that States should reflect the expectation on
businesses to carry out due diligence in their own
practices as buyers of goods and services.23
The
SDGs offer a further opportunity in this regard.
Target 12.7 aims to ‘promote public procurement
practices that are sustainable.’24
Governments buy a
huge amount of goods and services from business
21
ILO News, ILO says forced labour generates annual
profits of US$ 150 billion (20 May, 2014) Available at
http://www.ilo.org/global/about-the-
ilo/newsroom/news/WCMS_243201/lang--en/index.htm
[Accessed 18/07/16]
22
United Nations Office of the High Commissioner on
Human Rights, Guiding Principles
23
Committee on the Rights of the Child, General
Comment No. 16: On State obligations regarding the
impact of the business sector on children's rights (15
March, 2013). Available at
http://www.unicef.org/csr/css/CRC_GC16_LAYOUT_E
NGLISH.pdf [Accessed 18/07/16]
24
UNGA, Transforming our World

THE CLARION 2:1 9
and they could do much more to use this purchasing
power to scale up socially responsible business
practice. In the UK alone, £45 billion worth of
contracts are awarded to private firms each year –
around three per cent of the UK's GDP.25
Directing
this capital only towards companies that are
undertaking effective human and child rights due
diligence would realize Government’s commitments
under both UN Guiding Principle 6 and SDG target
12.7.
The scale of the challenge implied by the
SDGs is profound. It is estimated that over 600
million new jobs need to be created by 2030, just to
keep pace with the growth of the global working-age
population.26
However, conditions must also
improve for the 780 million women and men who are
working but not earning enough to lift themselves
and their families out of USD 2 a-day poverty.27
When workers don’t earn a living wage – enough to
cover their own basic needs and that of their families
– the consequences for children can be devastating.
They may miss out on education, medical treatment
or nutritious meals and can, in some cases, contribute
to children looking for ways to support family
income. That means businesses and Governments
must engage with the challenge of wages in supply
chains – an issue that unlocks numerous other child-
related SDG targets from nutrition to health – in a
much more collaborative and committed way than
before.
In instances where a Government’s failure to
realize its responsibility as a duty-bearer for human
rights means that companies cannot act unilaterally,
collaborative advocacy with competitors can
enhance social impact. A good example of this is
when H&M and other major retailers lobbied the
Cambodian government to raise wages in the
garment sector.28
Much has been made of the need

25
UK Government Office for Science, What role does
Government procurement play in manufacturing in the
UK and internationally and how might this change in the
future? (October 2013) Available at
https://www.gov.uk/government/uploads/system/uploads
/attachment_data/file/283898/ep24-government-
procurement-manufacturing.pdf [Accessed 18/07/16]
26
Stephen Pursey, Director, ILO Multilateral Cooperation
Department, Opening Remarks at the GMG-OECD Side
Event to the Third International Conference on Financing
for Development (14 July, 2015) Available at
for cross sector partnerships (the creation of which
hits various targets under Goal 17) in the SDGs.
Perhaps partnerships advocating for regulation to
raise standards around some of the most intractable
rights issues in global supply chains suggest that
businesses have a role in shaping the enabling
environment for the better.
It is difficult to overstate the importance that
these two processes – the UN Guiding Principles and
the Sustainable Development Goals – succeed. As
businesses start to consider their approach to the
marketing-friendly SDGs, existing standards such as
the UN Guiding Principles should remain the entry
point. It is worth remembering that while there are 17
SDGs that took 3 years to establish, there are 31
Guiding Principles that took 6 years to agree. This
hard work and consensus about the role of business
in delivering social value needs to be harnessed in the
Global Goals for either process to succeed.
k
http://www.ilo.org/global/topics/sdg-2030/3-
fdd/WCMS_383362/lang--en/index.htm [Accessed
18/07/16]
27
Stephen Pursey, Opening Remarks.
28
Miles Brignall, ‘Fashion retailers agree to raise
minimum wage in Cambodia’, The Guardian (21
September 2014) Available at
https://www.theguardian.com/business/2014/sep/21/fash
ion-retailers-offer-raise-minimum-wage-cambodia
[Accessed 18/07/15]

THE CLARION 2:1 10
CHILDREN AS VICTIMS AND
PARTICIPANTS IN INTERNATIONAL
JUSTICE
Stephen Cody*

nternational Criminal Court (ICC) Chief
Prosecutor Fatou Bensouda is tasked with the
investigation of grave international crimes. This
means she is duty-bound to track down and prosecute
those most responsible for atrocities – war crimes,
crimes against humanity, and genocide – when
national courts are unable or unwilling to do so. It’s
a challenging job, complicated by burgeoning
caseloads and meager budget growth.
Bensouda must also navigate the gale-force
political winds of international justice. Diplomats
and donors demand streamlined investigations and
prosecutions, improved monitoring and evaluation,
and greater administrative efficiency. At the same
time, communities affected by mass violence cry out
for far-reaching prosecutions, robust outreach,
expansive victim services, and swift reparations. In
this stormy environment, one might expect Bensouda
single-mindedly pursue legal accountability and
retributive justice. But to her credit, she has opted
instead to embrace the court’s reparative mandate
and place new emphasis on the care and support of
vulnerable victims, especially children.
In November 2016, Bensouda’s Office of the
Prosecutor is set to release a Policy on Children,
which will for the first time establish a regulatory
framework for engaging children in ICC
investigations and prosecutions. Spearheaded by
Georgia Law Professor Diane Marie Amann, who
Bensouda appointed Special Adviser on Children,
the document will address the distinct needs of
children in international criminal trials. More
specifically, the policy will advocate a “child-
sensitive approach” and recognize children as

*
Stephen Smith Cody is a Visiting Assistant Professor at
University of the Pacific, McGeorge School of law.
Formerly, he directed the Atrocity Response Program at
the Human Rights Center at Berkeley Law. Cody holds a
Ph.D. in sociology from the University of California,
Berkeley, a J.D. from Berkeley Law, and an M.Phil. in
social anthropology from Cambridge University. His
recent empirical research focuses on victim participation
dynamic individuals who, depending on context,
may be both naive and savvy, beneficiaries and
agents, defenseless and indomitable.
Historically, international institutions have
too often treated children in post-conflict settings as
passive bodies in need of protection, not as active
participants in social reconstruction. In Nuremberg
and the Tokyo international military tribunals, for
example, crimes against children were grouped with
other crimes against civilians. Trials at the ad hoc
tribunals for Rwanda or the former Yugoslavia also
largely failed to acknowledge the unique challenges
of children. International law recognizes the need to
create special protections for children, 29
and the
Convention on the Rights of the Child (CRC) 30
requires signatories to safeguard children’s civil,
political, economic, social and cultural rights.
However, international criminal law has only
recently begun to grapple with difficult questions
about child consent, justice for children, and the
psychosocial impact of atrocity-crime prosecutions.
The new ICC Policy on Children advances core
principles expressed in the Convention on the Rights
of the Child. These include the right to have the
child’s best interests taken into account and the
child’s right to express views and have them
considered. The policy also accepts the added
responsibility to shelter children from further harm.
It will mark a transition from a unitary focus on
children who bear arms to those who suffer the
effects of violence. It might also trigger more debate
on what constitutes culturally appropriate or gender
sensitive care for child participants.
International criminal justice depends on
children. They serve as vital informants at the
investigation phase and can even appear as key
witnesses during trials. They need special protection.
ICC Chief Prosecutor Bensouda’s agenda to
recognize the rights of children in international
criminal justice and construct a framework for their
protection and participation warrants
in the International Criminal Court. Cody has interviewed
more than 300 victim participants at the International
Criminal Court, including many child soldiers.
29
See Stuart Beresford, “Child Wintesses and the
International Criminal Justice System” 3(3) Journal of
International Criminal Justice, 726-732 (2005).
30
See the Convention on the Rights of the Child, Article
2-3.
I

THE CLARION 2:1 11
acknowledgement and holds promise for the future.
Challenges lie ahead, but the ICC Policy on Children
begins to transform children from passive trial
spectators to meaningful participants in international
criminal proceeding.
k
CHILDREN'S RIGHTS IN A DIGITAL
WORLD
Patrick Geary*
cross the globe, more children in more
places are spending more time, in more
ways, online. In the United States alone,
70% of children up to the age of eight already use the
Internet on a daily basis31
, and similar figures from

