Posted on January 9, 2019
By Andrea Manoli – Research Scholar at University of Central Lancashire, Cyprus School of Law
Disregard and contempt for human rights have resulted in atrocities outraging the conscience of mankind, but also constituted the advent of an era based on freedoms.
Human rights are said to be the basic standards without which people cannot survive and develop in dignity. Human rights are inherent to the human person, inalienable and universal. Those common standards were set with the adoption of the Universal Declaration of Human Rights in 1948, which gives great moral weight to the fundamental principle that all human beings irrespective of race, religion, social status and other physical physiognomies are to be treated equally and respectfully. The 1948 Declaration is considered to be the first international agreement on the basic principles of human rights and thus possesses historical importance. 1 That said, the Universal Declaration of Human Rights inspired numerous important human rights conventions and treaties including the European Convention on Human rights.2
The Declaration has been a catalyst for the creation of the United Nations Convention on the Rights of the Child (CRC), which directs all the rights contained in the 1948 Declaration in child-centric hard-law.3 The Universal Declaration of Human Rights contains two articles that specifically refer to children. Firstly, article 25(2) provides that “motherhood and childhood are entitled to special care and assistance. All children whether born in or out of wedlock shall enjoy the same social protection.”4 Thus comprehending, for the first time, children as vulnerable and in need of assistance. Secondly, article 26 provides for the right to education, access to education and the aims of such education.5 Nevertheless, the Declaration specifies that “parents have a prior right to choose the kind of education that shall be given to their children”.6 Hence, children are seen as beneficiaries of rights rather than right holders. That said, as part of the framework of human rights law, all human rights are indivisible, interrelated and interdependent. Understanding this framework is important to promoting, protecting and realising children’s rights because the rights and duties contained in the CRC are part of this general framework.7 Consequently, the 1948 Declaration was a catalyst in creating a child-centric international framework. A Convention that possesses particular significance as it redefined the image of ‘child’ and ‘childhood’.
An inclusive international legal document for children:
The United Nations General Assembly adopted the CRC without dissent on 20 November 1989, and instituted it as international law in 1990.8 The CRC constitutes the first international instrument merging minimum standards and inspirational standards for civil, political, social, cultural and economic rights for children, including special protection measures.9 With the exception of the United States, and Somalia, the CRC became the most universally ratified human rights instrument soon after its adoption.10 Nonetheless, Whitehead confirmed the effectiveness of the United States as an active prominent participant in the drafting and development stage, yet never having ratified this much important treaty.11 Nonetheless, as Bennett et all correctly emphasise, the Convention creates challenging environments for governments and civil societies by means of providing significant opportunities and responsibilities.12 The research follows to label these rights as the philosophy of the CRC:
Accordingly, the Convention demonstrates on the one hand, the obligation of the signatory state to protect and promote children’s rights and on the other hand the respect of the responsibilities and opportunities of the parents (or legal guardian).13 In his analysis, Garbarino suggests that although the Convention focuses on the rights of children, it constitutes a fundamental instrument for parents, and to some degree professionals, to recruit the state, the community, and the society to support their children’s needs. Furthermore, it has been established by previous researchers that the general principles of the CRC emphasise the indivisibility and interdependence of the rights, while engaging in a holistic approach aiming to avoid hierarchy or dichotomy in the application of the rights. The treaty laid down state obligations in relation to material basic needs14 and immaterial basic needs,15 the violation of which constitute a blatant and structural one.16 It even codifies the needs to ensure respect for the human dignity of children in criminal proceedings (i.e. Article 40 and Article 23).17 It has been established by previous researches on children’s rights that both Articles 24 and 27 of the 1989 Convention evidences the foundations of the document, which was built upon the principle that