The Basic Law (Grundgesetz) is the German Constitution. As the guiding law overarching all other German statutory regulations, however, it does not adequately provide for children’s rights. While children are mentioned, they are not expressly named as original legal subjects, but rather only as the object of Article 6 of the Basic Law.
According to Article 4 of the UN Convention on the Rights of the Child, Germany is obliged to implement the provisions of the Convention in its national law, and must ensure basic principles and directives are executed effectively. The Committee has repeatedly urged Germany to ensure that the UN Convention on the Rights of the Child takes precedence over simple federal law. The principles of the UN Convention on the Rights of the Child are, however, yet to be duly reflected in the Basic Law, apart from the protection against discrimination, as established in its Article 3 Paragraph 3.
The current legal situation in Germany thus does not sufficiently ensure implementation of children’s rights; there are considerable shortcomings in the way children’s interests are taken into account, and in the way children are promoted and involved in decision-making, as the process for deducing these rights – through an interpretation in the light of public international law or a combination of constitutional provisions – is complex. The Committee is rightly of the opinion that enshrining general human rights in the Constitution does not suffice to ensure the respect of children’s rights.
In Germany, children’s rights currently attract great society and politics. They are stipulated in 15 of the 16 state constitutions (all except in Hamburg), to varying degrees. In October 2018, the state of Hesse incorporated children’s rights into its constitution in the form of the right to development, the best interests of the child, and the right to participation. The governing parties’ coalition agreement of 2018 stipulates that children’s rights are to be enshrined in the German Constitution (Basic Law) as a basic right, though the details and exact formulation remain open.
Explicitly including children’s rights in the German Basic Law would create a requirement for all fields of law, which would take precedence over mere federal laws. This would provide normative clarity, and result in substantive and procedural consequences that can have tangible impact on children’s lives.
Ensuring the best interests of the child as a primary consideration at constitutional level is necessary in order for those applying the law to give adequate weight to these interests. To date, the best interests principle has not been expressly enshrined as an overarching benchmark for all legal fields in ordinary or constitutional law. A child’s basic independent right to participation cannot be easily derived from the general personal rights established in Article 2, in conjunction with Article 1 of the Basic Law. Explicit incorporation into the Basic Law can improve child-specific interpretation of ordinary law, and prompts legislators to enact specific participation rights in various areas of ordinary law.
While the general personal rights include the right to development, this needs to be further honed in the Basic Law to be more child-specific. Unlike adults, children are not at liberty to further their development as part of a free and unhindered personal development of the individual, but are dependent on special assistance for this. In addition to the protection mandate, the wording must also include a mandate to fulfil children’s rights so as to guarantee the realisation of children’s rights through proactive, promoting measures. The ‘respect, protect and fulfil’ framework commonly found in human-rights treaties would be used here.
- The National Coalition Germany recommends that the UN Committee calls on the German federal government to
- 1. Explicitly constitutionalise the general principles of the UN Convention on the Rights of the Child in the German Basic Law (Constitution), as per recommendation 10 in the UN Committee’s Concluding Observations of 2014. It is important to ensure that the incorporated children’s rights establish subjectively enforceable rights, and include both the best interests principle and the rights to participation, a child-specific right to development, and the mandate for protection and promotion.