VISITING EXPERTSʼ PAPERS
UN STANDARDS AND NORMS ON JUVENILE JUSTICE:
FROM SOFT LAW TO HARD LAW
Matti Joutsen＊

I. THE NEED FOR UN STANDARDS AND NORMS ON JUVENILE JUSTICE
When a society or a government defines what conduct should be criminal and how society should respond,
this decision is intimately linked to national (or local) values and traditions. Until relatively recently, societies
have seen little reason to look beyond their borders for models or guidance in the development of criminal
law or the criminal justice system.
During the second half of the 1800s, this insular attitude began to change. Discussions on criminal justicepolicy became international. Practitioners and policymakers from different countries started to exchange
their experiences in criminal justice. The first two themes to be taken up were intertwined: corrections andjuvenile justice.1 The First International Congress on Crime Prevention and the Repression of Crime,
including Penal and Reformatory Treatment (London, 1872) brought together practitioners from many
countries interested in learning from one another about how to deal with offenders. Among the topics
considered at that first international congress were juvenile reformatories, and more broadly how society
should deal with delinquent children.2
Ten years later, juvenile justice was addressed in its own right on the international level. In 1882, the first
International Congress on Child Welfare was held in Paris, followed by the International Congress for the
Welfare and Protection of Children in 1896, in Florence. The Third International Congress for the Welfare
and Protection of Children (London, 1902) considered the problem of neglected children, and the probability
that such children would turn to delinquency if due care was not taken.
When the League of Nations was established a few years later, juvenile justice became one of its mainareas of activity. Criminal justice thus became not only an international issue, but also an intergovernmental
one. In 1919 the League of Nations established the Child Welfare Committee in order to examine the rights ofchildren. It took up topics such as street children, slavery, child labour, child trafficking and the prostitution ofminors.
The United Nations continued the work of the League of Nations.3 The first draft programme outlining
what crime prevention and criminal justice issues the United Nations should address included as its very firstpoint “the problem of juvenile delinquency in all its phases, including the study of advanced legislation on thesubject”,4 and juvenile justice has very often been on the agenda for example of the quinquennial United
Nations Congresses on Crime Prevention and Criminal Justice. The debates concerned such issues as
whether the focus should be on children who commit crimes, or on children who are deemed to be “at-risk” ofdelinquency; the proper scope of treatment and punishment; the criteria for evaluating the success or failureof treatment; and what should be the age limits for criminal responsibility.
Director, European Institute for Crime Prevention and Control, affiliated with the United Nations.
See, for example, Redo, p. 108.
2
Questions 45 through 50 on the programme dealt with such questions as what to do about “children hovering on the verge ofcriminality” and “what is the best organization of reformatory institutions for juveniles, that which rests on the congregate or
the family principle”. See <https://books.google.co.th/books?id=nYsIAAAAQAAJ&printsec=frontcover&dq=First+Internatio
nal+Congress+on+Crime+Prevention+and+the+Repression+of+Crime&hl=th&sa=X&ved=0ahUKEwi12ayRyLHRAhXBs48
KHW6RDhMQ6AEIKjAB#v=onepage&q=First%20International%20Congress%20on%20Crime%20Prevention%20and%20the%20Repression%20of%20Crime&f=false>, p. 22.
3
Clark 1994 provides a good presentation of the evolution of the United Nations crime prevention and criminal justiceprogramme.
4International Review of Criminal Policy, vol. 1, p. 12.
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This international sharing of experiences was designed to identify “what works” in crime prevention andcriminal justice, in other words “good practice”.5 Parallel with the work of the United Nations on crime
prevention and criminal justice, increasing attention was being given to human rights. This resulted in theformulation of international instruments setting out certain minimum legal safeguards. Respect for humanrights has also been recognized as promoting effective crime prevention and control, nationally andinternationally.6 In particular the 1948 Universal Declaration of Human Rights and the 1966 Covenant on Civil
and Political Rights have direct implications for the operation of the criminal justice system, and also for thejuvenile justice system.
Good practice and human rights: these two factors have mixed in different ways, at different times and inrespect of different issues, such as the prevention of delinquency, child protection, legal representation injuvenile court, care in an institutional environment, and greater use of mediation and restorative justice.
One key way in which good practice and human rights have been brought together is in the form ofinternational standards and norms, a concept that has found a welcoming home in the United Nations crime
prevention and criminal justice programme.
