Art. 4 Protection of rights
INCLUSION OF CHILDREN´S RIGHTS IN THE CONSTITUTION
As a State party to the UN Convention on the Rights of the Child Germany shall under Art. 4 “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.” This includes the inclusion of children’s rights in the German Constitution (German Basic Law / Grundgesetz).
In its Concluding Observations of 30 January 2004 on the second periodic report of Germany, the Committee stated (in para. 9) that it “remains concerned that the Convention has not been incorporated into the Basic Law, as foreseen at the time of the initial report.” It also recommended to the Federal Government (in para. 10) to “reconsider the incorporation of the Convention into the Basic Law.”
The Federal Government has so far not complied with this recommendation. In its third and fourth periodic report it stated (in para. 19): “A constitutional amendment is (…) not necessary.”
Children only objects of the parents in the German Constitution
In the German Constitution children do not appear as subjects of the law, but merely as subject matter (objects of the parents). Art. 6 para 2 of the Constitution (German Basic Law) states: “The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them.” In addition, the German Constitutional Court has so far not formulated an all-encompassing primacy of the best interests of the child, according to Art. 3 para. 1 CRC.
Relationship between the UN Convention on the Rights of the Child and the German Constitution
Unlike in many other countries, the international treaties ratified by Germany do not automatically become part of the Constitution. This also applies to the CRC. Under Article 25 of the German Constitution (German Basic Law), the Convention holds the rank of an ordinary federal law. Therefore, the Constitution takes precedence.
Core elements of a Constitutional Amendment
Following the guidelines of the CRC, the inclusion of children's rights in the Constitution should include the following core elements:
- Recognition of the child as a subject and bearer of his or her own rights
- The right of the child to protection and provision
- The right of the child to participation and age-appropriate consideration of his or her opinion
- Priority of the best interests of the child in all decisions affecting them.
The general public opinion does not yet fully include respect for children as individuals with their own rights and their participation in society. In the view of the National Coalition for the Implementation of the CRC this would change with a Constitutional Amendment.
The National Coalition urges the Federal Government to undertake concrete steps for the explicit inclusion of children’s rights in the German Constitution (German Basic Law).