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6 Children’s Commissioners – A Special Case?

6 Children’s Commissioners – A Special Case?

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CHILDREN’S COMMISSIONERS – A SPECIAL CASE?



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national human rights institutions in the promotion and protection of the rights of the child and

General Comment 5 (2003) on General measures of implementation of the Convention on the

Rights of the Child (Arts 4, 42 and 44, para 6) (UN Doc. CRC/GC/2003/5).

Committee on the Rights of the Child General Comment No. 2 (2002), paras 5 and 7

While adults and children alike need independent NHRIs to protect their human rights, additional justifications exist for ensuring that children’s human rights are given special attention.

These include the facts that children’s developmental state makes them particularly vulnerable

to human rights violations; their opinions are still rarely taken into account; most children have

no vote and cannot play a meaningful role in the political process that determines Governments’

response to human rights; children encounter significant problems in using the judicial system

to protect their rights or to seek remedies for violations of their rights; and children’s access to

organizations that may protect their rights is generally limited . . . .

It is the view of the Committee that every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights. The Committee’s principal concern is that the institution, whatever its form, should be able, independently and

effectively, to monitor, promote and protect children’s rights. It is essential that promotion and

protection of children’s rights is ‘mainstreamed’ and that all human rights institutions existing

in a country work closely together to this end.



Question



Do you agree that national human rights institutions may be insufficient to ensure that the rights of the child are properly

protected within the State? Why do children require additional protection?

That children’s rights are viewed distinctly and have produced an increase in the number of national

institutions is apparent from the work of the Committee on the Rights of the Child.

Committee on the Rights of the Child General Comment 5 (2003), para. 9

The general measures of implementation identified by the Committee and described in the present

general comment are intended to promote the full enjoyment of all rights in the Convention by all

children, through legislation, the establishment of coordinating and monitoring bodies –

governmental and independent – comprehensive data collection, awareness-raising and training

and the development and implementation of appropriate policies, services and programmes. One

of the satisfying results of the adoption and almost universal ratification of the Convention has

been the development at the national level of a wide variety of new child-focused and childsensitive bodies, structures and activities – children’s rights units at the heart of Government,

ministers for children, inter-ministerial committees on children, parliamentary committees, child

impact analysis, children’s budgets and ‘State of children’s rights’ reports, NGO coalitions on

children’s rights, children’s ombudspersons and children’s rights commissioners and so on.



There is clearly a role for national institutions in ensuring that children’s voices are heard at all

levels of decision-making and that their needs are considered by the power-makers of a State.

The Committee on the Rights of the Child advocates that children either have separate institutions or that a distinct division within the regular national human rights institution deals specifically with children’s issues. Obviously part of the emphasis has to be on accessibility for children

to the body concerned.

From the international perspective, children’s commissioners fulfil many purposes. In essence

they are a voice for children; an advocate for children’s’ rights; an investigator of complaints; and a

governmental advisor:



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Voice: Provide a mouthpiece for children, receiving and processing their views thereby giving

effect to Article 12 of the Convention on the Rights of the Child. Van Beuren suggests that ‘[i]f

the hallmark of a democratic society is a plurality of expressed opinion and contributions by

those living within it then participation of children ought to be valued’ (Van Beuren, G. (1994)

The International Law on the Rights of the Child, Dordrecht: Martinus Nijhoff, 1994 at 131). This links

to Hammarberg’s argument (Hammarberg, T. (1990) ‘The U.N. Convention on the Rights of

the Child – and How to Make it Work’ Human Rights Quarterly 12:97) for participation as once

heard, children’s opinions can be channelled in appropriate directions to facilitate participation in decision-making. The Norwegian ombudsman model, established in 1981, is a good

example of this.

Advocate: Provide a platform from which to campaign for children’s rights. Indeed the UN

Committee recommends that children’s organisations are involved in establishing salient

commissions (UN Committee on the Rights of the Child Concluding Observations UN Doc.

CRC/C/15/Add. 188a: para 17(d)). Even at the international level, a number of nongovernmental organisations contribute to the promotion of children’s rights. Given the aforementioned vulnerability of children, the need for active advocacy cannot be underestimated.

