422 book reviews

Bruce Abramson
A Commentary on the United Nations Convention on the Rights of the Child: Article 2,
The Right of Non-Discrimination, Martinus Nijhoff Publishers, Leiden, Boston:
2008. €85,00. $113.00.

This volume comprises a commentary on Article 2 of the United Nations

Convention on the Rights of the Child 1989 (CRC). It is part of a series of
books entitled ‘A Commentary on the United Nations Convention on the
Rights of the Child’. The aim of the series is to provide an article by article
analysis of all substantive, organisational and procedural provisions of the
CRC and its three Optional Protocols. It is against this background that this
volume scrutinises Article 2 with the intention of ensuring that, in the words
of the author, this most misunderstood of rights is correctly understood. To
achieve this aim, the volume engages in a legal analysis of Article 2, with a
particular focus on paragraph 1, which is based upon established rules of
legal interpretation, transparent lines of reasoning and key legal issues identi-
fied in the literature including de jure and de facto discrimination, direct and
indirect discrimination, purpose or effect, structural discrimination and
affirmative action. The aim of this approach is to elaborate a meaning of the
right of non-discrimination that is contained in Article 2, which is drawn from
international law rather than analyses which are, according to the author,
superficial rhetoric.
Bruce Abramson is amply qualified to write this volume. He is a human
rights lawyer who has specialised in the CRC for over 20 years. Such experience
is reflected in his careful analysis of Article 2.
The volume comprises seven chapters, the first and last being introductory
and concluding chapters. Chapter Two comprises a comparison of the CRC’s
right of non-discrimination with other prohibitions of discrimination found
in Article 2 of the ICCPR and the ICESCR respectively, as well as other prohibi-
tions found in non-binding international agreements, regional agreements,
anti-discrimination clauses and prohibitions inherent in equality provisions.
Running to 111 pages divided into 11 parts, Chapter 3 is the core chapter of this
volume’s analysis of Article 2. Focusing on paragraph 1, this chapter sets out the
scope of the right by considering what is meant by discrimination. In seeking
to answer this question, this chapter utilises the rules of legal interpretation as
set out in the Vienna Convention on the Law of Treaties 1969. Article 2(1) is
then characterised as having three elements (differential treatment on forbid-
den grounds, impairment and protected interests) on the basis that an ele-
ments-approach such as this is essential for good legal analysis. Noting that
Article 2(1) is an umbrella right, Chapter 3 identifies the three functions of the

© koninklijke brill nv, leiden, 2014 | doi 10.1163/15718182-02202009

book reviews 423

right of non-discrimination (prevention of offences to human dignity, a trump

to politics and affirmation of the moral norm of non-discrimination) and in
that way the chapter elaborates how this right acts as a tool to protect human
dignity. After discussing freedom from discrimination as an absolute right and
the justiciability of this right, Chapter 3 notes that there is much confusion
about the right of non-discrimination, which pervades the literature. It sets
about to provide an in-depth exploration of the main sources of such confu-
sion which are identified as stemming from the slippage between rights and
principles, the interrelationship between European law and international law,
the impact of the doctrines of direct and indirect discrimination, purpose or
effect clauses and affirmative action. Chapter 3 then proceeds with an analysis
of how a State can fail to comply with the provisions of Article 2(1), considers
the role of private actors, before concluding with an analysis of what the author
describes as, the ‘taboo grounds of discrimination’ (birth, national origin, sex,
race, religion and disability).
Chapter 4 discusses the scope of Article 2(1) which, it is argued, must be
read in light of Article 1 of the CRC as the State’s obligation to realise the rights
of each child without discrimination extends to each child within its jurisdic-
tion. This means that in situations where the State is exercising state-like pow-
ers, then the State is accountable for the impact of its actions and inactions on
young people. The scope of Article 2(1) is similarly considered in light of Article
4’s recognition of the extent of resources available to the State as it realizes
economic and social rights, and the chapter concludes in this regard that States
are under a duty to seek outside assistance but they are not under a duty to give
assistance. Chapter 5 devotes four pages to considering Article 2(2), which is
described as suffering from poor drafting and also having the unique position
of prohibiting discrimination on account of parental actions. In seeking to
respond to the challenges posed by its unique character, Chapter 5 suggests
that the elements of this right can be framed in terms of two components: a
non-discrimination right and a no-punishment right. Chapter 6, the final sub-
stantive chapter, assesses the work of the Committee on the Rights of the Child
and finds it somewhat lacking. Confusion regarding the nature and status of
the Committee’s statements are explored on the basis that these conceptual
errors have a serious impact on perceptions of Article 2. The chapter also con-
tains a critical analysis of the work of the Committee, observing that it has not
been equally vigilant towards all young people and that there has been a sys-
tematic marginalisation of boys, whilst the discrimination faced by girls has
only been dealt with superficially.
The volume concludes with a challenge to us all to be faithful to the rule of
law; to take international human rights law seriously as law; to take children

international journal of children’s rights 22 (2014) 415-424

424 book reviews

and adolescents seriously as rights-holders; to see past ‘confusion’ and set aside
preconceptions and personal views and also critically to assess the commen-
tary of others as we consider the human dignity of children and adolescents.
The contents of this volume certainly succeed in providing fertile ground to
sustain this challenge and, thus, it is a valuable contribution to the literature
on the right of non-discrimination generally, as well as the child’s right of non-
discrimination in particular.

Claire Breen
Associate Professor in Law, University of Waikato, New Zealand
cbreen@waikato.ac.nz

international journal of children’s rights 22 (2014) 415-424