*
Patrick Geary is a Children's Rights & Business
Specialist with UNICEF Headquarters in Geneva, where
he focuses on legal and public policy advocacy. He has
been an international children’s rights advocate for
over a decade, and has worked for and with a wide range
of civil society organizations. He is a qualified lawyer
and a published legal scholar, and previously
worked in private practice. Any opinions expressed in this
article are those of the author and editor and do not
necessarily reflect the policies or views of UNICEF. The
author wishes to thank Carly Nyst for her insight and
sound research contributions.
31
Gutnick AL et al. (2011) Always Connected: The New
Digital Media Habits of Young Children. New York: The
Joan Ganz Cooney Center at Sesame Workshop.
Available
at
http://www.joanganzcooneycenter.org/publication/alway
s-connected-the-new-digital-media-habits-of-young-
children [accessed 17 January 2016].
32
Holloway D et al. (2013) Zero to Eight. Young Children
and their Internet Use. London: LSE. Available at
http://eprints.lse.ac.uk/52630/1/Zero_to_eight.pdf
[accessed 17 January 2016]
33
Popovac M and Leoschut L (2012) Cyber bullying in
South Africa: Impact and responses. Centre for Justice
and Crime Prevention Issue Paper No. 13. Available at
http://www.lse.ac.uk/media@lse/research/Research-
Projects/Researching-Childrens-Rights/pdf/Issue-Paper-
13---Cyberbullying-in-SA---Impact-and-Responses.pdf
Europe show that up to 78% of toddlers in some
countries are connected.32
Nearly three-quarters of
children in South Africa have access to the Internet
at home or school33
, and it is now estimated that one
of every three Internet users in the developing world
is a child aged under 18.34
Children increasingly go
online to watch, listen, read, study, communicate and
socialize35
, and many will learn how to play an online
game before they learn how to tie their shoes.36
Indeed, for better or for worse, it has become
apparent that technology and the Internet are forever
changing how children grow and develop as rights-
holders.
While digital media have the potential to
impact all aspects of children’s lives, the policy
debate thus far has been largely centered on the
threats that children face online. Such a focus is
essential, as children have a recognized international
right to be protected from all forms of violence.37
This right applies equally offline and online38
, and it
is our shared societal responsibility to ensure that
[accessed 17 January 2016].
34
See, e.g., Livingstone S et al. (2015) One in Three:
Internet Governance and Children's Rights. Global
Commission on Internet Governance Paper Series, No.
22. Available at
https://www.cigionline.org/publications/one-three-
internet-governance-and-childrens-rights [accessed 16
January 2016].
35
EU Kids Online (2014) EU Kids Online: Findings,
Methods, Recommendations. London: LSE. Available at
http://eprints.lse.ac.uk/60512/ [accessed 17 January
2016].
36
Rachel Post, Friend or Foe? The rise of online
advertising aimed at kids, Guardian (Feb. 28, 2014)
https://www.theguardian.com/sustainable-
business/digital-online-advertising-children-privacy
37
UN Convention on the Rights of the Child, Art. 19
(“States Parties shall take all appropriate legislative,
administrative, social and educational measures to protect
the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse...”).
38
See UN Committee on the Rights of the Child, Report
of the 2014 Day of General Discussion: “Digital media
and children’s rights”, available at
http://www.ohchr.org/Documents/HRBodies/CRC/Discu
ssions/2014/DGD_report.pdf.
A

THE CLARION 2:1 12
children can use the Internet safely. This includes
protecting children from harm at the hands of adults,
which manifests in its worst forms as sexual abuse
and exploitation, and teaching children the
importance of digital citizenship to combat peer-to-
peer violence like cyberbullying.
An exclusively protectionist approach,
however, risks overlooking the bigger picture about
how children exercise their rights in a digital world.
As protection-based responses like website blocking
and online filtering have clear and direct impacts on
how children use the Internet, it becomes more
important to understand and explore children’s full
range of rights as active users of information and
communications technology. Adopting a broader
perspective reveals apparent tensions between child
protection and children’s participation in digital life,
and this article seeks to expand the discussion
through exploring three particularly relevant themes
in greater detail: (i) Privacy and data protection, (ii)
Freedom of expression and access to information,
and (iii) Non-discrimination and education.
Privacy and data protection
While children enjoy an established right to privacy
under international law39
, the implications of
children’s privacy in a digital context have yet to be
fully appreciated. In some ways, the Internet
promises children increased privacy through
independent access to technology. Online services
offer a chance to connect with peers outside strict
adult supervision and present an opportunity to
research and ask questions without fear or
embarrassment. At the same time, going online puts
children’s privacy at greater risk of intrusion given
the extent of digital tracking and supervision.
Government authorities may be monitoring
children’s communications and browsing behavior;
businesses may be collecting children’s data for
advertising and other commercial purposes; and

39
UN Convention on the Rights of the Child, Article 16
(“No child shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, or
correspondence, nor to unlawful attacks on his or her
honour and reputation.”)
40
UN Convention on the Rights of the Child, Articles 13
(“1. The child shall have the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
parents may be publicly sharing children’s images
and information through their own social media
networks.
There are in many cases valid reasons for
interfering with children’s online activities. The right
to privacy is not absolute, and it may well not be in
children’s best interests to have unfettered,
unsupervised access to the Internet from an early age.
Yet the same measures taken to prevent online abuse
and exploitation, where not carefully crafted, may
encourage greater surveillance of the Internet,
incentivize the wider collection and retention of data,
grant authorities sweeping access to personal
information, and place unrealistic expectations on
parents and educators to police children’s online
behavior. These intrusions must be carefully
balanced against children’s expectations of privacy;
in line with their evolving capacities, children should
be granted greater autonomy and control over their
behavior online as they mature into responsible
digital citizens.
Freedom of expression and access to information
Freedom of expression and the right to information
form the cornerstone of children’s civil rights40
, and
as search engines replace school libraries and
conversations move from classrooms to chat rooms,
children are becoming increasingly reliant on
technology to form and share their views. The
Internet gives children nearly immediate access to
voluminous quantities of richly informative content,
and provides children with linkages to expansive
digital platforms where they can make their voices
heard the world over. With the growing array of
opportunities that digital media present for civic
engagement, going online can offer children a
uniquely participatory pathway to empowerment.
Alongside children’s free expression and
pursuit of information exists a responsibility to
protect children from harmful content and behavior.
regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of the child's
choice.”), 17(“States Parties recognize the important
function performed by the mass media and shall ensure
that the child has access to information and material from
a diversity of national and international sources,
especially those aimed at the promotion of his or her
social, spiritual and moral well-being and physical and
mental health.”).

THE CLARION 2:1 13
Questions arise, however, as to both the definition
and nature of “harmful” information and the
acceptability of limits to children’s online speech.
Parents, public institutions and internet service
providers might all rightfully seek to prevent
children from accessing violent or sexually explicit
material, but overly broad blocking and filtering
mechanisms can intentionally or inadvertently deny
children a crucial means to educate themselves about
sexual health, gender and sexual orientation. Beyond
restricting access, closely monitoring children’s
behavior online and strictly policing digital forums
for discussion also threaten to chill children’s open,
honest communication. While it is sensible to
minimize children’s exposure to damaging material
and wise to guide children towards expressing their
opinions in healthy, productive ways, protective
measures need be no more restrictive than required
to achieve their stated objective.
Non-discrimination and education
It is critical to explore how children use technology
and the Internet, but a more fundamental question is
whether children are able to go online in the first
place. Children’s rights may represent universal
values in a digital world, but access to technology
and the Internet remains far from global. Estimates
indicate that less than half of the earth’s population
is online41
, and there is little available information
about how children fare within this cohort.42
Even in
industrialized countries, where technology can be an
implicit or even explicit requirement for schooling,
children in less privileged communities are less
likely to be online.43
Barriers to Internet access are
increasingly barriers to education, and the emerging
digital divide can deepen structural inequalities that
threaten to leave the planet’s poorest and most
vulnerable children further behind.
There have been numerous efforts, both
public and private, to expand children’s access to
technology and the Internet. Many have focused on
particular geographies or demographics, and some

