UNICEF

What it does

Its work is operational rather than normative: it does not adopt conventions as UNESCO and the ILO do under their constitutions. It works in the field, with and at the request of governments, and its programme areas are the practical content of children's rights.

Child survival and health, including immunisation, the treatment of the commonest childhood killers, and safe water and sanitation.

Nutrition, including the treatment of acute malnutrition and the promotion of breastfeeding.

Education, with particular attention to girls' education and to keeping schooling running in emergencies.

Child protection, against violence, exploitation, trafficking, child labour and child marriage, and for birth registration, which is the legal foundation of every other right a child has and the subject of article 7 of the Convention.

Emergency response, where its supply and logistics operation is among the largest in the system.

Advocacy and data, including the annual reporting on the state of the world's children that supplies the figures on which national and international policy is argued.

The Convention on the Rights of the Child, 20 November 1989

UNICEF's legal significance for a law course comes from this Convention, which names the Fund in its own text.

Article 1, the definition. For the purposes of the Convention a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.

Article 2(1), non-discrimination. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or the parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Article 2(2). States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 3(1), the governing principle. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 3(2). States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of parents and others legally responsible.

Note the wording of article 3(1) exactly. It is a primary consideration, not the primary consideration and not the only one. Candidates misquote this constantly, and the difference matters, because the article requires the child's interests to be weighed first among the considerations without making them conclusive.

Article 43, the Committee. There is established a Committee on the Rights of the Child to examine the progress made by States Parties. It consists of experts of high moral standing and recognized competence in the field covered by the Convention, elected by States Parties from among their nationals, serving in their personal capacity, with consideration given to equitable geographical distribution and to the principal legal systems, elected by secret ballot from a list of persons nominated by States Parties. The Convention as adopted provided for ten experts, and the membership was later increased by an amendment to article 43(2).

Serving in their personal capacity is the point of principle: the Committee is a body of experts, not of State representatives, which distinguishes it from every organ in 3.2 except the Court.

Article 45, where UNICEF appears. In order to foster the effective implementation of the Convention and to encourage international cooperation:

(a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies to provide expert advice, and may invite them to submit reports on implementation in areas falling within the scope of their activities.

(b) The Committee shall transmit to the specialized agencies, the United Nations Children's Fund and other competent bodies any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, with the Committee's observations and suggestions.

(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child.

(d) The Committee may make suggestions and general recommendations based on the information received under articles 44 and 45.

Article 45(a) and (b) are the provision to know. A body created by a resolution of the General Assembly is named in the operative text of a treaty, given a right to be represented before a treaty body, and made the recipient of States' requests for technical assistance. It is an unusual arrangement and it reflects the fact that the Fund had been working on the ground for forty years before the Convention was written.

India ratified the Convention in 1992, and the Convention has among the widest participation of any human rights treaty.

UNICEF and the other bodies

Compared with a specialized agency such as the World Health Organization, whose Constitution is a treaty with its own membership, its own assembly and assessed contributions, UNICEF is an organ of the Assembly financed voluntarily.

Compared with the Committee on the Rights of the Child, UNICEF is operational and the Committee is supervisory. The Committee examines State reports under article 44 and adopts concluding observations and general comments; UNICEF runs programmes. Article 45 connects them.

Compared with a non-governmental organisation as in [Amnesty International and Non-Governmental Organisations], UNICEF is part of the United Nations, and it is named in a treaty, which no ordinary non-governmental body is.

A worked example

State AA ratifies the Convention on the Rights of the Child. Its report to the Committee says that it cannot register births in remote districts for want of administrative capacity. A non-governmental body wishes to be heard. State BB wishes to join UNICEF. A donor offers UNICEF a large sum earmarked for one district in State CC.

The Committee's response to the report. Article 45(b) requires the Committee to transmit to the specialized agencies, the United Nations Children's Fund and other competent bodies any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, with its observations and suggestions. A statement that the State cannot register births for want of capacity indicates such a need, so it goes to UNICEF among others.