The importance is exacerbated when the child is too young or otherwise impeded from a

more active role in decision-making. Moreover, advocacy can assist in changing the culture to

a more child responsive one conducive to children’s rights’ realisation and possibly even

proactive in their preemptive protection.

Investigator: Act as investigator and mediator for considering individual or group complaints.

While children can use existing international and regional individual complaint mechanisms

(none exist under UNCRC), these are not necessarily child-friendly or accessible, the efficacy

of each depending on a number of factors not least the age of the child. Commissioners should

thus be ‘easily accessible to children, able to determine their own agenda, empowered to investigate violations of children’s rights in a child-sensitive manner and ensure that children have

an effective remedy for violations of their rights’ (UN Committee on the Rights of the Child

Concluding Observations UN Doc. CRC/C/15/Add.188a: para 17 (a)). A number of factors must be

considered including the language employed at each stage. Children must be made aware of

their rights before any complaint process becomes effective. Securing human rights education

is of key importance in this respect.

Governmental Advisor: Advise governments and legislatures on measures affecting children.

The Committee recommended to the UK that it should ‘[e]nsure that all the human rights

institutions have formal advisory functions with the respective legislative bodies and that they

establish formal links, including of cooperation, with each other’ (UN Committee on the

Rights of the Child Concluding Observations UN Doc. CRC/C/15/Add. 188a: para 17(b)). This links

back to commissioners as a voice for children and the advocacy function. Participation projects

in southern African States have demonstrated the potential positive impact children can have

on the legislative process. Within Europe, youth parliaments perform a similar, albeit less official, function, channelling the views of young people towards the decision-makers in an

informal manner.



The Council of Europe makes simple suggestions regarding the powers of national institutions for

children:

EUROPEAN CONVENTION ON THE EXERCISE OF CHILDREN’S RIGHTS 1996

Article 12

1 Parties shall encourage, through bodies which perform, inter alia, the functions set out in

paragraph 2, the promotion and the exercise of children’s rights.



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2 The functions are as follows:

a

b

c

d



to make proposals to strengthen the law relating to the exercise of children’s rights;

to give opinions concerning draft legislation relating to the exercise of children’s rights;

to provide general information concerning the exercise of children’s rights to the media,

the public and persons and bodies dealing with questions relating to children;

to seek the views of children and provide them with relevant information.



Within Europe, the European Network of Ombudsmen for Children (ENOC) was established in

1997. It links independent offices for children from twelve countries in Europe with the aim of

encouraging implementation of the Convention on the Rights of the Child, supporting collective

lobbying for children’s rights, to sharing information, approaches and strategies, and promoting

the development of effective independent offices for children (see, generally www.ombudsnet.

org/). The advent of the third optional protocol to the Convention on the Rights of the Child establishing a complaints mechanism will most likely strengthen the position of children’s commissioners (see for example, L. Smith, ‘Monitoring the CRC’ in G. Alfredsson, J. Grimheden, B.

Ramcharan and A. de Zayas (eds), International Human Rights Monitoring Mechanisms, Essays in Honour of Jakob

Th. Moller, 2nd edn, The Hague: Martinus Nijhoff, 2009, at p 115).



7.6.1 Case Study: Norway

Norway created the world’s first ever ombud (Commissioner) for children in 1981. Anne Lindboe

was appointed in 2012, Norway’s fifth Ombudsman for Children.

Three concepts are identified as underpinning the work of the ombudsman in Norway.

Objectives of ombudsman for Children in Norway (taken in English translation from

www.barneombudet.no)

Safety measures: all efforts and initiatives the government and society have established, in

order for vulnerable children to be intercepted by, for instance, child welfare authorities.

Participation: the society’s ability to listen and act on behalf of children, their experience and

expertise as well as letting children and youth be a part of the ever changing society.

Conditions for growth: an extensive concept to cover the basic ideas such as education, health

and culture.



Note how different in expression these are from the goals expressed by the Committee on the

Rights for the Child. Note also the scope which they encompass.

CONSTITUTIVE ACT, (taken in English translation from www.barneombudet.no)

ACT NO. 5 OF MARCH 6, 1981 RELATING TO THE OMBUDSMAN FOR CHILDREN (With

changes from July 17 1998)

§1 Purpose

The purpose of this Act is to contribute to promoting the interests of children in society.