41
ITU, ICT Facts and Figures – the World in 2015,
available at http://www.itu.int/en/ITU-
D/Statistics/Pages/facts/default.aspx.
42
Jasmina Byrne, Why we need more research on
children’s use of the internet, UNICEF, 13 August 2015,
available at https://blogs.unicef.org/blog/why-we-need-
more-research-on-childrens-use-of-the-internet/.
have offered free access to media and educational
services. While providing children with greater
online capabilities remains a laudable goal, this
should be done with a holistic appreciation for
children’s rights. Efforts should be expended to
make technology and the Internet affordable and
accessible for all children regardless of their location,
and special attention should be devoted to ensure that
children at greater risk of becoming vulnerable or
marginalized as a result of gender, disability or other
status share in this access without discrimination.
Equally, it must be remembered that beyond the
availability of technology and the Internet, children,
parents and educators must also be imparted with the
digital skills necessary to enjoy the full benefits of
online access in a responsible manner.
Conclusion
As children enter a fast-moving, ever more digital
world, it may seem difficult if not impossible to fully
comprehend how they can grow, develop and thrive
online. As this article makes clear, there are not
always easy, straightforward answers. The
underlying tenets of children’s rights, however,
remain the same. It may at times seem that the
imperative to protect children from online violence
runs counter to the obligation to empower children as
digital rights-holders, yet both remain indispensable
elements of a well-considered approach. It is hoped
that as technology continues to advance and evolve,
so to does our understanding of children’s rights in a
digital world.
k
43
See, e.g., Donald F. Roberts and Ulla G. Foehr, “Trends
in Media Use”, in Jeanne Brooks-Gunn and Elisabeth
Donahue (eds), The Future of Children: Children and
Electronic Media, Volume 18, Number 1, Spring 2008.
Summary available at
https://www.princeton.edu/futureofchildren/publications/
highlights/18_01_highlights_07.pdf

THE CLARION 2:1 14
RECOGNITION OF THE ROMA CHILD
Yvonne O’Sullivan & Miranda Wolford*

or most mothers, giving birth to their child is
a joyous, momentous occasion. For Rita
Prigmore’s mother, it was one of immense
relief, yet tremendous anxiety. Why? The only
reason that Rita and her twin sister were allowed to
be born was so that the Nazi could utilize them for
inhumane scientific research projects.44
Yet, for
members of a Roma community, this was considered
a stroke of enormous luck.
Many Roma mothers had been forcibly
sterilized in the midst of the Nazi occupation, with
this barbaric practice continuing for decades later,
just one of the many fear-inducing tactics used in an
attempt to wipe out the Roma population in Europe.45
Other methods of genocide included forced
abortions, gas chamber killings, starvation, forced
labor in unlivable conditions, lethal injections, and
firing squads. Horror stories of Nazi medical
experiments gone awry and bus loads of Romani
people being gassed plagued Roma communities,
engraining this violence into their historical identity
forever.46
In a conservative estimate by leading
historians on this deplorable campaign against the
Roma, 25% of the entire Roma population in Europe,
roughly 220,000 people, was slaughtered by Nazi
forces.47
By any working definition of the word, this

*
Yvonne O’Sullivan is currently the Research and
Publications Officer with the Tom Lantos Institute in
Budapest, Hungary. Yvonne completed a master’s in
Human Rights Law and Public Policy (LLM) at
University College Cork, Ireland and also a master’s in
International Peace Studies (MPhil) in Trinity College
Dublin. Miranda Wolford is a high school youth advocate
working in international relations and development in the
Dominican Republic and Thailand, currently interning at
the Tom Lantos Institute. The Tom Lantos Institute (TLI)
is an independent human and minority rights organization
based in Budapest with a particular focus on Jewish and
Roma communities, Hungarian minorities, and other
ethnic or national, linguistic and religious minorities.
Roma genocide was a focus topic in the Institute’s
European Summer School on Prejudice, Genocide,
Remembrance 2016.
targeted killing spree of Romani communities was an
egregious genocide.
Yet, this time of immense fear and suffering
for the Roma minority was not officially recognized
by the European Parliament until April 15, 2015,
when they declared that “a European day should be
dedicated to commemorating the victims of the
genocide of the Roma during World War II.”48
The
public’s attention surrounding the Holocaust and
World War II paid little to no attention to the
suffering of the Roma.
For over fifty years, the discriminatory
practices and prejudices that had manifested
themselves in the merciless killing of nearly a quarter
million people had gone unaddressed by the ruling
body of justice and governance in Europe. Official
recognition of this genocide was a critical first step,
but further progress must be made to ensure that
history does not repeat itself with the younger Roma
generations.
In a modern context, Roma children are still
the subjects of discrimination, the root causes of
which were never adequately addressed from the
genocide. If the discrimination that progressed to
outright genocide is not prevented against, how can
Roma children be protected from future acts of
ethnically-charged violence?
Beyond mere recognition, educational
measures must be implemented by governing bodies
of European nations to counteract the discriminatory
practices against Roma currently in place in society.
Both non-Roma and Roma youth must not only be
taught about the Roma genocide, but have an active
44
Zafeiri, Antonia. "Two Survivors of the Roma
Genocide Share Their Stories." Open Society
Foundations. Open Society Foundations, 6 Aug. 2014.
Web. 20 Aug. 2016.
45
Case of V.C. v. Slovakia. European Court of Human
Rights. 8 Feb. 2012. HUDOC. Web. 20 Aug. 2016.
46
"Roma Victims of the Holocaust: Roma in Auschwitz."
The Jewish Library. American-Israeli Cooperative
Enterprise, n.d. Web. 20 Aug. 2016.
47
"Genocide of European Roma (Gypsies), 1939-1945."
Holocaust Encyclopedia. United States Holocaust
Memorial Museum, 2 July 2016. Web. 20 Aug. 2016.
48
"Recognition." Roma Genocide Remembrance
Initiative. TernYpe International Roma Youth Network,
n.d. Web. 20 Aug. 2016.
F

THE CLARION 2:1 15
understanding of the contributing factors to prevent
further prejudice and conflict.
In recent years, international and European
organizations and institutions such as the World
Bank, United Nations Development Programme, and
the European Commission have shined a light on the
particular vulnerability of Roma youth, citing
disproportionate poverty rates, hunger, poor health
care, and educational inequalities as reasoning.49
From a strictly legal perspective, the treatment of
Roma youth in many parts of Europe directly violates
human rights law, something that has been widely
criticized by several human rights watch groups.
In the Convention on the Rights of the Child,
officially put forth by the United Nations in 1990,
Article Two specifically states that no child should
face discrimination, “irrespective of the child's or his
or her parent's or legal guardian's race, color, sex,
language, religion, political or other opinion,
national, ethnic or social origin, property, disability,
birth or other status.”50
However, Roma children face
widespread discrimination in schools because of the
persistent prejudices present in society, even among
teachers, including such practices as placement of
Roma children in special needs classes and
segregation from the mainstream schools, which
leads to Roma only schools, poor attendance and in
effect lower graduation rates. In Bulgaria in 1989,
nearly 120,000 Roma youth were receiving an
education, but by 1998, that number had dropped to
a mere 50,000, despite an increasing Roma youth
population. The right of Romani youth to go to
school without encountering direct or indirect
discrimination is being blatantly violated,
permanently inhibiting the educational opportunities
they receive.

49
Hammarberg, Thomas, comp. Human Rights of Roma
and Travellers in Europe. Rep. Strasbourg: Council of
Europe, 2012. Print.
50
United Nations. Office of the High Commissioner.
Convention on the Rights of the Child. New York: United
Nations, 1989. Convention on the Rights of the Child.
United Nations. Web. 20 Aug. 2016.
51
Article Three of the Convention states that all
actions taken by any party, private or public, on
behalf of the child should be in the child’s best
interests.51
Yet, all across Europe, mainly in
countries such as Hungary52
, Slovakia53
, and the
Czech Republic54
, the interests of Roma youth are
systematically ignored in favor of the interests of
non-Roma youth in school systems. It is claimed that
non-Roma students and parents feel “uncomfortable”
receiving an education alongside Roma students, so
schools are continuously being segregated, with
Roma youth being placed into separate classes and
schools, receiving an inferior education as a result.
The “best interests” of Roma youth are being
distinctly neglected when healthy, promising
students are actively being placed into schools for the
disabled or mentally-ill.
Article Twenty-Eight, details the right of
every child to education “and with a view to
achieving this right progressively and on the basis of
equal opportunity”.55
The forms of discrimination
against Roma children in school environments in
Europe, treating them as inferior and in turn limiting
their potential, is in direct conflict with the essence
of what the right to education aims to achieve.
Another dimension of the right to education is the
State’s duty to ensure children learn about historical
events such as the Holocaust and the genocide of the
Roma to help shape their understanding of peoples
and the discrimination they have experienced in the
past in the hope of preventing such atrocities in the
future.
Arguably one of the most important
provisions of the UN Convention on the Rights of the
Child is Article Eight, which mandates that all public
and private parties recognize and maintain the
52
Case of Horváth and Kiss v. Hungary. European Court
of Human Rights. 29 Jan. 2013. HUDOC. Web. 20 Aug.
2016.
53
"Slovak Court Rules Segregation of Roma in Schools
Unlawful." Amnesty International. Amnesty
International, 31 Oct. 2012. Web. 20 Aug. 2016.
54
D.H. and Others v. The Czech Republic. European
Court of Human Rights. 13 Nov. 2007. HUDOC. Web. 20
Aug. 2016.
55