A “standard and norm” is a document that contains normative elements. It defines how members of thetarget audience ‒ individuals, members of a certain profession, public officials and so on ‒ should conduct
themselves, and may even define the minimum level of the quality of justice. An “international standard andnorm” on justice, accordingly, is a document that is intended to apply to target audiences in different states,
often at different stages of development and with different legal and administrative systems.
A standard and norm can be set out in an international agreement, national law or other binding
instruments. In the United Nations and the criminal justice context, however, the term refers specifically to anumber of instruments adopted by the General Assembly and the Economic and Social Council (and in a few
exceptional cases, by other bodies) that are designed as benchmarks for the development of the criminal
justice system. As noted on the UNODC website,7 “These standards and norms provide flexible guidance forreform that accounts for differences in legal traditions, systems and structures whilst providing a collective
vision of how criminal justice systems should be structured.”
The four UN standards and norms that are generally mentioned when speaking about juvenile justice are:the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (theBeijing Rules; GA 40/33);
the 1990 United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh
Guidelines; GA 45/112);
the 1990 United Nations Rules for the Protection of Juveniles Deprived of Liberty (the Havana Rules;
GA 45/113); andthe 1997 Guidelines for Action on Children in the Criminal Justice System (the Vienna Guidelines;
ECOSOC 1997/30).8Standards and norms are commonly referred to as “soft law” instruments, in the sense that they provide
guidance but are not legally binding. In any discussion of the UN standards and norms on juvenile justice,
however, reference should also be made to a “hard law” instrument, the United Nations Convention on the
Rights of the Child (CRC).9 This has been ratified by all but one member state of the United Nations, and isthus as nearly universally binding an instrument as there can be in international law.
There is no formal mechanism for reviewing how the individual member states implement UN standards
Different formulations have been used in this respect, such as “what works”, “good practice”, “best practice” and “promising
practice”. Each has been criticized on somewhat different grounds, but usually with the argument that what works in one
context may not work in another, and the argument that formulations such as “good practice” and “best practice” imply a value
judgement (“You are doing this the wrong way. My way is better.”).
6
E/CN. 15/1997/14, para 41. It may be noted that the United Nations Charter includes an obligation to promote universal
respect and observance for human rights.
7<https://www.unodc.org/unodc/en/commissions/CCPCJ/ccpcj-standards-and-norms.html>.
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and norms. Article 43 of the CRC, however, provides for an implementation review mechanism: theCommittee on the Rights of the Child. State parties have to report every five years to the Committee (art. 44of the CRC).10 In the course of its work, the Committee has developed guidelines ‒ “General Comments” ‒ on
the implementation of the Convention. One General Comment, in particular, should be mentioned, General
Comment no. 10, on childrenʼs rights in juvenile justice.11
Within the United Nations crime prevention and criminal justice programme, the issue of implementation
review has proven to be quite sensitive. In the case of two hard law treaties, the United Nations Convention
against Transnational Organized Crime and the United Nations Convention on Corruption, the way in which
the respective Conferences of the States Parties can review how individual states parties implement theirtreaty obligations has caused extensive debate.12 It is thus interesting to see that in the specific area ofjuvenile justice, an implementation review mechanism appears to function relatively smoothly, with aninternational group of experts assessing implementation in over 190 states, in five year cycles, and issuing
public recommendations to individual states parties.
It is the arc from academic discussions of “promising practice” to binding international hard law on
juvenile justice that forms the framework for the present paper.

II. THE DRAFTING AND ADOPTION OF THE UN STANDARDS AND NORMS
ON JUVENILE JUSTICE
The production of a United Nations standard and norm on crime prevention and criminal justice generally
goes through the following stages:
an initiative comes from individual experts or organizations;a draft is prepared;
the draft is discussed at one or more international meetings;
the draft is discussed at the United Nations Commission on Crime Prevention and Criminal Justice(or earlier, the United Nations Committee on Crime Prevention and Control),the draft is discussed at a quinquennial UN Congress on Crime Prevention and Criminal Justice andits preparatory bodies, andthe draft is submitted to the Economic and Social Council and/or the General Assembly for adoption.
