Can there be any universal children's rights?

Abstract

The article questions the normative universality of children's rights by considering the ideal definition of childhood implicit in the UN Convention on the Rights of the Child and other international law documents. It questions whether this definition has any universal purchase in light of different conceptions of childhood held across the world. The article distinguishes between rights that children have as human beings, and rights they are regarded as having by virtue of their age. The latter are regarded as problematic and the article illustrates this with examples that challenge the conception of childhood underlying the CRC. The article presents alternatives that may conflict with the assumptions underlying the CRC, and challenges the universal nature of the rights enshrined.

Notes

This question could of course also be asked about adults, and further raises the question of what it means to be a child or to be an adult to children themselves. In the case of children however, the question is presumed to be answerable, but answers are usually given for children, rather than by children.

V. Pupavac, ‘The Infantilization of the South and the UN Convention on the Rights of the Child’ in H.J. Steiner and P. Alston (eds), International Human Rights in Context, 2 nd ed. (Oxford: Oxford University Press 2000), p.517.

The details of the centuries-old debate between choice and interest theory cannot be addressed in the context of this article, but for a detailed account of the many dimensions of what is at issue between them see M.H. Kramer, N.E. Simmonds, H. Steiner, A Debate Over Rights (Oxford: Clarendon Press 1998).

See B. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Polity Press 2001), p.142.

This term is used to indicate the idea of a moral minimum or baseline set of considerations that would inform the most basic human rights.

The UN Convention on the Rights of the Child (CRC) assumes that children's rights are universalisable, but the question being raised here is whether child-specific rights can be universalised given the diverse experiences of childhood across the world.

Peter Jones remarks in this regard that ‘it is a mark of the ubiquity of rights thinking that a body such as the United Nations, whose member states espoused conflicting ideologies and possessed widely different cultures, should nevertheless have been able to promulgate such a declaration [as the Universal Declaration of Human Rights]’ and ‘it is hard to think of any idea which has achieved a similar stature amongst the international community … Few states are willing to flatly reject the idea of human rights and few governments are willing to present themselves openly to the world as violators of human rights.’ P. Jones, Rights (London: Macmillan 1994) pp.1–2.

For an account of the grounds for opposing the US's ratification, see S. Kilbourne in Steiner and Alston (note 2) p.519. Also see Steiner and Alston pp.520–23 on reservations to the CRC by Germany, Guatamala, Malaysia, United Kingdom, Syria and Singapore as well as Norway's objection to Singapore's reservations.

For an account of the grounds for opposing the US's ratification, see S. Kilbourne in Steiner and Alston (note 2) p.519. Also see Steiner and Alston pp.520–23 on reservations to the CRC by Germany, Guatamala, Malaysia, United Kingdom, Syria and Singapore as well as Norway's objection to Singapore's reservations, p.511.

V. Brittain, ‘Aids turns back the clock for world's children’, The Guardian, Saturday 4 May 2002, p.23.

M.D.A. Freeman, The Rights and the Wrongs of Children (London: Frances Pinter 1983), p.ix.

M.D.A. Freeman, The Rights and the Wrongs of Children (London: Frances Pinter 1983),, p.ix.

Pupavac (note 1), p.517.

A similar point could be made with regard to the disabled and the elderly, who are also especially vulnerable in terms of the abuse of their human rights. However, I leave open the question of whether the special rights of the disabled and the elderly can be questioned in terms of their universality in the same way that the article argues that children's special rights can. Is there some universal experience of being elderly or disabled that would ground universal rights in this regard?

Enshrined in Article 19 of CRC.

See G. Van Bueren, ‘Opening Pandora's Box’, in G. Van Bueren (ed.), Childhood Abused: Protecting Children against Torture, Cruel, Inhuman and Degrading Treatment and Punishment (Dartmouth: Ashgate 1998), p.60.

Articles 24 and 27 of the CRC.

This is not to suggest of course that they cannot be limited at all. No right is absolute in the sense that it cannot be limited under certain circumstances where other rights considerations are brought to bear. However, non-derogable rights cannot be limited on the basis of something discriminatory like race, gender, religion, or indeed age, because what grounds those rights is the agent's humanity, rather than any other consideration.