§2 Ombudsman for Children

The King shall appoint an Ombudsman for Children for a period of four years.

§3 Duties of the Ombudsman

The duties of the Ombudsman are to promote the interests of children vis-à-vis public and

private authorities and to follow up the development of conditions under which children grow up.



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In particular the Ombudsman shall:

(a)



On own initiative or as a hearing instance protect the interests of children in connection

with planning and study-reports in all fields,

(b) Ensure that legislation relating to the protection of children’s interests is observed,

including if Norwegian law and administrative routines are in accordance with Norway’s

obligations according to the UN convention on the Rights of the Child,

(c) Propose measures that can strengthen children’s safety under the law,

(d) Put forward proposals for measures that can solve or prevent conflicts between children

and society,

(e) Ensure that sufficient information is given to the public and private sectors concerning

children’s rights and measures required for children.

The Ombudsman may act on own initiative or at the request of other people. The Ombudsman

for Children himself decides whether an application offers sufficient grounds for action.

§4 Access to institutions and duty to provide information, etc.

The Ombudsman shall have free access to all public and private institutions for children.

Government authorities and public and private institutions for children shall, notwithstanding the pledge of secrecy, give the Ombudsman the information needed to carry out the

duties of the Ombudsman pursuant to this Act. Information that is needed for the accomplishment of the Ombudsman’s tasks pursuant to §3, second paragraph, litra b, may also, notwithstanding the pledge of secrecy, be demanded from others. When information can be demanded

pursuant to this item, it may also be required that records and other documents be produced.

The rules laid down in subsection 1,204 and §§205–209 of the Civil Disputes Act are correspondingly applicable to the Ombudsman’s right to demand information. Disputes as to the

application of these rules may be brought before the District and City Courts, which decide the

question by a court ruling.

§5 Statements from the Ombudsman

The Ombudsman has the right to make statements concerning conditions included in his

working sphere, according to this Act and the Instructions for the Ombudsman. The Ombudsman

himself decides to whom these statements shall be directed.

§6 Instructions for the Ombudsman



The King lays down general instructions for the organisation and procedures of the Ombudsman.

Beyond this the Ombudsman carries out his functions independently.



A subsequent decree elaborates on the power of the Ombudsman to investigate cases.

INSTRUCTIONS FOR THE OMBUDSMAN FOR CHILDREN

Laid down by Royal Decree of September 11, 1981 with changes last by Royal Decree of July

17, 1998, taken in English translation from www.barneombudet.no

§2 How cases are taken up

The Ombudsman takes up cases on his own initiative or at the request of other people.

Anyone may apply to the Ombudsman. The Ombudsman shall ensure that verbal applications are put into writing.

A person applying to the Ombudsman should, in so far as possible, explain the grounds for

the application and submit whatever information and documents are available in this case.



CHILDREN’S COMMISSIONERS – A SPECIAL CASE?



If an application concerns a specific child and the application does not come from the child

itself, the Ombudsman shall not deal with the case without the permission of the relevant child.

When the child’s age so indicates, the permission of the guardian shall also be obtained. If

general considerations so indicate, the Ombudsman may deal with the case even though

permission as mentioned above has not been obtained.

§3 Rejection

The Ombudsman shall reject applications concerning specific, individual conflicts between a

child and its guardians, between the guardians mutually concerning the exercise of parental

responsibility and similar matters. The Ombudsman shall also reject applications that partly

cover such conflicts, unless the Ombudsman, after a concrete assessment, finds that the

interests of the child obviously will be neglected through this rejection.

The Ombudsman shall in such cases give the reason for the rejection and offer information

about any existing instances established for the purpose of handling conflicts of this nature.

A rejection by the Ombudsman cannot be appealed.

§4 Referrals

Applications relating to conditions that in the main concern questions relating to the application

of the law or the handling of the case are to be referred by the Ombudsman to the Storting’s

Ombudsman for Public Administration when this is relevant.

If an application concerns a situation that may be brought before an administrative agency,

the person applying to the Ombudsman for Children shall be advised to take the matter up with

the relevant body. The Ombudsman himself may also send the matter to this body.