This can be illustrated by the evolution of the four main standards and norms on juvenile justice.13
The Beijing Rules. The idea for drafting the Beijing Rules arose during the Sixth United Nations Congress
discussions on “Juvenile Delinquency: Before and After the Onset of Delinquency”.14 The report of theCongress called for the development of “model rules on juvenile justice administration”. The UN Secretariat
Although they are not specifically focused on juvenile justice, some of the more general UN standards and norms apply also inthe context of the juvenile justice system: the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo
Rules), the United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, the Standard
Minimum Rules for the Treatment of Prisoners, the United Nations Rules for the Treatment of Women Prisoners and Noncustodial Measures for Women Offenders (the Bangkok Rules), and the United Nations Principles and Guidelines on Access to
Legal Aid in Criminal Justice Systems. Furthermore, a number of applicable human rights instruments, although notparticularly tailored to juvenile justice, form part of the international and/or regional legal framework: the International
Covenant on Civil and Political Rights, the Convention against Torture, the European Convention on Human Rights andFundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and Peoplesʼ Rights (theBanjul Charter), the African Charter on the Rights and Welfare of the Child, and the African Youth Charter. Reference can also
be made to the International Labour Organization Convention concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour (Convention 182) of 1999.
9
General Assembly resolution 44/25 of 20 November 1989.
10
To take the example of Japan, which ratified the CRC on 22 May 1994, three reports have been submitted, in, respectively,
1998, 2004 and 2008. The fourth periodic report was to have been submitted to the Committee by 21 May 2016 but at the time ofthis writing (January 2017) the report has not appeared on the Committeeʼs website, <http://tbinternet.ohchr.org/_
layouts/TreatyBodyExternal/Countries.aspx?CountryCode=JPN&Lang=EN>.
11
Committee on the Rights of the Child, General Comment No. 10 (2007), Childrenʼs rights in juvenile justice, 25 April 2007
(CRC/C/GC/10).
12See, for example, Joutsen and Graycar 2012.
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requested that Professor Horst Schüler-Springorum prepare a draft for such model rules, which he thenpresented to the United Nations ad hoc Meeting of Experts on Youth, Crime and Justice held on 2 ‒ 8
November 1983 in Newark, New Jersey. Following extensive rounds of consultations, including within theframework of a five-week international seminar held at UNAFEI in 1983, the draft “Standard Minimum Ruleson the Administration of Juvenile Justice” were discussed at the Interregional Preparatory Meeting held at
Beijing,15 and then at the Seventh UN Congress in Milan. On the recommendation of the Seventh UN
Congress, the Beijing Rules were adopted by the General Assembly.16
The Beijing Rules provide member states with guidelines on the elaboration of the juvenile justice system.
It sets out a number of fundamental principles:the guiding principle of juvenile justice should be to further the well-being of the juvenile and his or
her family (the importance of fair and human treatment) (e.g. rules 1, 5.1, 10.3, 13.5, 14.2, 17.1, 26.2),
non-discrimination in the application of the Beijing Rules (rules 2.1 and 26.4),
ensuring that the age of criminal responsibility is not fixed at too low an age level (rule 4).
the proportionality principle (rules 5.1 and 17.1),
the use of discretion (rule 6),
the protection of basic procedural safeguards (rules 7.1 and 15.1),
the protection of privacy and confidentiality (rules 8 and 21),the possibility of release should be considered as soon as possible (rule 10.2),
the use of diversion (rule 11),taking the minorʼs opinion into consideration (rule 11.3),
detention should be used only as a last resort, and for the shortest possible period (rule 13.1),
deprivation of liberty should be used only for extremely serious cases (rule 17.1),
no capital or corporal punishment should be used (rules 17.2 and 17.3),
the use of a large variety of disposition measures (rule 18.1),
institutionalisation should be used only as a last resort (rule 19),
avoidance of unnecessary delay (rule 20),the need for professionalism and training (rule 22), andthe objective of measures should be rehabilitation (rules 24 and 26.1).
