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International Children's Rights Notes

BCL Law Notes > Children, Families & the State Notes

This is an extract of our International Children's Rights document, which we sell as part of our Children, Families & the State Notes collection written by the top tier of Oxford students.

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(3) International Children's Rights
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.
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 12

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
(Communicatio n 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)

1 (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)
o 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)
o 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)
o "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

2 (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:
o (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)
o (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)
o 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 (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 its boundaries
— thus, to individual States to determine when childhood begins (rebuttable presumption of 18 years)
- HOWEVER: Incompletely theorised nature of UNCRC does not mean that it devoid of any moral content
(5) Competing theories for justification of rights:
- Will theory: capacity to exercise rights is a prerequisite to entitlement — used to deny rights for children

Brighouse: children depart from liberal model of competent rational persons and should not be entitled to agency rights

O'Neill: child's "main remedy is to grow up"
o Griffin: denies human rights to infants because they are not normative agents — vulnerable imposes substantial obligations but justification of an obligation should not be confused with justification of a right
- Interest theory: does not matter that rights-holders are not in position to assert rights — to be right-holder is merely to be a direct intended beneficiary of someone else's duty-bound performance to recognise interest of the right-holder
(6) The idea of human rights for children under the CRC is justified on the basis of interest theory
- (i) There is an overlapping consensus as to the conceptual foundations of children's rights under the CRC
- (ii) This consensus is facilitated by a:
o conception of dignity in which all humans (including children) have unique value; and

conception of children as being vulnerable relative to adults yet possessing evolving capacity of agency and autonomy — provides foundation for 'special' human rights that are granted to children
- (iii) This conception of human rights for children is grounded in interest theory (cf. will theory) of rights

Reflected in CRC — only prerequisite for entitlement to human rights under international law is that claimant is a human— recognises children as human beings, not merely becomings — entitled to rights irrespective of capacity to exercise them
 Interests form the foundation of rights (ie. moral justification for granting human rights to children)
(7) The elevation of particular interests to the status of human rights under the CRC is justified on the basis of social interest theory
- (i) Commentators identify differing interests that are peculiar to children and suitable for recognition as rights

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