UN STANDARDS AND NORMS
ON JUVENILE JUSTICE:
FROM SOFT LAW TO HARD LAW
MATTI JOUTSEN–Tokyo, 27 January 2017

European Institute for Crime Prevention andControl, affiliated with the United Nations

From soft law to hard law

outline:➤Why do we need standards and norms?
➤What are the standards and norms on juvenile justice?
➤How do they affect our work as practitioners?
➤From ”soft law” to ”hard law”: the impact of theConvention on the Rights of the Child

European Institute for Crime Prevention andControl, affiliated with the United Nations

Why do we need standards and norms?

”each society itself decides what is crime and what to doabout it”-> criminal justice has long been purely territorial-> each criminal justice system is different-> particularly true for juvenile justice

European Institute for Crime Prevention andControl, affiliated with the United Nations

Why do we need standards and norms?
➤ London, 1872: First International Congress on Crime

Prevention and the Repression of Crime, including
Penal and Reformatory Treatment••“children hovering on the verge of criminality”“what is the best organization of reformatory
institutions for juveniles”➤ Paris, 1882: first of many

international congresseson child welfare

European Institute for Crime Prevention andControl, affiliated with the United Nations

Why do we need standards and norms?

➤ League of Nations••

Child Welfare Committee
juvenile justice became an intergovernmental issue

European Institute for Crime Prevention andControl, affiliated with the United Nations

Why do we need standards and norms?

➤ United Nations•continued exploration of “what works” in juvenile
justice• one third of the first UN criminal policy
programme dealt with juvenile justice:• medical and educational measures forchildren with antisocial tendencies• employment and protection of children
leaving school• treatment of juvenile offenders with medicaland educational methods

European Institute for Crime Prevention andControl, affiliated with the United Nations

Why do we need standards and norms?

➤ United Nations••

staple of UN Congresses• focus on offenders, or “at-risk” children?
• proper scope of treatment and punishment• criteria for success or failure of treatment• what should be the age limits?
growing strength of human rights basis:• 1948 Universal Declaration of Human Rights• 1966 Covenant on Civil and Political Rights

European Institute for Crime Prevention andControl, affiliated with the United Nations

Why do we need standards and norms?

➤ a “standard and norm”•••

defines acceptable conduct
sets the minimum level of the quality of justiceguides the direction of reform➤ an international standard andnorm is intended to apply to• different countries• at different stages of development• with different legal and administrative systems

European Institute for Crime Prevention andControl, affiliated with the United Nations

Why do we need standards and norms?

➤ many forms:
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resolutions,recommendations,declarations,standard minumum rules,basic principles,proclamations,statements,guidelines, code of conduct, codes of ethics …

European Institute for Crime Prevention andControl, affiliated with the United Nations

standards and norms on juvenile justice➤ UN Standard Minimum Rules for the Administration ofJuvenile Justice (the Beijing Rules; 1985)➤ UN Guidelines for the Prevention of Juvenile

Delinquency (the Riyadh Guidelines; 1990)➤ UN Rules for the Protection of Juveniles Deprived ofLiberty (the Havana Rules; 1990)➤ 1997 Guidelines for Action on Children in the Criminal

Justice System (the Vienna Guidelines; 1997)

European Institute for Crime Prevention andControl, affiliated with the United Nations

standards and norms on juvenile justice➤ these four are “soft law”: they are not legally binding➤ one hard law instrument:

the Convention on the Rights of the Child (1989)• widely ratified: universal• implementation review:
Committee on theRights of the Child• states report every five years• General Comments
European Institute for Crime Prevention andControl, affiliated with the United Nations

How are standards and norms drafted and approved?
➤ general process of drafting and adoption:
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initiative from individual experts or organizations
preparation of draft
discussion of draft at several expert meetings
discussion at the UN Commission (or equivalent)
adoption by ECOSOC / General Assembly(publication and dissemination by UN Secretariat)➤ some changes since the 1992 UN restructuring:••bigger role for States
use of open-ended intergovernmental meetings

European Institute for Crime Prevention andControl, affiliated with the United Nations

the Beijing Rules➤ Beijing Rules history:
•••••
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Sixth United Nations Congress called for “modelrules on juvenile justice administration”
first draft by Professor Horst Schüler-Springorum
UN ad hoc Meeting of Experts on Youth, Crime andJustice (1983; Newark, New Jersey)
five-week international seminar at UNAFEI
Sixth Joint Bellagio Colloquium
Interregional Preparatory Meeting (Beijing)
Seventh UN Congress (Milan, 1985)
adoption by the General Assembly