The Riyadh Guidelines. Although some of the experts involved in the drafting of the Beijing Rules argued
that prevention is an essential part of juvenile justice, others regarded this as too broad an issue, and wanted
to focus on the structure and operation of the juvenile justice system.17 As a result, the Beijing Rules do notinclude provisions on prevention. Nonetheless, the drafters recognized the importance of the issue. On thesame day as the General Assembly adopted resolution 40/33 approving the Beijing Rules, the General
Assembly adopted resolution 40/35, which drew attention to the need for standards and norms on theprevention of juvenile delinquency. “Specific measures therefore had to be provided for the large number ofthe young who were not in conflict with the law but who were abandoned, neglected, abused and, in general,
were endangered or at social risk”.18
The first draft for what became the Riyadh Guidelines was prepared by Professor Allison Morris. The
draft was circulated among experts in juvenile justice, and then discussed at an International Meeting ofExperts on the development of United Nations Draft Standards for the Prevention of Juvenile Delinquency,
held at the Arab Security Studies and Training Centre19 in Riyadh on 28 February ‒ 1 March 1988. From
Reference can also be made to the Guidelines on Justice for Child Victims and Witnesses of Crime (ECOSOC 2005), and themodel law on juvenile justice published by the UNODC (Justice in Matters Involving Children in Conflict with the Law. Model
Law on Juvenile Justice and Related Commentary, UNODC 2013). The development of the CRC took somewhat longer than was
the case with the four standards and norms on juvenile justice referred to here, but went through somewhat similar stages.
Essentially, the process began with the 1959 Declaration on the Rights of the Child, and ended with the adoption of theConvention by the General Assembly in 1989. The Convention entered into force on 2 September 1990. More generally on
United Nations standards and norms on crime prevention and criminal justice, see Clark 1994, and Joutsen 1999 and 2016.
14
A/CONF.87/14/Rev.1.
15
A/CONF.121/IPM/1, paras 55 and 56.
16
General Assembly resolution 40/33 of 29 November 1985.
17
Schüler-Springorum, p. 4.
18
A/CONF.144/IPM.3, para 4.
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there, the draft went to the regional preparatory meetings and the respective interregional preparatory
meeting for the Ninth Congress, and then on to the General Assembly for adoption.20
The Riyadh Guidelines seek to cover the role of different sectors in the prevention of juvenile delinquency.
The key points and sectors are the following:
furthering the well-being of the juvenile and his or her family (fair and human treatment) (e. g.
guidelines 4 and 46),
the need for comprehensive prevention plans (guideline 9),
the importance of the family and support to the family (guidelines 11 ‒ 19),
the importance of education (guidelines 20 ‒ 31),
the importance of community measures (guidelines 32 ‒ 39),
the role of mass media (guidelines 40 ‒ 44),
institutionalization of young persons should be a measure of last resort and for the minimum
necessary period (guideline 46), anddevelopment of the appropriate legislation and juvenile justice administration (guidelines 52 ‒ 59).
The Havana Rules. The International Covenant on Civil and Political Rights, the Standard Minimum Rules
for the Treatment of Prisoners, and the Beijing Rules, are designed in part to considerably reduce theincarceration of children and youth. However, already when these instruments were adopted, it was clearthat incarceration of children and youth would remain a widespread practice. The Havana Rules, instead of
calling for better and more prisons for juveniles, were designed to encourage the use of alternatives toimprisonment, and to ensure that juveniles in custody have their basic rights protected.21 These Guidelines
were developed by an Open-Ended Working Group of Non-Governmental Organizations established by
Defence for Children International in cooperation with the UNODC. The text was circulated for comment,
following which the draft was developed by the Max-Planck Institute for Foreign and International Criminal
Law.22 As with the Riyadh Guidelines, the draft went to the regional preparatory meetings and the respective
interregional preparatory meeting for the Ninth Congress for discussion, and then on to the General
Assembly for adoption.23
The Havana Rules define juveniles as persons under the age of 18 years, and defines deprivation of liberty
as any form of detention or imprisonment or the placement of a person in a public or private custodial setting,from which this person is not permitted to leave at will, by order of any judicial, administrative or other publicauthority (Rule 11). The Havana Rules are intended to counteract the detrimental effects of deprivation ofliberty by ensuring respect for childrenʼs rights. They set out a number of fundamental principles that closely
track those of the Standard Minimum Rules for the Treatment of Prisoners (for example in respect of pretrial detention, admission to juvenile facilities, classification, the physical environment and accommodation,
education, vocational training and work, recreation, religion, medical care, limitations on physical restraint
and the use of force, disciplinary procedures, inspections and complaints, personnel), but take into
consideration the special situation of juveniles:
deprivation of liberty should be a disposition of last resort and for the minimum period (rules 1, 2 and17),
non-discrimination in the application of the Havana Rules (rule 4),
furthering the well-being of the juvenile (rehabilitation) (e.g. rules 12 and 32),
guarantee of basic procedural safeguards (e.g. rules 18(a) and 70),
protection of confidentiality (rule 19),
separation of juveniles from adults (rule 29),
encouragement of the establishment of small open facilities (rule 30),
juveniles deprived of their liberty should be prepared for release (rules 38, 79 and 80),contacts with families and the wider community must be maintained (e.g. rule 59),
Now known as the Naif Arab University for Security Sciences.