It may be necessary to note here the distinction that is made between the pejorative child labour and child work. The CRC and other international law aims to protect children from forms of work that will be hazardous to their development and interfere with their education. So not all forms of work for children are regarded as universally impermissible, but only those things which are regarded as falling into the category of ‘the worst forms of child labour’. Human Rights Watch Report: Child Labour (Human Rights Watch 2001), accessed at www.hrw.org/children/labor.htm.

See ‘Contemporary forms of Slavery in Pakistan’, which refers in particular to children (but also adults) who are forced into ‘bonded’ labour for little or no remuneration under dangerous conditions at brick kilns, carpet looms and in agriculture, sometimes for up to 14 hours per day. Human Rights Watch Report, July 1995.

Y. Kolosov, ‘The Rights of the Child’, in J. Symonides (ed.) Human Rights: Concept and Standards (Aldershot: UNESCO/Ashgate 2000).

Worth noting here is the additional point that frequently children are exploited as soldiers precisely because they have qualities of childlikeness and malleability that adults do not, and so can be encouraged to perform horrific acts and endure combat conditions that adult soldiers would perhaps refuse. An example of this kind of cynical manipulation of children in combat is Sierra Leone where children were encouraged to perform atrocities, often under the influence of narcotics to which they had unlimited supplies in order to ensure their compliance.

See J. Dugard, International Law: A South African Perspective (Kenwyn: Juta 1994) pp.332–3.

See note 19.

I use liberty here in the purely libertarian sense to mean that there is no external impediment to choosing to engage in either of these.

Particularly for females this is highly contentious: The Gambia has no lower age limit for marriage, and in Kenya it is nine. For countries that set this limit at 12, 13 and 14, as well as details of Asian countries which have raised this limit to above 20, see K. Tomasevski, ‘Women's Rights’ in Symonides (note 21), p.249.

The phrase used by the 1993 trial judge Mr Justice Morland to describe the murder, and widely reported in the media at the time.

The boys were originally sentenced to a minimum of eight years, but the then (Conservative) Home Secretary Michael Howard, in response to the public outrage generated by the case, raised this to 15 years in 1994. This was overturned by the European Court of Human Rights in 1999 as ultra vires, as it was held that only courts have the competence to set tariffs.

See J. Bristow, ‘Bulger Killers: Childhood on Trial’, in Spiked Liberties (21 June 2001).

Kolosov (note 21), pp.268–9.

I have in mind here the inextricable link between poverty and juvenile crime, as well as the fact that where poverty is widespread, the state may be least well equipped to deal with juvenile offenders.

See C. Stucky, ‘Children with a Hunger to Survive’, The Sunday Independent (22 September 2002) p.13.

I wish to distinguish here polygamy as it relates to a marriage involving more than one woman. I am not aware of a sufficient number of polyandrous cultures in the world to make that practice significant to this discussion.

It is beyond the scope of this article to deal with the subject of female genital mutilation in any detail, but for an egalitarian liberal challenge to the multicultural toleration of the practice, see Barry (note 4) pp.131–46.

Pupavac (note 2) p.517.

Pupavac (note 2), p.518.

T.W. Bennet, A Sourcebook of African Customary Law for Southern Africa (Kenwyn: Juta 1991) p.339.

I owe an acknowledgement to Mandla Seleoane for drawing to my attention Article 29 of the African ‘Banjul’ Charter on Human and Peoples' Rights which states, inter alia, that ‘The individual shall also have the duty … to respect his parents at all times’, which reflects this particular conception of children as the bearers of duties themselves, rather than as the passive subjects of rights.

Arneson and Shapiro, cited in Barry (note 4) p.202. See also Barry pp.201, 208–9 on the concept of parental or communal ‘ownership’ of children.

Both the traditional and the libertarian view that regard children as bearers of duties of respect and the family or community as having power over them have ancient roots. The Roman paterfamilias had absolute power over his children (and wife) to the extent of having the power of life and death over them.

See Barry (note 4) p.124.

Other examples are when parents injure their children, deny their children education, or force them to marry unwillingly. See Barry (note 4) p.201.