European Institute for Crime Prevention andControl, affiliated with the United Nations

the Beijing Rules➤ guiding principle of juvenile justice: well-being of thejuvenile and his or her family➤ non-discrimination➤ age of criminal responsibility should not be too low➤ use of discretion and diversion••detention only as a last resort
deprivation of liberty only for extremely serious
crimesEuropean Institute for Crime Prevention andControl, affiliated with the United Nations

the Beijing Rules➤ protection of basic procedural safeguards➤ taking the minor’s opinion into consideration➤ avoidance of unnecessary delay➤ no capital or corporal punishment➤ the need for professionalism and training➤ the objective of measures should be rehabilitation
European Institute for Crime Prevention andControl, affiliated with the United Nations

the Riyadh Guidelines➤ Riyadh Guidelines history:••••••••

no provisions in Beijing Rules on preventionin adopting the Beijing Rules, the GA called forstandards and norms on prevention
Professor Allison Morris prepared first draft
circulated among experts
discussion at NAUSS (Riyadh) in 1988
Interregional Preparatory Meeting (Vienna)
Eighth UN Congress (Havana, 1990)
adoption by the General Assembly

European Institute for Crime Prevention andControl, affiliated with the United Nations

the Riyadh Guidelines➤ well-being of the juvenile and his or her family➤ the need for comprehensive prevention plans➤ importance of the family and support to the family➤ importance of education➤ importance of community measures➤ role of mass media➤ institutionalization of young persons should be ameasure of last resort and for the minimum necessary
period➤ development of the appropriate legislation and juvenile
justice administration

European Institute for Crime Prevention andControl, affiliated with the United Nations

the Havana Rules➤ Havana Rules history:
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••
•
••

despite ICPC, SMRs and Beijing Rules, extensive
incarceration of children continued
Havana Rules promote alternatives, and theprotection of the rights of children in custody
Defence for Children International working group
circulated among experts
Max Planck Institutediscussion at NAUSS (Riyadh) in 1988
Interregional Preparatory Meeting (Vienna)
Eighth UN Congress (Havana, 1990)
adoption by the General Assembly

European Institute for Crime Prevention andControl, affiliated with the United Nations

the Havana Rules➤ Havana Rules apply to all persons under 18 years➤ deprivation of liberty = any detention, imprisonmentor placement in a public or private custodial setting➤ closely follow the contents of the SMRs; on e.g.
• pre-trial detention• admission to juvenile facilities and classification• the physical environment and accommodation• education, vocational training, work, recreation• religion, medical care
• physical restraint and the use of force• disciplinary procedures, inspections and complaints• personnel
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the Havana Rules➤ well-being of the juvenile (rehabilitation)➤ deprivation of liberty should be last resort and for theminimum period➤ non-discrimination➤ protection of basic procedural safeguards➤ protection of confidentiality➤ separation of juveniles from adults

European Institute for Crime Prevention andControl, affiliated with the United Nations

the Havana Rules➤ promotion of small open facilities➤ juveniles deprived of their liberty should be preparedfor release➤ contacts with the family and the wider community
must be maintained➤ no corporal punishment or solitary confinement➤ need for professionalism and training

European Institute for Crime Prevention andControl, affiliated with the United Nations

the Vienna Guidelines➤ Vienna Guidelines history:••••

entry into force of the Convention on the Rights of
the Child provided new basis for cooperation among
many stakeholders
ECOSOC called for guidelines on this cooperation
expert group meeting in Vienna (1997)
adopted by ECOSOC

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the Vienna Guidelines➤ measures of general application➤ specific targets➤ measures to be taken at the international level➤ mechanisms for the implementation of TA projects➤ implementation of country projects➤ child victims and witnesses
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are international standard and norm binding?
➤ general view: standards and norms are soft law, andthus not binding• they are simply a request to apply the contents• if a state (or practitioner) does not comply, there
are no sanctions➤ but: soft law is a stage in development of hard law➤ soft law may contribute to customary international law➤ soft law may be used as arguments for amending

national law and in national and international discourse

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ … and then came the Convention on the Rights of theChild