May UNICEF be heard by the Committee? Article 45(a) entitles the specialized agencies, the United Nations Children's Fund and other United Nations organs to be represented at the consideration of provisions falling within their mandate, and the Committee may invite them to give expert advice and to submit reports.

The non-governmental body. Article 45(a) allows the Committee to invite other competent bodies as it may consider appropriate to provide expert advice, so its participation depends on the Committee's invitation and not on any right.

May State BB join UNICEF? The question is misconceived. UNICEF has no membership: it is a subsidiary organ established by the General Assembly under article 22 of the Charter, and every Member of the United Nations participates through the Assembly and through the Economic and Social Council, which elects the Executive Board.

The earmarked donation. UNICEF is financed by voluntary contributions, so earmarking is lawful and ordinary. It is also the standing difficulty of a voluntarily funded body: donors' preferences, and not only assessed need, shape where the money goes.

Change one fact: State AA argues that the best interests of the child must always prevail over every other consideration. Article 3(1) does not say so. It provides that the best interests of the child shall be a primary consideration in all actions concerning children, which requires them to be weighed first among the considerations without making them conclusive against all others.

Distinctions table

What it does NOT mean

UNICEF is not a specialized agency. It has no constituent treaty and no relationship agreement under article 63.

It has no member States. It is an organ, and States participate through the Assembly and the Economic and Social Council.

It is not funded from the regular budget. Its income is voluntary.

It does not adopt conventions. The Convention on the Rights of the Child was adopted by the General Assembly, not by UNICEF.

Article 3(1) does not make the child's interests paramount over everything. They are a primary consideration.

The Committee on the Rights of the Child is not UNICEF. The Committee supervises the treaty; UNICEF runs programmes, and article 45 links them.

Limits and criticism

Voluntary funding makes the Fund donor-driven. Earmarked contributions direct money to the countries and the causes that donors favour, which is not necessarily where the need is greatest, and the Fund cannot plan on a secure budget.

Operational presence depends on the host State's consent. UNICEF works with governments, which means it works in the space a government allows, and its ability to report frankly on that government is constrained by its need to keep working there.

Its legal foundation is fragile in form, since a subsidiary organ exists at the Assembly's pleasure, though in practice a body of UNICEF's age and standing is not at risk.

The Convention it serves has the widest participation and among the weakest enforcement. The Committee examines reports and issues observations; it cannot compel, and the gap between near-universal ratification of the Convention and the condition of children in many States Parties is the standing criticism of the treaty-body method.

Quick revision

A subsidiary organ, established by the General Assembly on 11 December 1946 under Charter articles 7(2) and 22, originally the United Nations International Children's Emergency Fund for children in countries devastated by the Second World War, its mandate later made permanent and general.

Not a specialized agency: no constituent treaty, no member States, no assessed contributions, financed wholly by voluntary contributions, reports through the Economic and Social Council to the General Assembly, and may be restructured by resolution.

Work: child survival and health, nutrition, education with attention to girls, child protection including birth registration, emergency response, advocacy and data.

Convention on the Rights of the Child, 20 November 1989. Article 1: a child is every human being below eighteen unless majority is attained earlier under the applicable law. Article 2: non-discrimination on any ground including the status or opinions of the child's parents. Article 3(1): the best interests of the child shall be a primary consideration in all actions concerning children, by public or private welfare institutions, courts, administrative authorities or legislative bodies.

Article 43: the Committee on the Rights of the Child, experts of high moral standing and recognized competence, elected by States Parties by secret ballot from among their nationals, serving in their personal capacity, with regard to equitable geographical distribution and the principal legal systems; ten as adopted, later increased.

Article 45: the specialized agencies, the United Nations Children's Fund and other United Nations organs are entitled to be represented, may be invited to give expert advice and to submit reports; the Committee transmits State reports indicating a need for technical advice or assistance; may recommend studies; may make suggestions and general recommendations.