THE CLARION 2:1 16
identity of the child.56
One step that has been made
in the right direction is the relatively recent, formal
recognition of the Roma genocide by the European
Parliament in 2015. Despite this formal recognition,
educational programs on the Roma genocide are by
no means widespread. The history of violence
endured in the genocide is an integral part of Roma
identity, making any attempt to deny or ignore the
genocide tantamount to a denial of Roma identity.
Article Eight may provide the key to preventing
continued harm to Roma youth.
Now the question has arisen: how can
educational efforts about the Roma genocide be
targeted in order to prevent the discriminatory
practices currently plaguing Romani youth? While
education is certainly key, the approach must be
holistic so that students can learn about the history of
the Roma experience, including the atrocities of
World War II, as well as how to prevent and fight
against future genocides.
The Interim Director of the University of
Minnesota’s Center for Holocaust and Genocide
Studies Ellen J. Kennedy points out that modern
genocide education programs should not only teach
about genocides but also how to tackle the root
causes of prejudice and discriminatory opinions
which may lead to such atrocities.57
Therefore, governments and citizens must
ensure that in the case of the Roma genocide,
students must not only be taught about the
discriminatory practices leading up to World War II
and the genocide, but also how to counteract these
racist and xenophobic practices today.
Eleven states in the United States have
adopted programs teaching genocide recognition and
prevention across secondary schools and higher
institutions, as a part of The Genocide Education
Project.58
Lesson plans focus not only on the
aftermath of genocide, but also on the specific steps

56
57
Kennedy, Ellen J. "Holocaust Education Should Strive
to Prevent Future Genocides." Minnesota Public Radio
News. Minnesota Public Radio News, 16 Apr. 2010.
Web. 20 Aug. 2016.
58
"Genocide Education Project." Genocide Education
Project. N.p., n.d. Web. 20 Aug. 2016.
leading to acts of genocide, such as prejudice in the
media and ignored discriminatory practices, as
originally researched by Dr. Gregory H. Stanton’s
work “The Ten Stages of Genocide.”59
Teachers
have witnessed success in opening dialogues in the
classroom to actually shift students’ mindsets on how
genocides originate, rather than merely teaching
about them.
The International Holocaust Remembrance
Alliance has set up a committee specifically to
allocate resources and advocate for Roma genocide
education, yet there are still no requirements for
genocide education at the primary or secondary
schooling levels in Europe. Online multilingual
teaching materials, digital exhibitions, and Roma
conference live-streams are available on their
website, however with no official inclusion of this
subject in school curricula in Europe today, these
resources have a limited impact.60
International human rights laws revolves
around the notion that they are fair and accessible for
every person, no matter their ethnicity, religion,
sexual orientation, gender, political or economic
standing, or any other distinguishing factor.61
Yet,
the rights of Roma children are still being
overlooked, viewed as a lower level priority, across
Europe today. Their rights as children, to education
and to their identity are consistently violated in a
systematic manner, continuing a pattern of prejudice
and discrimination from the Roma genocide of
World War II. In order to effectively eliminate these
gross human rights violations, quality Roma
genocide education must be mandated in European
school systems, finally giving the widespread
recognition to the Roma communities’ decades-long
struggle and enabling the next generation of Romani
youth to truly flourish.
k
59
Stanton, Gregory H. "Ten Stages of Genocide." (2013):
n. pag. Genocide Watch. The Genocide Education
Project. Web. 20 Aug. 2016.
60
"Genocide of the Roma." International Holocaust
Remembrance Alliance. International Holocaust
Remembrance Alliance, n.d. Web. 20 Aug. 2016.
61
United Nations. General Assembly. The International
Bill of Human Rights. New York: United Nations, 1978.
Print.

THE CLARION 2:1 17
INCLUSIVE EDUCATION AS THE KEY
TO NONDISCRIMINATION FOR
CHILDREN WITH DISABILITIES
Carly Mara Toepke*
his article briefly describes how the right to
inclusive education is a key contributor to
equality and nondiscrimination for children
with disabilities. It starts by giving a historical
overview of the right to education as codified
throughout international human rights instruments.
It then expands on the concepts of both inclusive
education and nondiscrimination. Finally, it ends
with a picture of how both interact in the realization
of the right to education.
Historical overview of the right to education
The right to education has evolved and become more
comprehensive since 1948 through both nonbinding
and binding law. The Universal Declaration on
Human Rights (“UDHR”), which was the foundation
of many human rights, provided that “everyone has a
right to education.”62
From there, the UNESCO
Convention against Discrimination in Education
prohibited discrimination in education which was
defined as treating any student differently based
solely on the ground that he or she belongs to a
certain group.63
The International Covenant on
Economic, Social and Cultural Rights codified the
right to education from the UDHR.64
Then, the

*
Dr. iur. Carly Mara Toepke, JD, is the Senior Program
Coordinator of Graduate and International Programs and
a lecturer at the University of Texas at Austin School of
Law. Her research focuses on disability human rights law
with a focus on education. She would like to thank Marie
Fallon-Kund, Swiss Paraplegic Research, for her
thoughtful comments on this article.
62
Universal Declaration of Human Rights, G.A. Res. 217
A (III), U.N. Doc. A/810 at 71, Art. 26 (1948).
63
UNESCO Convention against Discrimination in
Education, Paris, Art. 1 (1960).
64
International Covenant on Economic, Social and
Cultural Rights, G.A. Res. 2200 (XXI), U.N. G.A.O.R.,
21st Sess., Supp. No. 16, at arts. 1, 3, 6, 15, U.N. Doc.
A/6316 (1966), 993 U.N.T.S. 3, Art. 13 (1976).
65
United Nations Convention on the Rights of the Child,
G.A. Res. 44/25, U.N. G.A.O.R. 44th
Sess., Supp. No. 49
at 67, U.N. Doc. A/RES/44/49, Arts. 28, 29 (1990).
Convention on the Rights of the Child (“CRC”)
provided an even more detailed clarification that the
right to education should help develop the student
individually and as a person within their society.65
The Salamanca Statement was the first
international instrument to mention inclusive
education when it provided that an inclusive
education which accommodates all learners should
be the education solution because it is the best way
to combat discriminatory attitudes, create welcoming
communities, build inclusive societies, and achieve
education for all.66
The CRC Committee clarified
this right when it defined education using the
Salamanca Statement, confirming that education
should be inclusive.67
Most recently, the Convention
on the Rights of Persons with Disabilities (“CRPD”)
created a framework for State Parties to realize an
equal and nondiscriminatory right to education to
children with disabilities.68
The framework within
the CRPD is inclusive education at all levels and is
becoming the international law norm for the right to
education.69
The concepts of inclusive education and
nondiscrimination
Inclusive education
Inclusive education is an “approach and philosophy
that underpins educational improvement” and seeks
to address the learning needs of all.70
It is a process
of “addressing and responding to diversity of needs
of all learners by increasing participation […] and
reducing exclusion within and from education.”71
66
Salamanca Statement and Framework for Action on
Special Needs Education, UNESCO (1994).
67
Comm. on the Rts. of the Child, General Comment No.
1, Article 29(1): The aims of education, CRC/GC/2001/1
para. 62(2001) [hereinafter cited CRC].
68
Convention on the Rights of Persons with Disabilities,
G.A: Res. 61/106, 76th plen. mtg., U.N. Doc.
A/Res/61/106, 2515 U.N.T.S: 3 (2007) [hereinafter cited
CRPD].
69
Id., at Art. 24.
70
Peter Caton, Inclusive Teaching for Children with
Disabilities, IDDC Paper, TEACHERS FOR ALL 10 (2013).
71
UNESCO, Overcoming Exclusion through Inclusive
Approaches in Education: A Challenge and a Vision,
Conceptual Paper 4, 7 (2003).
T

THE CLARION 2:1 18
Unlike segregated education which affirms a
hierarchy of difference between learners and
integrated education that uses accommodations to fit
all learners into the mainstream model mold,
inclusive education is individualized for the potential
of each learner and their abilities. Before inclusive
education was codified, the right to education was
unable to be realized for all learners – namely for
children with disabilities – because equality in the
right to education requires inclusion.
Nondiscrimination
Nondiscrimination is not only a separate human
right, but it also runs through each individual right.72
Nondiscrimination is a minimum core obligation to
the right to education meaning that a State must
realize this without exception.73
Although the right
to education is considered a progressively realizable
human right, the right to be free from discrimination
is considered a civil and political right which must be
immediately realized.74
Therefore,
nondiscrimination is both a mandatory and
immediately realizable element of the right to
education that States must realize without exception.
This includes not only creating nondiscriminatory
inclusive education for all learners but also
dismantling any existing discriminatory policies and
practices that affect this right.

