#16943 - International Children's Rights - Children, Families & the

PROVISIONS
Convention on the Rights of the Child (CRC)	GENERAL	Committee on the CRC has identified four General Principles: (i) Right to non-discrimination (ii) Right to life and development (iii) Right to be heard and taken seriously (Article 12) (iv) Primary consideration of the child’s best interests (Article 3)
	Article 3	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 12	States shall assure to the child who is capable of forming own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with age and maturity
	Article 18	1. States shall use best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. The best interests of the child will be their basic concern. 2. States shall render appropriate assistance to parents in the performance of their child-rearing responsibilities
UN CRC Optional Protocol (Communication Procedure)		Recognising that children’s special and dependent status may create real difficulties for them in pursuing remedies for violations of their rights Three means of enforcement: (i) Enquiry procedure (wide spread abuse); (ii) Inter-state communications; (iii) Individual communication Article 5 (Individual communications): 1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party… 2. Where a communication is submitted on behalf of an individual or group of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent Note: Only 41 parties have also signed the OP to allow individual petitions

SEMINAR NOTES
FOCUS on: (1) The UNCRC (structure and theoretically underpinnings) (2) Notion of “best interests” (meaning and role) (3) Article 12 participation (meaning and role) (4) Enforcement (directly and indirectly, internationally and domestically) (1) The UNCRC Moral authority — most ratified treaty in the world — embodiment of global consensus of the notion that children have rights, and that there are distinctive interests in childhood that require specific attention General Principles: (i) Articles 3 (best interests); (ii) Article 12 (participation); (iii) Article 2 (non-discrimination) and (iv) Article 6 (right to life) Committee: General principle capture the fundamental meaning of the CRC (ie. interpretive principles for the CRC) but are written into the UNCRC itself Tensions — concept versus conceptions of childhood CRC has a concept of childhood (as a distinct time, with distinct rights attached to it) HOWEVER: does not resolve competing conceptions in different member states (childhood as ending at 18 years old, “or as otherwise specified by national law”) Perhaps inevitable (ie. price paid for near-universal ratification) however means that it employs vagueness to disguise tensions that could not be resolved during drafting process — part. in relation to autonomy of children versus duty on State to respect parents’ rights (4) Enforcement (a) Primary enforcement mechanism — country reports Inherently problematic — ambiguities exploited by governments during reporting process Importance of civil society — Committee reliance on civil society to dispel the narratives coming from national governments (b) Communications mechanism (Optional Protocol)
Theoretical Issues — Academic Commentary
*Freeman 2016	Children’s Rights as Human Rights (1) Law as a significant symbol of legitimacy – when enacted, it is an accomplished fact — can change attitudes and behaviour (2) UNCRC constructed the child, for the first time, as a “principal” (ie. subject in their own right) rather than a concern or an object of intervention (cf. “conventional deficit model” — children only as “objects of concern”) Rights concerning: protective measures; civil status; development and welfare; and children in specific circumstances Cluster of participation rights — centred on the normative value of autonomy (persons have a set of capacities that enables them to make independent decisions regarding appropriate life choices) “To believe in autonomy is to believe that everyone’s autonomy is as morally significant as anyone else’s. To respect a child’s autonomy is to treat that child as a person, and as a rights-holder” (3) HOWEVER: To recognise that children’s rights are human rights, and thus to recognise that children are humans, does not mean that we have to overlook the fact that they are also children and thus vulnerable (4) HOWEVER: UNCRC should be seen as “the beginning rather than the final word on children’s rights” (i) Scope too narrow – too little attention on girl child, gay children, indigenous children and citizenship rights (ii) Enforcement procedures too weak Williamson case: Christian parents alleged violation of rights by legislation removing liberty from schools to inflict corporal punishment on children Dispute conceived as one between State (its right to ban corporal chastisement) and parents Children’s’ views neither known nor sought Baroness Hale: “This is, and always has been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no one here…to speak on behalf of the children. The battle has been fought on ground selected by the adults.”
*Tobin 2013	Justifying Children’s Rights NOTING that children’s rights are clearly recognised in international law (esp. UNCRC) HOWEVER concern that children’s rights do not have coherent intellectual foundation (Guggenheim) and remain “under-theorised” (Dixon and Nussbaum) ASK: Can the idea of human rights for children be justified? Argument: Social interest theory of rights offers a good, albeit imperfect justification for the idea of human rights children, as expressed in the CRC (1) During UNCRC drafting, no discussion of moral rights of children Pragmatic: given urgent need to address tragic experiences of world’s children, need to establish conceptual foundations of children’s rights debatable when the was already recognised in international, regional and domestic legal system; and (2) HOWEVER: To evade this question demonstrates “lack of intellectual responsibility” (Freeman) — jeopardises legitimacy Human rights of children consist of three interconnected dimensions: (i) Legal: justification of legal dimension rests on premise that they are recognised as legitimate standards within legal systems (ii) Political: justification of political dimensions rests on advocates’ use of this idea as a tool to assess the legitimacy of measures that impact on children (ie. draws on the claim that the idea of human rights for children is a global enterprise which provides “settled norms of political discourse) (iii) Moral Relying solely on legal and political justifications risks overlooking reality — despite States’ apparent acceptance of human rights for children, remains widespread disagreement as to the moral status of human rights (generally, and for children specifically) Thus: need to address conceptual doubts if the idea of human rights for children is to command loyalty/establish secure intellectual foundation Cannot rely on “self-evidence” nature— in the absence of secure conceptual foundation, children’s rights: risk becoming individual to or rejected by those for whom they are not self-evident; vulnerable to manipulation by those who wish to use them as rhetorical device by which to advance subjective vision of what children’s rights should mean Important: “A right for which there is no recognise conceptual foundation quickly risks becoming an empty rhetorical vessel into which subjective preferences or political agendas may be poured” (3) Pressing need for firm conceptual foundation and moral justification for idea of human rights for children — serves two critical functions: (i) Practical: capacity to assisting in resolving broader dilemmas with respect to meaning of rights and encourage more reflective practice by proponents of children’s rights (ii) Philosophical: potential to dampen opponents’ scepticism about idea of children’s rights (by establishing secure intellectual standing that can address conceptual doubts) and constrain enthusiasm for those for whom idea and meaning of rights self-evident (4) The UNCRC is an “incompletely theorised” agreement (Sunstein) — agreement was reached by consensus in circumstances where there was disagreement as to the reasons/principles underlying the agreement Like all international legal instruments: generated by processes that must accommodate pluralistic moral universe and allow for agreement between States without need for adherence to particular theory of general principles States agreement on the inclusion of children’s rights within the CRC without formal agreement on the specific moral theory justify their approach (ie. States put aside difference to achieve consensus on need to recognise the idea of children’s rights) Example: Different conceptions of childhood — reflected in Article 1 CRC: States agreed on concept of childhood, but unable to agree on...