General Assembly resolution 45/112 of 14 December 1990. See A/CONF.144/16, para 26.
21
A/CONF.144/IPM.3, para 10.
22
A/CONF.144/IPM.3, paras 3 and 65-67.
23
General Assembly resolution 45/113 of 14 December 1990. See A/CONF.144/16, para 26.
19
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no corporal punishment or solitary confinement (rules 67 and 87),
the need for professionalism and training (rules 81, 85 and 86), andthe professionalism and training of personnel (rules 81, 85 and 86).
The Vienna Guidelines. The entry into force of the Convention on the Rights of the Child in 1990 imposed
obligations on states parties. It also provided a basis for cooperation among not only the states parties, butalso different UN agencies (such as the UNODC, the Centre for Human Rights, the United Nations Childrenʼs
Fund and the Committee on the Rights of the Child), as well as a broad range of nongovernmentalorganizations, professional groups, the media, academic institutions and other stakeholders. In order toprovide guidelines for this cooperation, ECOSOC resolution 1996/13 called for a plan of action. This wasdrafted at an expert group meeting held in Vienna on 23 - 25 February 1997. The draft was submitted to theCommission on Crime Prevention and Criminal Justice two months later, and during the autumn of that same
year, the Vienna Guidelines were adopted by ECOSOC.24
The Vienna Guidelines are intended to assist member states in implementing the CRC, and in using andapplying the standards and norms in juvenile justice (para 5). They are divided intomeasures of general application (paras 10 ‒ 11),
specific targets (paras 12 ‒ 25),
measures to be taken at the international level (para 26 ‒ 29),
mechanisms for the implementation of technical advice and assistance projects (paras 30 ‒ 40),
further considerations in the implementation of country projects (paras 41 ‒ 42), andchild victims and witnesses (43 ‒ 53).

III. ARE THE STANDARDS AND NORMS LEGALLY BINDING?
Are the United Nations standards and norms on juvenile justice legally binding? Do the member states of
the United Nations have to incorporate their provisions into their laws and practices, and are individual
practitioners in the criminal justice system ‒ police officers, juvenile court judges, social workers, the staff ofinstitutions and others ‒ required to follow them?25
The dominant view is that the UN standards and norms are part of “soft law” and are thus not legallybinding. They only embody an earnest request to their addressees (member states, members of a criminal
justice profession, other stakeholders) to apply the contents, and not a legal obligation to undertake a certain
course of action.26 One practical implication of this is that if a public official (or an entire state) acts contrary to
a UN standard and norm (but not contrary to “hard law”), then the child or juvenile subjected to such action
has no legal recourse on this basis alone. He or she does not have legal standing to complain to a superior, or
to turn to a court in order to have the decision overturned.
This does not mean that standards and norms, as “soft law”, are meaningless, and have no practical effect.
The significance of soft law, including standards and norms, does not lie in any assumed legally binding effect.
The significance lies elsewhere, on both the national and the international level.
On the national level, UN standards and norms may have an instrumental value in guiding national
development.27 They may be used as clinching arguments by decision-makers in individual jurisdictions whenthese decision-makers seek to justify certain courses of action that they would have preferred even if thestandard or norm did not exist. When selecting from among various alternative approaches to achieving acertain end, the decision-makers may thus defend their choice by referring to specific provisions in, for
ECOSOC resolution 1997/30 of 21 July 1997.
A fuller discussion of whether or not standards and norms are legally binding is provided in Joutsen 2016.
26
Castaneda 1969, pp. 7-8 and 193-195. It may be noted that some authorities in international law deny the entire existence of“soft law”. See in particular Klabbers 1996. Essentially, he argues that either something is law, or it is not; there is no intervening
category of “soft law”, nor is there a need for such a concept.
27
The most noted example of a United Nations standard and norm guiding national development is the Standard Minimum
Rules for the Treatment of Prisoners. It has clearly guided national practice in corrections and, in several cases, helped bringabout legal reform.
24
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example, the Beijing Rules, the Riyadh Guidelines, or the Havana Rules.
Similarly, UN standards and norms can also be used by citizens, non-governmental organizations andother stakeholders in trying to influence their government to change laws and policy in a certain direction.