72
CRPD, supra note 8, at Art. 5; CRC, supra note 5, at
Art. 2.
73
Maria Green, What We Talk about When We Talk about
Indicators: Current Approaches to Human Rights
Measurement, 23 HUM. RTS. Q. 1062, 1072 (2001), citing
Comm. on Econ., Soc. & Cultural Rts, General Comment
No. 3, The nature of States parties’ obligations, U.N. Doc.
E/1991/23, E/C.12/1990/8 para. 10 (1990).
74
International Covenant on Civil and Political Rights,
999 U.N.T.S. 171 and 1057 .U.N.T.S. 407 / [1980] ATS
23 / 6 ILM 368, Art. 26 (1967).
75
Ravi Malhotra & Robin F. Hansen, The United Nations
Convention on the Rights of Persons with Disabilities and
its Implications for the Equality Rights of Canadians with
Disabilities: The Case of Education, 29 Windsor Y.B.
Access Just. 73, 80, 103 (2011); World Health
Organization, World report on disability 205 (WHO
Press, 2011).
76
Comm. on the Rts. of the Child, General Comment No.
1, supra note 7, at para 62.
Inclusive education as the key to
nondiscrimination
Although the right to be free from discrimination in
human rights realization has risen to the level of
customary international law and is included in
multiple international human rights treaties, many
children face barriers to the realization of the right to
education.75
Children with disabilities have the right
to enjoy their human rights on an equal basis without
discrimination;76
however, discrimination against
children with disabilities continues to be pervasive in
many formal educational systems.77
This
discrimination can destroy the ability of the child to
enjoy the right to education.
Discrimination in the context of education
includes treating any student in a way which
separates him or her from other students and impacts
his or her ability to participate in and receive
education.78
This includes depriving a person or a
group from access to education,79
limiting a person
or group to an inferior education,80
establishing or
maintaining separate educational systems for certain
groups,81
inflicting on any person or group
conditions which are against their dignity,82
or
denying reasonable accommodations or support for
education.83
Therefore, if a child is discriminated against
on the basis of disability when trying to access his or
her right to education, the State is in violation of its
legal obligation not to discriminate. Equality and
77
Id., at para. 10.
78
UNESCO Education Convention, supra note 3, at Art.
1.
79
Id., at Art. 1(a).
80
Id., at Art. 1(b).
81
Id., at Art. 1(c). Article 2 of the Convention against
Discrimination in Education elaborates that separate
educational systems are allowed if the separate systems
offer equivalent access to education with teachers of the
same qualifications, quality school premises and
equipment, and equivalent courses.
82
Id., at Art. 1(d).
83
CRPD, supra note 8, at Art. 2, 5 (3); Concluding
Observations of the Comm. on the Rts. of Persons with
Disabilities, Hung., U.N.Doc. CRPD/C/HUN/CO/1 para.
41(2012); Concluding Observations of Comm. on the Rts.
of Persons with Disabilities, Spain, U.N.Doc.
CRPD/C/ESP/CO/1 para. 44 (2011).

THE CLARION 2:1 19
non-discrimination in education can only be truly
achieved through inclusive education. Even though
not every State is party to international legal
instruments which have codified inclusive education,
all States should aim to be in compliance with the
emerging international law norms.
Nondiscrimination is one such solidified law norm
that must be realized, and inclusive education for all
learners is the way to accomplish it in realizing the
right to education.
k
CHILD SOLDIERING IN MYANMAR:
THE URGENCY TO IMPROVE LOCAL
REMEDIES
Raman Maroz*

Plight of Child Soldiers in Myanmar84
Until recently, Myanmar has been known as a
country with the highest number of underage soldiers
in the world.85
In the most critical periods, the

*
Ramon Maroz holds a University Degree in Political
Science (Université Montesquieu – Bordeaux IV); LL.B.,
LL.M. (Belarusian State University); LL.M. in
International Human Rights Law (Notre Dame Law
School). At present, Associate General Counsel at World
Service Authority (Washington, D.C.).
84
Also commonly known as Burma. The military
government changed the name of the country from Burma
to Myanmar in 1989 in order to underscore its unity. See
Haley Elizabeth Chafin, Stolen Innocence: The United
Nations’ Battle against the Forced Recruitment and Use
of Child Soldiers in Myanmar, 43 GA. J. INT’L & COMP.
L. 185, 187 (2014).
85
Child Soldiers Global Report 2008, COALITION TO
STOP THE USE OF CHILD SOLDIERS 5 (2008),
https://www.hrw.org/legacy/pub/2008/children/Child_So
ldiers_Global_Report_Summary.pdf.
86
“My gun was as tall as me.” Child Soldiers in Burma,
HUMAN RIGHTS WATCH 187 (2002),
https://www.hrw.org/legacy/reports/2002/burma/Burma0
902.pdf.
87
See Rep. of the Secretary-General on children and
armed conflict, U.N. Doc. A/70/836–S/2016/360, ¶¶ 108-
109 (Apr. 20, 2016) [hereinafter 2016 Secretary-General
Rep.].
Myanmar regular army (Tatmadaw) contained up to
70,000 children, while various ethnic military groups
enlisted 6,000-7,000 underage soldiers.86
In response
to international pressure, the government of
Myanmar undertook a range of important measures,
which helped to release hundreds of child soldiers.87
Nevertheless, recruitment and military use of
children in this Southeast Asian country continue to
be widely practiced.88
In Myanmar, child soldiering affects both
boys and girls.89
The targeted age for enlistment
varies typically between 14 and 17 years, though in
numerous cases children have been recruited at
younger age, even at 10 years old.90
Typically
recruitment of children is performed either by
military staff seeking career growth or by civilian
brokers, who purchase and sell children for monetary
reasons.91
In many cases, they threaten boys and girls
with imprisonment for having no identity documents
and thereby force them to enlist in the army as an
alternative.92
Because of minimal security features,
identity cards are also widely falsified in order to
circumvent legal prescriptions.93
Other recruitment
tactics include false promises to provide children
with jobs and education, direct abduction, delegation
by village authorities, and lottery system.94
88
See Rep. of the Special Rapporteur on the situation of
human rights in Myanmar, U.N. Doc. A/HRC/31/71, ¶¶
52, 61 (Mar. 18, 2016) [hereinafter 2016 Special
Rapporteur on Myanmar Rep.].
89
Rep. of the Secretary-General on children and armed
conflict in Myanmar, U.N. Doc. S/2013/258, ¶¶ 20-27
(May 1, 2013).
90
Id. ¶¶ 11, 20.
91
See Under the radar: Ongoing recruitment and use of
children by the Myanmar army, CHILD SOLDIERS
INTERNATIONAL 11 (Jan. 2015), http://www.child-
soldiers.org/Handlers/Download.ashx?IDMF=f0f4081a-
7674-40b3-b633-9b60e7bf787e [hereinafter 2015 CSI
Rep.].
92
See “Untold Miseries.” Wartime Abuses and Forced
Displacement in Burma’s Kachin State, HUMAN RIGHTS
WATCH (Mar. 20, 2012),
https://www.hrw.org/report/2012/03/20/untold-
miseries/wartime-abuses-and-forced-displacement-
burmas-kachin-state [hereinafter 2012 HRW Rep.].
93
See 2015 CSI Rep. at 18-19.
94
See CRC Shadow Report Burma. The plight of children
under military rule in Burma, U.N. COMM. ON THE
RIGHTS OF THE CHILD 33 (2011)
http://www2.ohchr.org/english/bodies/crc/docs/ngos/My