FOCUS on:

(1) The UNCRC (structure and theoretically underpinnings)
(2) Notion of “best interests” (meaning and role)
(3) Article 12 participation (meaning and role)
(4) Enforcement (directly and indirectly, internationally and domestically)

(1) The UNCRC

Moral authority — most ratified treaty in the world — embodiment of global consensus of the notion that children have rights, and that there are distinctive interests in childhood that require specific attention

General Principles: (i) Articles 3 (best interests); (ii) Article 12 (participation); (iii) Article 2 (non-discrimination) and (iv) Article 6 (right to life)
- Committee: General principle capture the fundamental meaning of the CRC (ie. interpretive principles for the CRC) but are written into the UNCRC itself

Tensions — concept versus conceptions of childhood

CRC has a concept of childhood (as a distinct time, with distinct rights attached to it)
- HOWEVER: does not resolve competing conceptions in different member states (childhood as ending at 18 years old, “or as otherwise specified by national law”)
  - Perhaps inevitable (ie. price paid for near-universal ratification) however means that it employs vagueness to disguise tensions that could not be resolved during drafting process — part. in relation to autonomy of children versus duty on State to respect parents’ rights

(4) Enforcement

(a) Primary enforcement mechanism — country reports
- Inherently problematic — ambiguities exploited by governments during reporting process
- Importance of civil society — Committee reliance on civil society to dispel the narratives coming from national governments
(b) Communications mechanism (Optional Protocol)

Theoretical Issues — Academic Commentary

*Freeman

2016

Children’s Rights as Human Rights

(1) Law as a significant symbol of legitimacy – when enacted, it is an accomplished fact — can change attitudes and behaviour