quality of life for children should be uncorrelated with parental income and functioning.18 Thus, the State is the primary responsible organ in supporting the access of children to the basic services that promote health and well-being notwithstanding parental limitations.19 Collectively, these studies outline the critical role of parental and national cooperation, the need for a strong national supporting infrastructure and vis-à-vis the participation of children. Accordingly, what the Convention seems to be promoting in first instance is a broader approach more consistent with the value of “equity”, rather than an approach simply counting on rights and parental limitation. Together the literature indicates that, the near universal ratification of the Convention and the transformation of human rights for children into international hard law is to be considered as one of the most successful twentieth-century international projects.20 The CRC clarifies that the signatory parties are bound to take all necessary measures to ensure the implementation of the principles and provisions contained therein. Implementation is the process whereby the signatory parties take necessary actions to ensure the realisation of rights in the CRC for every child within the jurisdiction.21 Yet, the measures used to implement the Convention fall within each state’s discretion.22 Despite the fact that the CRC was also described by mass media as “a careful fabric of compromises and unresolved moral issues, drafted by a 42-nation working group”,23 the enforcement of children’s rights differs significantly across nations and regions, signifying considerable diversity in the interpretation and monitoring of the CRC as well as of the understanding of the concept of “children” itself.24 As Bennett found in her research, different governments rank their responsibilities differently and in accordance with their societal values and needs.25 More recent researches suggest that the incorporation of the Treaty in domestic law is highly reliant upon the constitutional and legal systems of each country, so is the hierarchy of the Treaty within a specific state.26 A broader perspective engaged by the General Assembly, suggests that the Convention holds a transnational character, written by a network including states and international agents equally.27 Additionally, Member states need not only to adhere to the Treaty but also to include it into their national judicial system, in such a way that obliged to “make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike”.28 That said, member states need not only to implement the international law but also spread the awareness and the implication of the treaty. Paris and Bissell, supported that there has been comprehensive legal reform to incorporate the CRC into national law, as many of the signatory parties have ombudsmen or commissioners for children.29 Further, with the incorporation of the Convention within national law, signatory parties are also bound to submit reports containing statements of adopted measures and achieved progress every 5 years to the Committee on the Rights of the Child (hereinafter “the Committee”).30 Hence, the Committee retains the primary international responsibility for monitoring and facilitating the implementation of the CRC within the signatory member states.31 In his investigation of the effectiveness of the reporting cycle, Prior concluded that while these documents provide a rich source of evidence, a researcher should be aware of their limitations and remember that they represent a mere partial position in each country at specific point in time.32
What is a ‘child’
Since the adoption of the CRC the academic world has been preoccupied with the analysis of the childhood image and the general implications of children’s rights discourse on nations. Today, scholarly work on children’s rights is almost inconceivable without considering the CRC as the bearer of the debate. According to Takanishi, the children’s rights field arose significantly as a result of the adoption of the CRC.33 Inevitable debates arose particularly in relation to the autonomy of children. Roose and Bouverne-De Bie stress that the debate on the individual autonomy of children within the spectrum of the children’s rights debate often results in dichotomising relations between parent and child.34 Others, like Evans, refer to the CRC as a “global children’s rights industry”.35 Nevertheless, the interest on the subject of children’s rights is not of mere academic interest. NGOs and official government reports to the Committee on the Rights of the Child contribute to the children’s rights discourse as much as academic work.36 Their work exemplifies the tendencies, the understanding and the context in which the CRC and generally the society comprehend and acts towards children, equally within a broader societal context and legal discourse .