THE CLARION 2:1 20
In both State and non-State armed forces children are
exposed to different types of risks. Underage soldiers
have been systematically maimed and killed because
of regular crossfires between the Tatmadaw and
ethnic armed groups, rocket attacks, and use of
landmines.95
In addition, recruited children often
face particularly harsh conditions of service, which
include regular beatings, severe punishments, lack of
food, salary confiscations, and incitements to
suicide.96
Prohibition of Child Soldiering under
International Law
Both recruitment and military use of children are
unequivocally prohibited by international law. In the
area of international humanitarian law, child
soldiering is outlawed by provisions of two
Additional Protocols of 1977 to the Geneva
Conventions of 1949.97
Over time, prohibition of
recruiting and using underage soldiers in hostilities
has also crystalized into a rule of customary
international humanitarian law.98
Instruments of
international criminal law, including the Rome
Statute, establish individual criminal responsibility
for recruitment and military use of children.99
Child
soldiering is also prohibited by such human rights
treaties as the Convention on the Rights of the

anmar_CRFB_CRC.pdf [hereinafter 2011 CRC Shadow
Rep.].
95
See, e.g., Rep. of the Secretary-General on children and
armed conflict, A/68/878–S/2014/339, ¶ 110 (May 15,
2014).
96
See 2012 HRW Rep.; Rep. of the Secretary-General on
children and armed conflict, U.N. Doc. A/69/926–
S/2015/409, ¶ 136 (June 5, 2015).
97
Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (Protocol I) art. 77(2), June
8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed
Conflicts (Protocol II) art. 4(3)(c), June 8, 1977, 1125
U.N.T.S. 609.
98
See Jean-Marie Henckaerts et al. (Int’l Comm. of the
Red Cross), Treatment of Civilians and Persons Hors de
Combat, in 1 CUSTOMARY INTERNATIONAL
HUMANITARIAN LAW 299, 482-488 (2005).
99
Rome Statute of the International Criminal Court arts.
8(2)(b)( xxvi), 8(2)(e)(vii), July 17, 1998, 2187 U.N.T.S.
3; Agreement between the United Nations and the
Child100
and the Optional Protocol to the Convention
on the Rights of the Child on the involvement of
children in armed conflict,101
as well as by several
conventions adopted within the International Labour
Organization (ILO).102
Ineffectiveness of Myanmar Local Remedies
A closer examination of the situation of child
soldiering in Myanmar reveals that its government
could achieve some positive results primarily due to
international mechanisms and technical assistance.
In particular, through the ILO forced labor complaint
mechanism approximately 50 children are
discharged from the military every year.103
The U.N.
Country Force on Myanmar has secured the release
of more than 700 children since the adoption of Joint
Action Plan in June 2012.104
The Myanmar
Committee for the Prevention of Military
Recruitment of Underage Children, which has
discharged around 580 children, has received almost
all its cases from the ILO, UNICEF or local
NGOs.105
The Committee itself has dealt directly
only with one complaint.106
At the same time, national procedures against
recruitment and military use of children have proved
to be ineffective in many respects. Currently, the
Myanmar Penal Code does not recognize the crime
Government of Sierra Leone on the establishment of a
Special Court for Sierra Leone (with Statute) art. 4(c),
Jan. 16, 2002, 2178 U.N.T.S. 137.
100
Convention on the Rights of the Child arts. 38(2-3),
Nov. 20, 1989, 1577 U.N.T.S. 3.
101
Optional Protocol to the Convention on the Rights of
the Child on the involvement of children in armed conflict
arts. 1-4, May 25, 2000, 2173 U.N.T.S. 222.
102
Convention (No. 29) concerning forced or compulsory
labour, as modified by the Final Articles Revision
Convention, 1946 art. 11(1), June 28, 1930, 39 U.N.T.S.
55; Convention (No. 182) concerning the prohibition and
immediate action for the elimination of the worst forms
of child labour art. 3(a), June 17, 1999, 2133 U.N.T.S.
161.
103
Update on the operation of the complaint mechanism
in Myanmar, INT’L LABOUR ORGANIZATION ¶ 7 (2013)
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--
-
relconf/documents/meetingdocument/wcms_222546.pdf.
104
2016 Special Rapporteur on Myanmar Rep. ¶ 61.
105
2015 CSI Rep. at 11, 20.
106
Id.

THE CLARION 2:1 21
of child soldiering, but simply outlaws compulsory
labor.107
According to the practice of Myanmar
courts, compulsory labor is usually punished by fines
or reprimands, which is overtly disproportionate to
the gravity of the crime of child soldiering.108
Another obstacle to justice lies in the
existence of military courts serving as a shield from
responsibility for the regular army.109
Furthermore,
even when military courts proceed to administer
justice for enlisting and exploiting children in
hostilities, actual sanctions are primarily imposed on
low-ranking members of the Tatmadaw and rarely
reach senior personnel.110
Paradoxically, the level of
impunity is even higher with respect to civilian
brokers. In particular, it is reported that in 2015 only
one civilian broker was brought to justice.111
Crimes
of falsification of identity documents equally remain
almost absolutely unpunished.112
In addition to
serious impediments to the right to justice, no
independent steps have been taken by Myanmar
authorities to ensure the right to truth, while
rehabilitation policies for victims of child soldiering
are generally characterized as poor and
insufficient.113
Accordingly, the Myanmar experience shows
that reliance solely on foreign assistance may not
guarantee comprehensive resolution of internal
problems. Child soldiering will persist as long as the
government fails to establish a reliable system of
delivering identity documents. Nevertheless, in
addition to making it easier for children abducted
into military service to be identified, the government
must introduce appropriate sanctions against
perpetrators of this heinous crime against children
and enforce those sanctions by effective judicial
mechanisms reformed in line with the principle of
separation of powers and respect for the rule of law.
Given the gravity of the issue, urgent action from the
Myanmar authorities is required.
k

107
THE PENAL CODE OF MYANMAR ¶ 374, May 1, 1861
(Myan.), translation at
http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/6134
2/99602/F965183773/MMR61342%20English.pdf.
108
See 2011 CRC Shadow Rep. at 35-36.
109
CONSTITUTION OF THE REPUBLIC OF THE UNION OF
MYANMAR ¶ 20(b), May 29, 2008 (Myan.), translation at
http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/7957
2/85698/F1127243646/MMR79572.pdf.
110
See 2015 CSI Rep. at 23.
111
2016 Secretary-General Rep. ¶¶ 101-102.
112
See 2015 CSI Rep. at 11.
113
Id. at 21.
INTERNATIONAL HUMAN RIGHTS COMMITTEE
2016-2017 Programmatic Priorities
The International Human Rights Committee is
committed to serving as the leading voice on human
rights issues in the American Bar Association. While
the IHRC addresses emerging human rights issues and
situations and will continue to do so, the IHRC has
identified four primary areas of programmatic priority
for the coming year. These areas will serve to drive
committee work, programming and policy throughout
the year, while still allowing for members to actively
suggest and work on other topics through the Vice-
Chairs.
The priorities for 2016-2017 are:
-Environmental Justice and Protection.
-The Protection of Vulnerable Persons, including
disabled persons, children and minorities.
-The Protection of Lawyers and Judges.
-The Revitalization of the Human Trafficking
Subcommittee (HTSC), with a focus on involuntary
servitude.
Through focused efforts on these issues, the IHRC
leadership hopes to drive collective ABA efforts and
make a significant impact around the world.
We welcome program ideas associated with these
topics as well as member involvement in in any of the
programs or projects over the course of the coming
year.
£ •

THE CLARION 2:1 22
WHEN SURROGACY FAILS: REDRESS
FOR ABANDONED CHILDREN
FOUND IN INTERNATIONAL CHILD
RIGHTS LAWS
Tschika McBean*
World events that shock our moral compass are
opportunities to pause, reflect and create new laws,
revise existing ones or explore all available laws, to
ensure the loopholes that allowed the indiscretion to
fester, can be sealed. In 2014, a “Tai Surrogacy
Scandal,”114
erupted when an Australian couple,
David and Wendy Farnell, allegedly abandoned their
infant son in Thailand with the Thai surrogate,
Pattharamon Chanbua, after learning that the baby
suffered from Down syndrome.115
What made the
issue more noteworthy, was that the parents were
allowed to return to Australia with the child’s twin
sister.116
Consequently, the Australian couple denied
the allegations, stating that the surrogate mother,

