Unlike many national constitutions, Germany’s Basic Law (Grundgesetz) does not explicitly enshrine children’s rights. While German jurisprudence does recognise children as subjects of fundamental rights and thus their ability to invoke all of the fundamental rights afforded by the Basic Law, children’s rights are not encompassed in this.
Anchoring children’s rights in the Basic Law would significantly increase the visibility of children’s rights, particularly and importantly in the justice system and in public administration.
The UN Convention on the Rights of the Child was incorporated into Germany's legal order through the legislation approving the UN CRC. Formally, however, the Convention is placed at the level of ordinary federal law (einfaches Recht); it is only the principle of the Basic Law’s openness to international law (Völkerrechtsfreundlichkeit), developed in jurisprudence, that has underscored the importance of the UN CRC.
Among the obligations arising to states parties in article 4 of the UN CRC is that of undertaking appropriate legislative measures to implement children’s rights.
The UN Committee on the Rights of the Child has urged Germany to take all measures necessary to ensure that the UN CRC takes precedence over ordinary federal law. To this end, it has recommended that Germany explicitly recognise children’s rights in its Basic Law.
The National CRC Monitoring Mechanism has been staunchly advocated the incorporation of children’s rights into the Basic Law. In position papers, written statements and press releases, it has pointed out the need to explicitly recognise children’s rights in the Basic Law and analysed the question of which children’s rights principles should be established there, these being the right to non-discrimination in accordance with article 2 of the UN CRC, the best interests of the child as a primary consideration in accordance with article 3, paragraph 1 of the UN CRC, the child’s right to life and development (article 6 of the UN CRC) and children’s right to be heard and have their views taken into account (participation) as required by article 12 of the UN CRC.
The National CRC Monitoring Mechanism engages in conversations with decision-makers in political, research and civil society spheres to encourage the incorporation of children’s rights in the Basic Law.