If an application concerns a situation which can be referred to the Public Prosecution

Authority or a special supervisory body, after a more detailed investigation of the circumstances

of the case the Ombudsman may send the case to the relevant authority if the conditions

pursuant to subsection 6 of §13 b of the Public Administration Act obtain.

§5 Shelving of cases

If the Ombudsman finds that application has been made for a situation that does not offer

grounds for criticism or for any other follow-up procedure, the case may be shelved. The

Ombudsman may also shelve a case if the situation that the application concerns has been

remedied or has ceased to exist.

At any stage in the proceedings, the Ombudsman may also shelve a case for reasons

connected with work. However, the Ombudsman should try to deal with a representative selection

of cases.

Anyone who has applied to the Ombudsman shall be informed of the shelving of the case

and the reason for this.

The shelving of the case by the Ombudsman cannot be appealed.

§6 Rules for dealing with cases

Chapters I–III of the Public Administration Act and the Freedom of Information Act are

applicable to the activity of the Ombudsman.

Before making his statement the Ombudsman shall ensure that the case is clarified as

far as possible. The Ombudsman determines what steps should be taken to clarify the

circumstances in the case.

Also when this does not follow from other rules the Ombudsman shall preserve secrecy

about the source of information he has used when the source has expressly requested this, or

if the Ombudsman finds this appropriate on behalf of the child.



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§7 The Ombudsman’s statement on the case

The Ombudsman shall personally adopt a standpoint on all cases that have been taken up for

discussion and have not been shelved pursuant to §5 of the Instruction. As a basic rule the

opinion of the Ombudsman shall be formulated as a written statement, giving the grounds

for this.

The Ombudsman himself decides to whom the statement shall be directed. The statement

can also be directed to the press and the broadcasting corporation or others to the extent that

the Ombudsman finds expedient.

The Ombudsman shall not express an opinion on the position in regard to the law when

the Storting’s Ombudsman for Public Administration has made a statement or when the

situation has either been decided by the courts or has been brought before the courts for a

decision.

Neither shall the Ombudsman express an opinion in cases that are under police investigation and where children might have been exposed to acts in violation with the law, insofar as

somebody is under suspicion or indicted in the case. Even so, the Ombudsman may criticise the

factual and legal situation that has been revealed by the Ombudsman for Public Administration’s

statement, by the police investigation or by the decision of the courts.



Question



Are the limitations in part three justified, given the nature of human rights, the benefactors and the duty incumbents?



Further Reading

Burdekin, B., National Human Rights Institutions in the Asia-Pacific Region, 2005, The Hague: Brill.

Carver, R., ‘A new answer to an old question: national human rights institutions and the

domestication of international law’, (2010) 10 Human Rights Law Review, 1.

Goodman, R. and Pegram, T. (eds), Human Rights, State Compliance and Social Change; assessing

national human rights institutions, 2011, Cambridge: CUP.

Harland, C., ‘The Status of the ICCPR in the Domestic Law of State Parties: an initial global

survey through UN Human Rights Committee documents’ (2000) 22 Human Rights Quarterly

187.

Heyns, C., and Viljoen, F., ‘The Impact of the United Nations Human Rights Treaties on the

Domestic Level’ (2000) 23 Human Rights Quarterly 483.

Heyns, C., and Viljoen, F., The Impact of UN Human Rights Treaties on the Domestic Level, 2002, The

Hague: Kluwer.

Marie, J-B., ‘National Systems for the Protection of Human Rights’ in Symonides, J., Human

Rights: International Protection, Monitoring, Enforcement, 2003, Aldershot: Ashgate/UNESCO,

pp 257–80.

Mertus, J., Human Rights Matter: Local Politics and National Human Rights Institutions, 2008,

Chicago: Stanford University Press.

Murray, R., The Role of National Human Rights Institutions at the International and Regional Levels:

The Experience of Africa, 2007, Oxford: Hart Publishing.

Shelton, D., Remedies in International Human Rights Law, 2nd edn, 2005, Oxford: OUP.

United Nations, Fact Sheet No. 19, National Institutions for the Promotion and Protection of Human

Rights, 1993, Geneva, United Nations Office.