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ Convention on the Rights of the Child•••provisions setting out basic rights and principles(non-discrimination, the best interests of the child,the right to life, survival and development, the rightto be heard)
provisions that apply to juveniles in conflict withthe law (e.g. on deprivation of liberty, and thetreatment of a child in conflict with the law)provisions that apply to all children, but are
particularly relevant if a child has been placedin an institution (e.g. contact with family, theright to express their views and to be heard, theright to be protected from physical or mentalviolence)

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ review of implementation of the CRC••

reports from states every five years; the Committee
issues conclusions and recommendations
General Comments• General Comment no. 7 on rights in earlychildhood• General Comment no. 12 on the right to beheard• General Comment No. 10 (2007) on therights of children in respect of juvenilejustice

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from soft law to hard law➤ example 1: the minimum age of criminal responsibility•

considerable disparity:• some have minimum age at 14-16• some use a higher and lower age• some allow even young children to be tried (asyoung as 6-7 years)➤ Beijing Rule 4: “not fixed at too low an age level”➤ CRC 40(3) requires “a minimum age below whichchildren shall be presumed not to have the capacity toinfringe the penal law”

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ General Comment 10:•••“… the Committee has recommended States parties
not to set a MACR at a too low level and to increase
the existing low MACR to an internationallyacceptable level.
From these recommendations, it can be concluded
that a minimum age of criminal responsibility below
the age of 12 years is considered by the Committee
not to be internationally acceptable.
States parties are encouraged to increase theirlower MACR to the age of 12 years as the absolute
minimum age and to continue to increase it to ahigher age level.”

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ example 2: the right to be heard•••different types of decision-makers
different types of procedures
different types of structures➤ Beijing rule 14.2 guarantees the right to be heard:“The proceedings shall be conducive to the bestinterests of the juvenile and shall be conducted in an
atmosphere of understanding, which shall allow thejuvenile to participate therein and to express herself orhimself freely.”

European Institute for Crime Prevention andControl, affiliated with the United Nationsfrom soft law to hard law➤ CRC art. 12:••

1. States Parties shall assure to the child who iscapable of forming his or her own views the right toexpress those views freely in all matters affecting
the child, the views of the child being given due
weight in accordance with the age and maturity of
the child.
2. For this purpose, the child shall in particular beprovided the opportunity to be heard in any judicial
and administrative proceedings affecting the child,either directly, or through a representative or an
appropriate body, in a manner consistent with theprocedural rules of national law.

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from soft law to hard law➤ the Committee has time and again returned to thechild’s right to be heard, and recommended that• laws be changed,• policy be developed,• more resources be given, and• in general closer attention be given to this right inpractice, and not just in law➤ in General Comment 10, the Committee has clarified

the child’s right to be heard

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ “The child should be given the opportunity to express

his/her views concerning the (alternative) measuresthat may be imposed, and the specific wishes orpreferences he/she may have in this regard should begiven due weight.
➤ Alleging that the child is criminally responsible implies
that he/she should be competent and able toeffectively participate in the decisions➤ … to treat the child as a passive object does notrecognize his/her rights nor does it contribute to aneffective response to his/her behaviour …
➤ Research shows that an active engagement of the childin this implementation will, in most cases, contributeto a positive result.”
European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ many other examples of the inclusion of ”soft law” into

the CRC and the work of the Committee, such as:• competent, independent and impartial authority• right to legal assistance• presence of parents during legal proceedings• protection against self-incrimination• right to privacy• shortest possible period of detention• use of diversion and non-custodial sanctions• right to appeal• no cruel, inhuman or degrading treatment

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ general tendencies in the work of the Committee:•guarantee of procedural and substantive rights•

limitation of the scope of definition of delinquency•

increased use of diversion•

less imprisonment•

less severe and punitive sanctions for juveniles

European Institute for Crime Prevention andControl, affiliated with the United Nations

from soft law to hard law➤ the Convention on the Rights of the Child marks a shift

from soft law to hard law➤ the Committee is continuing this process: thestandards and norms are one step in the spread ofinternational best practice, of ”what works”➤ we have come from the paternalism of 100 years ago

to recognition of the rights of juveniles – including
their right to be treated equally and as active
participants in juvenile justice

European Institute for Crime Prevention andControl, affiliated with the United Nations

domo arigato!
–matti.joutsen(at)om.fi

European Institute for Crime Prevention andControl, affiliated with the United Nations