It is difficult to analyse the actual impact of UN standards and norms on the domestic level, due to anumber of factors: the absence of an obligation to report, the heterogeneity of the criminal justice systems ofdifferent States, the possibility of different interpretations of the same text, and the difficulty in determining if
a specific change in national law, policy or practice was due to the influence of a United Nations standard andnorm, or to other factors.
Nonetheless, many reports from States to the United Nations cite examples of the impact, and theliterature shows several further examples of impact. In many States, the UN standards and norms are
becoming part of the national discourse on crime prevention and criminal justice.
On the international level, in turn, “soft law” may be seen as an intermediate stage in the formulation ofideas and concepts that may in time emerge as “hard law”, in the form of international agreements.
When ideas are embodied in standards and norms, the recognition and declaration of certain principles
and even detailed rules may be intended to have a direct influence on the practice of states. If this happens,
they contribute to the creation of customary international law, which is widely recognized as binding onstates.28 Standards and norms, even if they are not in themselves binding, may thus become a source ofinternational law, in particular if they are drafted in the form of an obligation (e.g. “States shall” do something,as opposed to the wording “States may consider” doing something, or “States are invited” to do something).

IV. FROM SOFT LAW TO HARD LAW: THE IMPACT OF THE CONVENTION
ON THE RIGHTS OF THE CHILD
The development of customary international law is often a long process, requiring decades. There is also afast-track possibility: soft law elements may find their way into hard-law international treaties. A clear
example in juvenile justice is provided by certain provisions of soft law UN standards and norms on juvenile
justice which have found their way in the space of just a few years into the hard law Convention on the Rightsof the Child, and into the practice of the Committee on the Rights of the Child.
The provisions of the Convention on the Rights of the Child (CRC) that are relevant to juvenile justice canbe divided roughly into three categories.29 Some provisions lay out the basic rights and principles to befollowed in practice: non-discrimination (article 2), the best interests of the child (article 3), the right to life,
survival and development (article 6), and the right to be heard (article 12).
A second category of provisions deal directly with the juvenile justice context: article 37, which deals ingeneral with deprivation of liberty, and article 40, on the treatment of a child in conflict with the law.
The third category of provisions applies to all children, and these provisions are considered particularly
relevant if a child has been placed in an institution and is thus in a heightened state of vulnerability: the rightof children in conflict with the law to maintain their relationship with their families (article 9), the right toexpress their views and to be heard (articles 12 and 13), the right to exercise their religion (article 14), theright to be protected from physical or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse (article 19), and the right to live in a healthy
environment and receive appropriate treatment in case of illness (article 24).
As mentioned already above, in addition to reviewing implementation of the CRC in individual states
parties and providing them with extensive recommendations,30 the Committee provides guidelines ‒ “General
Comments” ‒ for implementation in specific areas. The General Comments are recommendations, and are not
Castaneda 1969, pp. 19 and 168-169.
This distinction is made in General Comment no. 10, para. 4.
30
In the case of Japan, the most recent publicly available recommendations are given in CRC/C/JPN/CP/3 (2010).
28
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binding. However, they have proven influential. General Comment no. 7 of the Committee deals with theimplementation of the rights under the CRC during early childhood, and General Comment no. 12 deals withthe right of the child to be heard. Special reference, however, should be made to General Comment No. 10(2007), which deals with the rights of children in respect of juvenile justice.
Two examples can be provided of the integration of soft law UN standards and norms into the hard law
Convention on the Rights of the Child, and into the practice of the Committee on the Rights of the Child.31 The
first deals with setting the age of criminal responsibility, and the second with the right of the child or juvenile
to be heard.
There is considerable disparity around the world in respect of the age of criminal responsibility. Many
countries have set an absolute minimum age of criminal responsibility, often 14 or 16 years, below which noone may be tried or punished for criminal conduct. Other countries use two age limits, with a higher age limit
at which all persons will be presumed to have full criminal responsibility, and a lower age limit above which aperson can be treated either as a juvenile or an adult, depending on the circumstances and the seriousness ofthe conduct. Finally, there are countries where quite young children, for example aged six or seven, can beheld to be criminally liable.32
Beijing rule 4 calls upon states to ensure that the age of criminal responsibility is not fixed “at too low an
age level”. The Convention on the Rights of the Child has integrated this into art. 40(3), which requires thatstates parties establish “a minimum age below which children shall be presumed not to have the capacity to
infringe the penal law”. Neither of these provisions can be seen to provide clear guidance as to what, exactly,that age of criminal responsibility should be.