Websites

www.nhri.org: United Nations Forum for National Human Rights Institutions.

www.usccr.gov/: US Commission on Civil Rights.

www.nihrc.org: Northern Ireland Human Rights Commission.



WEBSITES



www.hreoc.gov.au/: Australian Human Rights and Equal Opportunities Commission.

www.chrc-ccdp.ca/: Canadian Human Rights Commission.

www.barneombudet.no/english/: the Norwegian Ombudsperson for Children.

crin.org/enoc/: European Network of Ombudspersons for Children.

www.nhri.net/: National Human Rights Institutions Forum.



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Chapter 8



Extending the Duties to Protect and Respect

Human Rights: Non-State Actors



Chapter Contents

8.1



Human Rights Education and Training



259



8.2



Non-Governmental Organisations



261



8.3



Business and Multinational Corporations



269



8.4



Educators, Lawyers and Individuals



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HUMAN RIGHTS EDUCATION AND TRAINING



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In spite of the systems outlined, human rights are infringed daily. This chapter will consider the

broader context:













Reasons for extending human rights protection and promotion beyond States.

Duties on individuals, businesses and NGOs.

Relevance of human rights education.

Human rights and business.

Global compact on human rights.



International human rights are indivisible, inalienable and universal. Accordingly, everyone should

contribute towards their development. So far the role of international and regional institutions and

treaty monitoring bodies have been discussed. Chapter 7 on National Human Rights Institutions

reviews the nature of international human rights. In spite of these developments, human rights are

still not enjoyed by everyone everywhere. This chapter therefore takes the discussion further,

looking at the involvement of non-State actors in building a culture of respect and promotion of

human rights. The UN Declaration on Human Rights Education and Training adds further support

for this.

Three categories will be considered in this chapter: non-governmental organisations;

multinational corporations (business); and educators. Of course, as the African regional instruments indicate, there is perhaps a corresponding duty upon individuals and those involved in

human rights activities (lawyers, for example) to familiarise themselves with human rights and to

strive to secure their realisation. The ‘power of the people’ may produce a cumulative effect.

Accordingly, this chapter begins with consideration of human rights education and training.



8.1 Human Rights Education and Training

Primary responsibility for human rights protection of course rests with States – the duty holders

under international human rights treaties and other instruments. As six and a half decades of the

Universal Declaration of Human Rights attest, this approach has proved insufficient to guarantee

universal protection, promotion and respect for human rights. The problems are of course foreseeable – States are the primary obligees under international human rights, but prove reluctant to take

the necessary changes at the national level to give effect to their international human rights obligations. The pressure on States is primarily ‘top down’, when being applied solely from the international organisations and other States. Should those residing within a State be unaware of their

rights, of course, they are less likely to seek to enforce them, to apply pressure from the ‘bottom

up’. Human rights education and training addresses this problem by trying to ensure that everyone

everywhere is aware of their basic rights. National human rights institutions, as discussed in

Chapter 7, play a major role in this. However, the United Nations has recently taken steps to more

clearly define the responsibility of everyone to learn about their human rights and the obligation

of the State to publicise human rights issues.

General Assembly resolution 217(III) D, 10 December 1948

PUBLICITY TO BE GIVEN TO THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The General Assembly,

Considering that the adoption of the Universal Declaration of Human Rights is an historic act,

destined to consolidate world peace through the contribution of the United Nations towards the

liberation of individuals from the unjustified oppression and constraint to which they are too

often subjected,



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Considering that the text of the Declaration should be disseminated among all peoples

throughout the world,

1. Recommends Governments of Member States to show their adherence to Article 56 of

the Charter by using every means within their power solemnly to publicize the text of the

Declaration and to cause it to be disseminated, displayed, read and expounded principally in

schools and other educational institutions without distinction based on the political status of

countries or territories;

2. Requests the Secretary-General to have this Declaration widely disseminated and, to

that end, to publish and distribute texts, not only in the official languages, but also, using every

means at his disposal, in all languages possible;

3. Invites the specialized agencies and non-governmental organizations of the world to do

their utmost to bring this Declaration to the attention of their members.



There is no doubt that this aspiration has yet to be fulfilled.

Question



What reasons are there for States not to actively disseminate materials on human rights and be proactive in encouraging everyone

within their territory to become familiar with all applicable human rights treaties and rights of individual complaints thereunder?