Mathews and Limb showed that several lines of evidence suggest that the “comprehensiveness” of the CRC includes the “3 P’s”: provision, protection and participation, whilst accepting that the extent of participation is limited.37 Thus far, several studies have reported issues of tokenism, unresolved power, child competence, being consulted about relatively trivial matters and the exclusion or minimum participation of some groups of children.38 In other words, despite the historical and legal advances on this dynamic field of research, children’s voices and feelings are still distant. It seems that the question of the British historian Harry Hendrick remained unanswered until today – “can the history of children (childhood) ever be more than that of what adults have done to children and how they conceptualised childhood”?39 Unlike the above researchers, theorists Such and Walker agree that the emergence of children’s rights changed the image of childhood that considers children as autonomous human beings.40 A controversial image, which brought along discrimination to a group of society on the basis of age.41 Yet, Diduck is much more concerned with the “unchildlike sense of autonomy” which might distort the conceptualisation of childhood.42
National Implementation:
Accordingly, societal and ethical concerns are of particular importance when implementing international law into national law, as it is upon the cultural understanding of each diverse region that the judiciary is called upon to apply the CRC. Thus, throughout the years of implementation of the CRC, member states construed National Programmes for Action. The goal of these programmes is to increase enforceability of children’s rights, to impose a strategy for full implementation, to monitor, report and spread awareness.43 In theory, the implementation approach is not debatable, yet in practice the strategy for implementation is a constant technicalisation debate as to the right course of action.44 What no one can do, is to generally agree on the right discourse to the decontectualisation and technicalisation, which arguably beleaguer the CRC and exclude the diverse social, economic and historical context with which children grow up.45 Diversity is not a matter of a “nation-to-nation” standard of living, but a part of a broader contextual sphere. Even age should be considered as a diverse factor, as children respond differently depending on their age, not only upon their environmental influence. Up to this point, Mitchel suggests that there lies a challenge for those attempting to apply the CRC as a tool to eliminate odious forms of discrimination, or to leverage greater freedom from physical and sexual abuse of children.46 The challenge is to think and operate beyond traditional disciplines (i.e. education, law, juvenile justice, psychology, sociology, health, child welfare or politics) and to interrogate new areas of concern that may take one well beyond the socially and politically constructed boundaries.47
Overall, these studies indicate the need of an inter-disciplinary approach for children’s rights. The CRC has been evidently criticized by many disciplines, as it affects more than just the legal domain. The Convention introduced new social notions throughout its body which are controversial and/or understood differently by individuals, societies, regions and nations. Thus far, previous studies have demonstrated that child protection from all form of violence is imperative. Children worldwide are repeatedly maltreated, having their quality of life and development limited, corrupted and distorted by violence, abuse, neglect and exploitation.48 Therefore, there is a widespread agreement amongst the academic cycles signifying the fact that essential changes are needed regarding child protection, aimed at enabling societies to secure survival, well-being, health, and development of children.49 The significance of the CRC can be simply encompassed through the image of 21st century United States immigration practices and Japanese Internment during the 20th century. The US is one of the two countries which have not ratified the CRC on the basis of having a well-founded national legal infrastructure. Nevertheless, the absence of binding international hard law protecting children led to the disturbingly inhumane immigration policy of the US. Families are being separated while untrained personnel are leading children to shelters which have neither an appropriate infrastructure nor properly trained individuals. Nearly 1,500 children have escaped and gone missing from these camps. The practice was abandoned by an executive order in mid-June 2018, after much censoring by political parties, international organisations and children specialists, including psychologists, human rights advocates and academics. Nevertheless, the criticism was intense as it concerns the biggest power retaining country worldwide. Yet, it took a year to abandon this moral horror. As it was explained through the literature review above, the treaty laid down state obligations in relation to material basic needs50 and immaterial basic needs,51 the violation of which constitute a blatant and structural one.52 A leading country such as the US would have thought twice before implementing a violent practice if it was a signatory party to the CRC, not only due to the binding nature of the Convention, but due to the Committee’s commenting cycle. The “American Dream” does not seem to apply to migrant children as they are forced to represent themselves alone in Court, when they do not even recognise the notion of a “lawyer” as linguistic terminology. Nonetheless, imagine what would have happened in a country which is less than one quarter of the United States of America. A country which receives influence from all the neighboring countries as it is located in the center of several different continents. And as if its strategic position was not troubling enough, this small country, the Island of Cyprus, has been divided into four different administrative parts, beleaguered by taboos, a history of violence, maladministration and tolerance. The Republic of Cyprus, has incorporated the CRC into the municipal Law 243 of 1990. The Convention’s provisions have been involved in court proceedings and the Government spreads awareness amongst those working with children. Nevertheless, negative attitudes toward the concept of children having rights have not been completely dispelled. We live in a world whereby unfair taboos and cultural understandings establish our position within society. More illustrative, sexual orientation orbits around “straightness” and all races orbit around “whiteness”; my age and gender were often considered as a diminishing factor, as a factor which weakens my cognitive capacity. Thus, it is through the effective implementation of international hard-law, based on human rights and research, that one can acknowledge, reject and destroy the harmful labels society enforced on us- but we should always remember that we are that society.
Posted in Human Rights