However, in its General Comment 10, the Committee on the Rights of the Child does seek to provide
guidance on the legislative technique to be used in establishing age limits for criminal responsibility. It evenspecifies what it considers to be the internationally accepted minimum age of criminal responsibility:33“Rule 4 of the Beijing Rules recommends that the beginning of MACR [minimum age of criminal
responsibility] shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental andintellectual maturity. In line with this rule 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 internationally acceptable 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 areencouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and tocontinue to increase it to a higher age level.”34
The right to be heard, in turn, is particularly important given the diversity of procedures and structures
for dealing with children in conflict with the law: child welfare boards, administrative hearings, juvenile
courts and so on.
Beijing rule 14.2 guarantees juveniles the right to be heard: “The proceedings shall be conducive to thebest interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow thejuvenile to participate therein and to express herself or himself freely.”
Article 12 of the CRC has transformed this right to be heard into hard law:

Many more examples could be cited. Examples include the definition of “competent, independent and impartial authority”, theinterpretation of the childʼs right to legal assistance, the right of the parents to be present during legal proceedings, the childʼsright to be protected against self-incrimination, the childʼs right to privacy, the definition of the phrase “shortest possible period
of detention”, the need to prioritize diversion and non-custodial sanctions, the right of appeal, and the prohibition of cruel,inhuman or degrading treatment.
32
General Comment 10 (2007), para. 30.
33
General Comment 10 (2007), para. 32.
34
General Comment 10 (2007) goes on to call upon countries that do set the minimum age of criminal responsibility at 12 years toraise this age even higher.
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1.

States Parties shall assure to the child who is capable 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 be provided 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 the procedural rules of national law.

In its conclusions on the reports of states parties, the Committee on the Rights of the Child has often
returned to the childʼs right to be heard, and recommended that laws be changed, policy be developed, moreresources be given, and in general closer attention be given to this right in practice, and not just in law. In its
General Comment 10, furthermore, the Committee has clarified its position on the childʼs right to be heard inany proceedings regarding him or her:35“The child should be given the opportunity to express his/her views concerning the (alternative)
measures that may be imposed, and the specific wishes or preferences he/she may have in this regard
should be given due weight. Alleging that the child is criminally responsible implies that he/she should becompetent and able to effectively participate in the decisions regarding the most appropriate response toallegations of his/her infringement of the penal law ... It goes without saying that the judges involved are
responsible for taking the decisions. But to treat the child as a passive object does not recognize his/herrights nor does it contribute to an effective response to his/her behaviour. This also applies to theimplementation of the measure(s) imposed. Research shows that an active engagement of the child in this
implementation will, in most cases, contribute to a positive result.”
This clarification of the Committeeʼs position shows how the Committee combines logical reasoning(“alleging that a child is criminally responsible implies that he or she is competent to act, and therefore he or
she should have a right to be heard”; “treating a child as a passive object does not recognize his or her rights
or contribute to an effective response”) and research results (“research shows that in most cases a positive
result will be achieved if the child is actively engaged in the process”).

V. CLOSING COMMENTS
One hundred years ago, at the time the League of Nations was founded, the concern was with “children
hovering at the verge of criminality”. The basic approach was quite paternalistic: the child was indeed
regarded as a “passive object” who should be guided on the way to his or her full role as a well-adjusted
citizen. It was also assumed that each state was free to develop its own juvenile justice system, although
there was a growing interest in seeing how other states were dealing with child and juvenile offenders.
The United Nations standards and norms on juvenile justice mark a change in approach. They are a
distillation of “what works” in different legal and administrative systems, and at different stages ofdevelopment. They have been formulated as a benchmark by which the stakeholders involved in juvenile
justice systems around the world ‒ including the juveniles themselves ‒ can assess how well these systems
are responding to juveniles who are alleged to have committed crimes, or who otherwise are seen as being“on the verge of delinquency”.
The UN standards and norms have also contributed to hard law, most noticeably in the form of theConvention on the Rights of the Child, and the work of the Committee on the Rights of the Child. The
Committee, in particular, has taken an active but carefully considered role in building on the UN standards
and norms as well as the text of the Convention in order to provide guidance to states parties on how toguarantee of procedural and substantive rights, the importance of limiting the scope of definition ofdelinquency, how to increase the use of diversion and lessen the use of imprisonment or other severe andpunitive sanctions for juveniles, and in general how to promote the well-being of juveniles and their families.