*
Tschika McBean received her Juris Doctor from Loyola
University New Orleans College of Law. She obtained an
LL.M in International Law from Albany Law School
where she graduated magna cum laude and is a member
of the Justinian Society.
114
The Tai people are distinct from the Thai people.
While “Tai” is a cultural and ethnic designation, “Thai” is
a reference to citizens of Thailand.
115
Hilary Whiteman, Surrogate mom vows to take care of
ill twin 'abandoned' by parents CNN (Aug. 11, 2015)
http://www.cnn.com/2014/08/04/world/asia/thailand-
australia-surrogacy/
116
Michael Safi, Baby Gammy's twin can stay with
Australian couple despite father's child sex offences, THE
GUARDIAN (April 16, 2016 23.06 EDT)
https://www.theguardian.com/lifeandstyle/2016/apr/14/b
aby-gammys-twin-sister-stays-with-western-australian-
couple-court-orders (find court record)
117
Thailand stops couples leaving with surrogate babies,
BBC NEWS (Aug. 15, 2014)
http://www.bbc.com/news/world-asia-28811779
118
Farnell & Anor and Chanbua [2016] FCWA 17
(Austl.) available at
http://www.familycourt.gov.au/wps/wcm/connect/fcoaw
eb/judgments/full-court-judgments/judgment-
results?query=pipah&meta=%2Fau&mask_path=au%2F
cases%2Fcth%2FFamCA&mask_path=au%2Fcases%2F
cth%2FFamCAFC&search-judgments=Search
refused to part with the baby boy.117
Thereafter, the
Australian courts, concluded that the Australian
parents were not in violation of any child rights laws
pertaining to the infant left in Thailand and their
parental rights to their daughter were preserved.118
However, the Thai surrogate, maintained that the
baby boy was abandoned by his Australian parents,
who had requested that she terminate the pregnancy
after learning of the child’s condition.119
After this
incident gained international attention, Thailand
banned120
commercial surrogacy transactions with
foreigners and created the Protection of Children
Born from Assisted Reproductive Technologies
Act.121
In response to this event, but more precisely,
with the practice of international surrogacy
becoming common, many questions arose within the
legal community, cogitating the role of international
law in addressing this issue; specifically what legal
framework would be most suited to address a similar
situation. Was it a contractual issue?122
Does the
matter require review under domestic child abuse
and maltreatment laws?123
Was it a violation of
International Commercial laws,124
as it relates to the
119
BBC NEWS, supra note 3
120
Abby Phillip, A shocking scandal led Thailand to ban
surrogacy for hire, THE WASHINGTON POST (Feb. 20,
2015)
https://www.washingtonpost.com/news/worldviews/wp/
2015/02/20/a-shocking-scandal-led-thailand-to-ban-
commercial-surrogacy-for-hire/
121
Sayuri Umeda, Thailand: New Surrogacy Law,
LIBRARY OF CONGRESS (April 6, 2015)
http://www.loc.gov/law/foreign-news/article/thailand-
new-surrogacy-law/; see also Protection of Children Born
from Assisted Reproductive Technologies Act,
http://www.senate.go.th/bill/bk_data/73-3.pdf (Original
text of Document)
122
Yehezkel Margalit, In Defense of Surrogacy
Agreements: A Modern Contract Law Perceptive, 20
WM. & MARY J. WOMEN & L. 423 (2014), available at
http://scholarship.law.wm.edu/wmjowl/vol20/iss2/6
123
See AUSTL. INST. OF FAMILY STUDIES, What is
Child Abuse and Neglect Family Community Australia,
CHILD FAMILY CMTY. AUSTL. -RESOURCE
SHEET (Sept. 2015)
https://aifs.gov.au/cfca/publications/what-child-abuse-
and-neglect; see also Farnell & Anor and Chanbua
[2016] FCWA 17 (Austl.)
124
See Casey Humbyrd, Fair Trade International
Surrogacy, DEVELOPING WORLD BIOETHICS, Dec.
2009, at 111-118 (2009); see also Kristina Brugger,

THE CLARION 2:1 23
international transfer of Assisted Reproductive
Technology? Or, was it a confirmation that the
practice of international surrogacy should be
prohibited all together?125
Conversely, if one
ponders redress for this issue under International
Child Rights Laws (hereinafter ICRL), its resolution
is apparent. This article addresses the legal
ramifications associated with failed international
surrogacy arrangements, specifically, what measures
should be taken if parents in developed nations,
abandon their children born to surrogate women in
developing nations.
For many potential victims of child abandonment
involving international surrogacy arrangements,
utilizing ICRL, is a viable option, when domestic
laws are ineffective or unavailable to attach liability
to parents from developed countries. Notably, all
countries, except the United States of America, have
ratified the Convention on the Rights of the Child
(hereinafter Convention)126
. Therefore, all citizens
from developing countries, whose laws may be in
their infancy and do not provide remedies for
abandoned children, can still access child rights laws
at the international level. Moreover, the Vienna
Convention on the Law of Treaties, which most
States have signed and/or ratified, specify that all
signatories of a treaty should, “refrain from acts
which would defeat the object and purpose of a
treaty. . .” 127
Therefore, in instances where a State
has signed but has not yet ratified or implemented the
Convention, that State still carries an obligation to

International Law of the Gestational Surrogacy Debate,
35 FORDHAM INT’L L. J 666 (2012), available at
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=
2438&context=ilj
125
Xinran “Cara” Tang, Setting Norms: Protections for
Surrogates in International Commercial Surrogacy 25.1
MINN. J. INT’L L. 193 (2016) available at
http://minnjil.org/wp-content/uploads/2016/05/6-Tang-
macro-FINAL.pdf
126
Convention on the Rights of the Child, Nov. 20, 1989,
1577 U.N.T.S. 3, available at
https://treaties.un.org/doc/Publication/UNTS/Volume%2
01577/v1577.pdf
127
Vienna Convention on the Law of Treaties, art.18, May
23, 1969, 1155 U.N.T.S 331, available at
http://www.unhcr.org/refworld/docid/3ae6b3a10.html
128
Id
129
Xinran “Cara” Tang, supra note 11, at 208-209
130
Convention, supra note 12, at art. 7 (2)
refrain from acts, that are in conflict with the purpose
of the international instrument.128
Furthermore, reviewing existing ICRL, one can
determine that there are many exemplified laws and
avenues available that can be utilized to regulate
international surrogacy, in a manner that protects
children, especially when they are rejected.
International Child Rights Laws have already been
confirmed as important tools that can be utilized to
legitimatize the claims of citizenship for children
produced through international surrogacy
arrangements.129
According to Art. 7 of the
Convention, a “child shall be registered immediately
after birth and shall have the right from birth to a
name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or
her parents.”130
An abandoned child therefore has a
right to the citizenship of the parent who provided the
genetic material, as long as the child meets the
immigration requirements of the genetic parent’s
country. The United States of America, for example,
requires the child to have some genetic and/or
gestational relationship to the parent, in order to
obtain citizenship.131
Highlighting the “Tai Surrogacy Scandal,” both
countries, Thailand and Australia, have ratified the
Convention, on March 29, 2002 and December 17,
1990, respectively.132
Moreover, on September 25,
2012,133
Thailand ratified the Optional Protocol to
the Convention on Communication Procedure
(hereinafter Optional Protocol),134
which made
131
U.S. DEP’T STATE, BUREAU OF CONSUMER
AFFAIRS, Important Information for U.S. Citizens
Considering the Use of Assisted Reproductive Technology
(ART) Abroad,
https://travel.state.gov/content/travel/en/legal-
considerations/us-citizenship-laws-policies/assisted-
reproductive-technology.html (last visited July 11, 2016)
132
U.N.T.S., Status of Convention on the Rights of the
Child,
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND
&mtdsg_no=IV-11&chapter=4&lang=en (last visited
July 9, 2016)
133
Id.
134
the Child on a Communications Procedure, Dec. 11, 2011,
G.A. Res. 66/138, available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/OP
ICCRC.aspx

THE CLARION 2:1 24
international law accessible to Tai citizens via the
Committee on the Rights of the Child (hereinafter
CRC), when national remedies fail to address
violations of child rights and all national remedies
have been exhausted.135
Merely utilizing the
Convention coupled with the reinforcing nature of
the Optional Protocol, an abandoned child would
have a right to vindicate violations of child rights,
based on the State’s obligation under international
law. For developed countries, such as, Australia,
although not a party or signatory of the Optional
Protocol, there still remains an obligation to submit
quinquennial reports to the CRC, outlining their
progress on child rights issues and progress in
implementing the Convention into their domestic
legal systems.136
Moreover, Art. 23 of the
Convention places responsibility on States to ensure
“that a mentally or physically disabled child should
enjoy a full and decent life, in conditions which
ensure dignity, promote self-reliance and facilitate
the child’s active participation in the community.”137
It follows that, in cases, such as, the “Tai Surrogacy
Scandal,” after obtaining citizenship, there is still an
onus on the parents, to be enforced by the State, to
ensure that the disabled child, has access to medical
and any necessary treatment. The implementation
of legal confiscatory methods, such as, wage
garnishment of the parents in the developed world, in
order to satisfy this obligation under ICRL, could
achieve this purpose.