Test yourself

1. Is UNICEF a specialized agency? Explain the difference.

No. A specialized agency, under article 57 of the Charter, is an organisation established by intergovernmental agreement with wide international responsibilities in economic, social, cultural, educational, health and related fields as defined in its basic instrument, brought into relationship with the United Nations under article 63. UNICEF was established by a resolution of the General Assembly of 11 December 1946 under the power in articles 7(2) and 22 of the Charter to create subsidiary organs, so it has no constituent treaty and no relationship agreement. The consequences are that it has no member States, no assessed contributions, and no separate legal personality of its own, being an organ of the United Nations; that it is financed wholly by voluntary contributions; and that the Assembly which created it may restructure or abolish it by resolution.

2. How is UNICEF financed, and why does it matter legally?

Wholly by voluntary contributions, from governments, from intergovernmental bodies and from private donors, and not from the regular budget apportioned among Members under article 17(2) of the Charter. It matters because the method of financing shapes the body. An organisation that must raise its budget from willing donors is exposed to donors' priorities, particularly where contributions are earmarked for a country or a programme, cannot plan on a secure income, and has an incentive to maintain relations with the governments and donors on whom it depends. It also explains institutional features that no specialized agency has, including national committees and public fundraising.

3. Where does UNICEF appear in the Convention on the Rights of the Child?

In article 45. Paragraph (a) entitles the specialized agencies, the United Nations Children's Fund and other United Nations organs to be represented at the consideration of the implementation of such provisions of the Convention as fall within the scope of their mandate, and permits the Committee to invite them and other competent bodies to provide expert advice and to submit reports on implementation in areas within their activities. Paragraph (b) requires the Committee to transmit to those bodies any reports from States Parties containing a request, or indicating a need, for technical advice or assistance, with its own observations and suggestions. That is a striking arrangement, because a body created by a resolution of the General Assembly is named in the operative text of a treaty and given a procedural role before its supervisory committee.

4. State the general principles in articles 2 and 3 of the Convention.

Article 2(1) requires States Parties to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status; and article 2(2) requires all appropriate measures to protect the child against discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the child's parents, legal guardians or family members. Article 3(1) provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration, and article 3(2) requires States Parties to ensure the child such protection and care as is necessary for his or her well-being. The words of article 3(1) are a primary consideration, not the primary consideration, so the child's interests must be weighed first among the considerations without being conclusive.

5. Describe the Committee on the Rights of the Child.

Article 43(1) establishes it for the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the Convention. By article 43(2) it consists of experts of high moral standing and recognized competence in the field covered by the Convention, elected by States Parties from among their nationals and serving in their personal capacity, with consideration given to equitable geographical distribution and to the principal legal systems; the Convention as adopted provided for ten members and the number was later increased by amendment. Article 43(3) provides for election by secret ballot from a list of persons nominated by States Parties. Its members serve as experts and not as representatives of their States, which distinguishes it from the political organs, and its output under article 45(d) is suggestions and general recommendations rather than binding decisions.

6. What does UNICEF actually do, and how does that differ from what UNESCO and the ILO do?

UNICEF is operational. It runs programmes in child survival and health, nutrition, education with particular attention to girls, child protection including birth registration and action against child labour and child marriage, and emergency response, and it produces the data and advocacy on which policy is argued. UNESCO and the International Labour Organisation are, by contrast, standard-setting bodies whose constitutions empower their conferences to adopt conventions and recommendations, article IV(4) of the UNESCO Constitution and article 19 of the ILO Constitution, with an obligation on every Member to lay the instrument before its competent national authority. UNICEF has no such power, because it was not created by a treaty and has no membership of its own; the Convention on the Rights of the Child was adopted by the General Assembly, and UNICEF's role under it is the one article 45 gives it.