Individual states continue to hold their sovereign right to develop their own juvenile justice system. But

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General Comment 10 (2007), para. 45.

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we have learned considerably from one anotherʼs successes (and failures) over the course of 150 years. One
result is that international experience is guiding individual states in finding the right and the most effective
response ‒ through the exchange of experience, through soft law, and ultimately through hard law.
References
A/CONF. 121/14 Youth, Crime and Justice. Draft United Nations standard minimum rules for theadministration of juvenile justice, Report of the Secretary-General
A/CONF.121/IPM/1 Report of the Interregional Preparatory Meeting, Beijing, 14-18 May 1984
A/CONF. 144/4, Prevention of Delinquency, Juvenile Justice and the Protection of the Young: Policy
Approaches and Directions, Implementation of the United Nations Standard Minimum Rules on the
Administration of Juvenile Justice, Report of the Secretary-General
A/CONF. 144/16, Prevention of Delinquency, Juvenile Justice and the Protection of the Young: Policy
Approaches and Directions. Working paper prepared by the Secretariat
A/CONF. 144/IPM. 3, Report of the Interregional Preparatory Meeting for the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders on Topic IV: Prevention ofDelinquency, Juvenile Justice and the Protection of the Young: Policy Approaches and Directions, Vienna, 18‒ 22 April 1988
Castaneda, Jorge (1969), Legal Effects of United Nations Resolutions, New York and London
Clark, Roger (1994), The United Nations Crime Prevention and Criminal Justice Program. Formulation ofStandards and Efforts at Their Implementation, Philadelphia 1994
CRC/C/JPN/CP/3 (2010), Committee on the Rights of the Child. Fifty/fourth session. 25 May ‒ 11 June
2010. Consideration of reports submitted by States parties under article 44 of the Convention. Concluding
observations: Japan
Detrick, Sharon (1999), A Commentary on the United Nations Convention on the Rights of the Child,
Martinus Nijhoff: Leiden, available at <https://books.google.co.th/books?id=QB6UB1SCxbsC&printsec=
frontcover&dq=%22The+Rights+of+the+Child%22+history&hl=th&sa=X&ved=0ahUKEwjar4ri0rHRAhW
GsY8KHWFUDoAQ6AEIGDAA#v=onepage&q=%22The%20Rights%20of%20the%20Child%22%20history&
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Doek, Jaap (2008), Juvenile Justice: International Rights and Standards. In Loeber, R., Slot, N. W., van derLaan, P., & Hoeve, M. (Eds.): Tomorrow’s Criminals. The Development of Child Delinquency and Effective
Interventions, pp. 229-246. Bodmin: Ashgate
General Comment No. 10 (2007), Committee on the Rights of the Child, Childrenʼs rights in juvenile justice,
25 April 2007 (CRC/C/GC/10)
Joutsen, Matti (2003), The application of United Nations standards and norms on crime prevention andcriminal justice. Background paper, in Application of the United Nations Standards and Norms on Crime
Prevention and Criminal Justice, Expert Meeting Report, 10 ‒ 12 February 2003, UNODC, pp. 19-44
Joutsen, Matti (2016), International Standards and Norms as Guidance in the Criminal Justice System,
UNAFEI Resource Material Series no. 98, United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders, Fuchu, Tokyo, 2016, pp. 54-67
Joutsen, Matti and Adam Graycar (2012), When Experts and Diplomats Agree: Negotiating Peer Reviewof the UN Convention against Corruption, in Journal of Global Governance, 18(4), pp. 425-439
Klabbers, Jan (1996), The Redundancy of Soft Law, Nordic Journal of International Law 65(2)46165TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTSʼ PAPERS

Redo, Slawomir (2012), Blue Criminology. The power of United Nations ideas to counter crime globally. A
monographic study, HEUNI publication no. 72, Helsinki
Schüler-Springorum, Horst (1983), Report on the Standard Minimum Rules for the Administration ofJuvenile Justice and the handling of Juvenile Offenders, submitted to the United Nations ad hoc Meeting ofExperts on Youth, Crime and Justice, 2 ‒ 8 November 1983, Newark, New Jersey (on file with the author)

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