Been there. Done that. International interpretive materials and evolving children’s rights

The UN Convention on the Rights of the Child (Incorporation)(Scotland) Act 2024 (2024 Act) commenced in July 2024. The culmination of decades of work by children, young people, NGOs, elected officials and academics, the 2024 Act incorporates the UN Convention on the Rights of the Child (UNCRC) into Scots law with the intention of ensuring a “maximalist approach” to direct legal incorporation by giving “international law direct effect in national law” while ensuring justiciability. The 2024 Act requires that Acts of the Scottish Parliament must, so far as it is possible to do so, be read and given effect in a way which is compatible with the UNCRC (s. 24(1)).

The widespread view that human rights treaties are ‘living’ instruments ensures that children’s rights elaborated in the UNCRC do not remain static and respond to the developments within and between the different legal and social sites of application. To ensure the 2024 Act results in a ‘fundamental shift in the way children’s rights are respected, protected and fulfilled,’5 sections 4 and 16 of the Act list international interpretive materials produced by the Committee on the Rights of the Child (CRC) that stakeholders responsible for enforcing and implementing the Act should consider. Whilst some stakeholders are uncertain how to engage with these interpretive sources, this note demonstrates that these materials have previously contributed to developments in Scots Law and, as such, interpreting the 2024 Act should not be deemed inherently complicated simply because ‘international’ materials are now fundamental to interpreting the rights elaborated in the Act. Section B introduces the interpretive materials included in the Act. The examples of corporal punishment and the minimum age of criminal responsibility (MACR) demonstrate how the interpretive guidance of the CRC Committee has informed previous law reform projects in Scotland (Section C). Finally, we reflect on how the 2024 Act merely solidifies the need for stakeholders to engage with relevant international materials as a means of ensuring the rights of the most widely ratified treaty in the world.