135
Id. at art. 7(8)
136
COMM. ON THE RIGHTS OF THE CHILD,
Monitoring Children’s Rights,
http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIn
tro.aspx (last visited July 11, 2016)
137
Convention, supra note 12, at art. 23
138
See e.g., The Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-
operation in Respect of Parental Responsibility and
Measures for the Protection of Children, Nov. 15, 1965,
35 I.L.M. 1391, available at http://hcch.e-
vision.nl/index_en.php?act=conventions.text&cid=70;
The Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption, May
29, 1993, 32 I.L.M. 1134, available at
http://www.hcch.net/index_en.php?act=conventions.text
&cid=69
*
Michela Cocchi is a lawyer in Bologna, Italy. Under her
leadership, her firm has been actively involved in
In conclusion, though the call to ensure children are
protected from violations of ICRL in international
surrogacy arrangements is complex, ICRL can still
be effective in protecting children produced through
these arrangements. Moreover, utilizing a
combination of international instruments138
aimed at
preserving children’s rights, the practice of
international surrogacy would be fortified.
k
CHILDREN IN HUMANITARIAN
CRISES: WHAT BUSINESS CAN DO:
THE DEVELOPMENT OF UNICEF AND
UN GLOBAL COMPACT (UNGC)
GUIDANCE
Michela Cocchi*
Introduction
The frequency and intensity of disasters are
increasing, while conflicts are becoming more
complex and, in many cases, cutting across borders
and regions. In 2016, 76 million people – including
43 million children – living in 63 countries are
requiring assistance in humanitarian crises139
to
protect them from malnutrition, disease and
Business and Human Rights issues. Ms. Cocchi is also
the President of the Lady Lawyer Foundation, which
works to put human rights standards at the heart of
governance and policy.
139
According to UNICEF and UN Global Compact
(UNGC) “Children in Humanitarian Crises: What
Business Can Do” Draft Guidance for public consultation
launched on 2016, June 8th, a humanitarian crisis is an
event or series of events that represents a critical threat to
the health, safety, security or well-being of a community
or other large group of people, usually over a wide area
and where affected populations cannot withstand the
negative consequences by themselves. Armed conflicts,
epidemics, famine, natural disasters and man-made
disasters all lead to a humanitarian crisis. Regardless of
the type of disaster, survivors are left in urgent of need of
life- saving assistance.

THE CLARION 2:1 25
interrupted education, and to help protect them from
violence, abuse and exploitation.
In these situations, particular attention must
be given to ensure that children’s rights are upheld
and safeguarded, as systems to protect children
often fail, aggravating child rights violations and
leaving children without options to seek help,
protection and remedies.140
Highlighting the impact of humanitarian crises
on children and business
Children under 18 years of age account for almost
one third of the world’s population. It is inevitable
that businesses, whether small or large, will interact
with and have an effect on the lives of children,
both directly and indirectly. Children are key
stakeholders of business—as consumers, family
members of employees, young workers, and as
future employees and business leaders. At the same
time, children are key members of the communities
and environments in which businesses operate.141
Unfortunately, children make up nearly half of the
world’s displaced people and, today, they now
represent more than half of all refugees.
Children who are denied education, health
care, nutrition and protection today are also denied
a full opportunity to contribute to building
sustainable prosperity, peace and stability in their
societies. This is of critical importance as countries
and the global community begin the vital work of
delivering on the promises of the Sustainable
Development Goals (SDGs).
Today, the humanitarian system is stretched
to the limit, and never before has it been as urgent
for all actors to come together to look for people-
driven, values-based approaches where public
policies are met by responsible business operations,
new business models, social and other investments,
innovation and technology.

140
In addition to the International Bill of Rights and
the core human rights treaties, there are other
universal instruments relating to human rights of the
child. A non-exhaustive selection is listed below:
Convention on the Rights of the Child (CRC);
the Child on the sale of children, child prostitution
and child pornography (CRC-OPSC); Optional
Protocol to the Convention on the Rights of the Child
On one hand, governments, with support
from partners, have the primary responsibility for
humanitarian planning and assistance, on the other
hand, governments, the United Nations, civil
society and intergovernmental organizations are
calling for more support from the private sector to
complement existing efforts.
Within such a framework, the United
Nations Children’s Fund (UNICEF) and the UN
Global Compact (UNGC) are collaborating on the
development of guidance for businesses to protect
and support children’s rights and well-being before,
during and after humanitarian crises. A draft of the
guidance was launched on June 8, 2016 for public
commentary and businesses and other stakeholders
were invited to provide feedback by responding to a
questionnaire. Public participation was expected to
end on July 8, 2016 with the final document to be
released in September 2016.142
Business operations and children in the context
of humanitarian crises
All businesses have the responsibility to respect
human rights, including those of children. This is
true, whether the businesses are operating in peace
time or during a humanitarian crisis. Nevertheless,
it is important to note that during crises, children are
especially vulnerable to and are at an increased risk
of being abused and exploited. Hence, it is critical
that legal and social mechanisms be put in place to
protect them and safeguard their rights.
The 2012 UNICEF, UNGC and Save the
Children Children’s Rights and Business Principles
provide a framework for avoiding, mitigating and
remediating any harm caused to children in their
operations.
There is ample guidance to help business
ensure their activities and supply chains do not have
on the involvement of children in armed conflict
(CRC-OPAC); Minimum Age Convention, 1973
(No. 138); Worst Forms of Child Labour
Convention, 1999 (No. 182).
141
See Introduction to 2012 UNICEF, UN Global
Compact (UNGC), and Save the Children
“Children’s Rights and Business Principles”.
142
See https://www.unglobalcompact.org/take-
action/action/

THE CLARION 2:1 26
a negative impact on children and their families.143
Beyond this, there is much more that business is
doing and can do.
Illustrating ways in which business can take
action to reduce hazards concerning children
during humanitarian crises: beyond private
sector
Business activities, operations and relationships
touch on children’s lives in new and unexpected
ways. Children’s rights do not implement
themselves, and many businesses will be unable,
unprepared or even unwilling to meet their
obligations, calling to action all stakeholders, being
important to acknowledge the roles that they play in
ensuring respect and building support for children’s
rights in the private sector.
Most notable among these stakeholders are
government, media, consumers and children.
Governments control the legal and regulatory
environment in which businesses operate; media
provide a platform for public awareness and
accountability; consumers have the power to create
a marketplace that values children’s rights; children
can at times be the strongest champions of their
rights. Each actor should consider how interactions
with each other can enhance and complement their
advocacy efforts.144
Providing examples and inspire further action to
advance children’s rights
Companies with operations or supply chains inside
and outside countries that are facing humanitarian
crises can take action individually or in partnership
with others to support children and families who are
at risk of, affected by or recovering from
humanitarian crises.
The report of the United Nations Secretary-
General for the World Humanitarian Summit145
stresses that it is now time to move “from delivering
aid to ending need,” and outlines an agenda for
action, which includes five core responsibilities146

143
Among others see Child Labour Platform (CLP)
“Good Practice Notes With recommendations for
companies”, implemented by the Sustainable Trade
Initiative (IDH), November 2014.
for collective action by governments, local
communities, the private sector, international
organizations and aid providers, to end crises and
suffering. These include providing political
leadership to prevent and end conflicts, upholding
the norms that safeguard humanity, leaving no one
behind, changing people’s lives from delivering aid
to ending need, and investing in humanity.
Conclusion
Traditionally, support from business and other
actors has been significant during responses to
sudden onset emergencies. While such support
continues to be critical, globally there is a call for
new approaches to respond to humanitarian crises
that are more sustainable and make more effective
use of local capabilities.
Unless the root causes of humanitarian
crises are fully and properly addressed, it will be
difficult to deliver on the promises of the
Sustainable Development Goals and the
commitment to leave no one behind.
In dealing with humanitarian crises, greater
emphasis needs to be placed on prevention,
mitigation and preparedness for response, as well as
the life-saving response.
Coordination across sectors, in communities
and districts and country-wide is essential for
building resilience. It is therefore critical to break
the barriers between the humanitarian response and
development.
k
144
2013 Save the Children “How to use the
Children’s Rights and Business Principles: a Guide
for Civil Society Organizations”.
145
See https://www.whsummit.org.
146
The United Nations Secretary-General’s Agenda
for Humanity.

IN MEMORIAM
The IHRC is deeply saddened to report the torture and murder of Willie Kimani, a
human rights defender and lawyer in Kenya. Willie was murdered in June along with
his client, who had been pursuing a case against police in Kenya, and their driver. As
of publication, at least five people have been charged in connection with this heinous
crime, four of them police officers. Willie was a young legal advocate, having
graduated from law school only five years ago, and had worked with various justice
and human rights organizations in his short career. The loss of Willie at such a critical
juncture in Kenya’s history has spurred many activists and international organizations
to call for investigations into a culture of extrajudicial killings in Kenya. This loss will
be profoundly felt, and we remember Willie’s commitment to justice as we mourn his
killing.
THE CLARION

John Mukum Mbaku & Luke Wilson
IHRC Publications Vice-Chairs (2015-2016)
Editors, The Clarion:The IHRC Journal of Human Rights
The Clarion: The IHRC Journal of Human Rights is a publication of the International Human Rights Committee
of the American Bar Association, Section of International Law.
All copyrights held by:
The American Bar Association
321 N. Clark Street
Chicago, IL 60610
Phone +1 (312) 988-6102

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