Some treaties also make provision for the publication and wide dissemination of their provision –

the UN Convention on the Rights of the Child is one example.

UN Convention on the Rights of the Child, Article 42

States Parties undertake to make the principles and provisions of the Convention widely known,

by appropriate and active means, to adults and children alike.



A UN Decade for Human Rights Education ran from 1995 to 2004, with the objective of improving

awareness and knowledge of human rights, thereby cultivating an environment more conducive to

the protection of human rights and prevention of violations of human rights. General Assembly

resolution 49/184 (1993) proclaimed this decade.

The decade has been followed by a rolling (open-ended) World Programme for Human Rights

Education. The aim of the World Programme is explained as follows:

World Programme of Human Rights Education

2nd phase plan of action, para 8

The objectives of the World Programme for Human Rights Education are:

(a) To promote the development of a culture of human rights;

(b) To promote a common understanding, based on international instruments, of basic

principles and methodologies for human rights education;

(c) To ensure a focus on human rights education at the national, regional and international levels;

(d) To provide a common collective framework for action by all relevant actors;

(e) To enhance partnership and cooperation at all levels;

(f) To survey, evaluate and support existing human rights education programmes, to highlight

successful practices, and to provide an incentive to continue and/or expand them and to

develop new ones.



Alongside these developments, the duties to protect and respect human rights are now extending

through advances with human rights education and training. Following an initiative by the Human



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Rights Council, the UN General Assembly adopted Resolution 66/137 (2011) the UN Declaration

on Human Rights Education and Training.

UN Declaration on Human Rights Education and Training 2011

Article 2

1. Human rights education and training comprises all educational, training, information,

awareness-raising and learning activities aimed at promoting universal respect for and observance of all human rights and fundamental freedoms and thus contributing, inter alia, to the

prevention of human rights violations and abuses by providing persons with knowledge, skills

and understanding and developing their attitudes and behaviours, to empower them to

contribute to the building and promotion of a universal culture of human rights.

2. Human rights education and training encompasses:

(a)



(b)

(c)



Education about human rights, which includes providing knowledge and understanding of

human rights norms and principles, the values that underpin them and the mechanisms

for their protection;

Education through human rights, which includes learning and teaching in a way that

respects the rights of both educators and learners;

Education for human rights, which includes empowering persons to enjoy and exercise

their rights and to respect and uphold the rights of others.



Human rights education is envisaged as being lifelong – the first phase of the World Programme

(2005–2009) focused on embedding human rights education within primary and secondary schooling.

The second phase (2010–2014) turns attention to higher education, teachers, educators, civil servants,

lawyers, and law enforcement and military personnel. As is self-evident, not all these recipients are

government officials or otherwise part of the State apparatus. Many are, however, and in this regard,

the Declaration is intended to act as a prompt to States, inviting them to carefully consider national

initiatives to develop the necessary awareness of human rights. States are also invited to submit their

action plans and initiatives to the UN (available online – for the second phase, see www2.ohchr.org/

english/issues/education/training/programme/secondphase/nationalinitiatives.htm).

Obviously a fundamental problem lies with enforcement: the text is a declaration and some of

the putative obligees are not entities over which the State can officially exercise control. As the

subsequent sections of this chapter demonstrate, there is a growing tendency to adopt ‘soft law’

measures supporting the progress of human rights through the work of non-State actors. These are,

in effect, voluntary codes from an enforcement perspective. Nevertheless they can be used against

a State to support private initiatives which advocate human rights.

Question



Can you think of ways in which non-State actors, even private individuals, may be able to use the UN Declaration on Human

Rights Education and Training in a positive way? (Almost using it as a shield against State disapproval thereby creating a sword

of knowledge to challenge the State.)



8.2 Non-Governmental Organisations

Non-governmental organisations are evermore involved in the process of articulating and realising

rights. They influenced the inclusion of references to human rights in the UN Charter during the

drafting process at Dumbarton Oaks in San Francisco. Their involvement in the United Nations has

increased since – today they engage with international human rights in a variety of ways. Inevitably

therefore, the number of NGOs and the range of issues with which they work has also increased.



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