(2) UNCRC constructed the child, for the first time, as a “principal” (ie. subject in their own right) rather than a concern or an object of intervention (cf. “conventional deficit model” — children only as “objects of concern”)

Rights concerning: protective measures; civil status; development and welfare; and children in specific circumstances
Cluster of participation rights — centred on the normative value of autonomy (persons have a set of capacities that enables them to make independent decisions regarding appropriate life choices)
- “To believe in autonomy is to believe that everyone’s autonomy is as morally significant as anyone else’s. To respect a child’s autonomy is to treat that child as a person, and as a rights-holder”

(3) HOWEVER: To recognise that children’s rights are human rights, and thus to recognise that children are humans, does not mean that we have to overlook the fact that they are also children and thus vulnerable

(4) HOWEVER: UNCRC should be seen as “the beginning rather than the final word on children’s rights”

(i) Scope too narrow – too little attention on girl child, gay children, indigenous children and citizenship rights
(ii) Enforcement procedures too weak

Williamson case: Christian parents alleged violation of rights by legislation removing liberty from schools to inflict corporal punishment on children

Dispute conceived as one between State (its right to ban corporal chastisement) and parents
- Children’s’ views neither known nor sought
Baroness Hale: “This is, and always has been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no one here…to speak on behalf of the children. The battle has been fought on ground selected by the adults.”

*Tobin

2013

Justifying Children’s Rights

NOTING that children’s rights are clearly recognised in international law (esp. UNCRC) HOWEVER concern that children’s rights do not have coherent intellectual foundation (Guggenheim) and remain “under-theorised” (Dixon and Nussbaum)

ASK: Can the idea of human rights for children be justified?

Argument: Social interest theory of rights offers a good, albeit imperfect justification for the idea of human rights children, as expressed in the CRC

(1) During UNCRC drafting, no discussion of moral rights of children

Pragmatic: given urgent need to address tragic experiences of world’s children, need to establish conceptual foundations of children’s rights debatable when the was already recognised in international, regional and domestic legal system; and

(2) HOWEVER: To evade this question demonstrates “lack of intellectual responsibility” (Freeman) — jeopardises legitimacy

Human rights of children consist of three interconnected dimensions:
- (i) Legal: justification of legal dimension rests on premise that they are recognised as legitimate standards within legal systems
- (ii) Political: justification of political dimensions rests on advocates’ use of this idea as a tool to assess the legitimacy of measures that impact on children (ie. draws on the claim that the idea of human rights for children is a global enterprise which provides “settled norms of political discourse)
- (iii) Moral
Relying solely on legal and political justifications risks overlooking reality — despite States’ apparent acceptance of human rights for children, remains widespread disagreement as to the moral status of human rights (generally, and for children specifically)
- Thus: need to address conceptual doubts if the idea of human rights for children is to command loyalty/establish secure intellectual foundation
  - Cannot rely on “self-evidence” nature— in the absence of secure conceptual foundation, children’s rights:
    - risk becoming individual to or rejected by those for whom they are not self-evident;
    - vulnerable to manipulation by those who wish to use them as rhetorical device by which to advance subjective vision of what children’s rights should mean
  - Important: “A right for which there is no recognise conceptual foundation quickly risks becoming an empty rhetorical vessel into which subjective preferences or political agendas may be poured”

(3) Pressing need for firm conceptual foundation and moral justification for idea of human rights for children — serves two critical functions:

(i) Practical: capacity to assisting in resolving broader dilemmas with respect to meaning of rights and encourage more reflective practice by proponents of children’s rights
(ii) Philosophical: potential to dampen opponents’ scepticism about idea of children’s rights (by establishing secure intellectual standing that can address conceptual doubts) and constrain enthusiasm for those for whom idea and meaning of rights self-evident

(4) The UNCRC is an “incompletely theorised” agreement (Sunstein) — agreement was reached by consensus in circumstances where there was disagreement as to the reasons/principles underlying the agreement

Like all international legal instruments: generated by processes that must accommodate pluralistic moral universe and allow for agreement between States without need for adherence to particular theory of general principles
- States agreement on the inclusion of children’s rights within the CRC without formal agreement on the specific moral theory justify their approach (ie. States put aside difference to achieve consensus on need to recognise the idea of children’s rights)
Example: Different conceptions of childhood — reflected in Article 1 CRC: States agreed on concept of childhood, but unable to agree on...

#16943 - International Children's Rights - Children, Families & the State

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