Children's Rights Law in the Global Human Rights Landscape

Isolation, inspiration, integration?

Eva Brems, Ellen Desmet, Wouter Vandenhole

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317268048
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Children's rights law is often studied and perceived in isolation from the broader field of human rights law. This volume explores the inter-relationship between children's rights law and more general human rights law in order to see whether elements from each could successfully inform the other. Children's rights law has a number of distinctive characteristics, such as the emphasis on the 'best interests of the child', the use of general principles, and the inclusion of 'third parties' (e.g. parents and other care-takers) in treaty provisions. The first part of this book questions whether these features could be a source of inspiration for general human rights law. In part two, the reverse question is asked: could children's rights law draw inspiration from developments in other branches of human rights law that focus on other specific categories of rights holders, such as women, persons with disabilities, indigenous peoples, or older persons? Finally, the interaction between children's rights law and human rights law – and the potential for their isolation, inspiration or integration – may be coloured or determined by the thematic issue under consideration. Therefore the third part of the book studies the interplay between children's rights law and human rights law in the context of specific topics: intra-family relations, LGBTQI marginalization, migration, media, the environment and transnational human rights obligations.

Part I

The broader relevance of features of children’s rights law

1 Distinctive characteristics of children’s human rights law

Wouter Vandenhole

Children’s human rights law has a number of distinctive characteristics – presumed and real. This chapter explores and assesses these distinctive characteristics and their potential to enrich the general or other specific (e.g. for women; persons with disabilities etc) human rights regimes.

With children’s human rights law (hereafter more succinctly referred to as children’s rights law), I refer in the specific context of this publication primarily to the Convention on the Rights of the Child (CRC), to the exclusion of human rights treaties that contain provisions on children’s rights (e.g. Articles 6(5), 10(2)(b), 14(1) and (4) and 24 of the International Covenant on Civil and Political Rights (ICCPR); Article 10(3) of the International Covenant on Economic, Social and Cultural Rights (ICESCR); Article 7 of the Convention on the Rights of Persons with Disabilities (CRPD); Article 17 of the Revised European Social Charter (RESC); and Articles 24 and 32 of the EU Charter on Fundamental Rights).¹ I do not limit the analysis to the treaty, but include also the authoritative interpretation given to it by the CRC Committee, as well as scholarly work and sometimes civil society positions.

The following distinctive characteristics will be looked into in particular: the indivisibility of civil, political, economic, social and cultural rights; new substantive norms or elements; the ‘best interests of the child’ principle; general principles; and the inclusion of ‘third parties’ (e.g. parents and other carers) as duty-holders beyond the state.

Two hypotheses will inform the chapter. Firstly, many of the alleged distinctive characteristics of children’s rights law are in fact not significantly distinctive. Secondly, even the truly distinctive characteristics have a number of weaknesses and limitations. Whereas the second hypothesis does not necessarily preclude integration, nor justifies isolation, it guards against naïve attempts to transplant these distinctive characteristics to the general or specific human rights regimes.

An important element of background information in order to assess the CRC’s distinctive characteristics is that there are different readings of the drafting history of the CRC. The CRC is sometimes seen as the historic culmination point of a long struggle for recognition of children as fully-fledged human beings, as subjects of rights.² The CRC has therefore been hailed as a ‘paradigm shift’³ from paternalism to the acknowledgement that children are both ‘becomings’ and ‘beings’. This reading has been criticised from at least two perspectives. Some have argued that the CRC has failed to introduce that paradigmatic shift, and keeps focusing on the developing child, i.e. as ‘becoming’.⁴ Compared to other major struggles for emancipation, it has been argued that children’s rights have failed to debunk the ideology of development:

Jenks argues that while social sciences have critically addressed and debunked dominant ideologies of, for example, capitalism in relation to social class, colonialism in relation to race, and patriarchy in relation to gender, the ideology of development in relationship to childhood had remained relatively intact.⁵

A second alternative reading is offered by an international relations perspective on how the CRC has benefited from changing international relations, such as the change in American presidency and the collapse of the Berlin Wall and the Eastern Bloc in 1989.⁶ Poland, which submitted a draft convention to the UN Commission on Human Rights in 1978 and belonged to the group of socialist states, wanted to challenge Western states’ leadership in human rights initiatives, in particular that of the then president of the United States, Jimmy Carter.⁷ Moreover, it was assumed that a treaty on the rights of the child ‘could justifiably be confined to the economic, social and cultural rights to which the Communist countries wanted to accord priority’.⁸ When at a later stage the United States gave up its obstruction to a children’s rights treaty and sought to add civil and political rights, the US was less motivated by a desire to grant civil and political rights to children, but rather concerned with how it could make the Convention less appealing for Poland and its allies.⁹

Initially, negotiations turned out to be very difficult, for there was little time and quite some ideological obstruction, so that progress on the CRC depended on advancement of work on the Convention against Torture, which was of importance to some Western states.¹⁰ In early 1989, President Reagan was succeeded by President George Bush senior and, by the end of 1989, the former Communist countries were eager to show their commitment to a comprehensive human rights package.¹¹ These changes made it possible to conclude negotiations without major ideological clashes during the final stages. In the next sections, I examine the five alleged distinctive characteristics that I mentioned above.

1.1 Indivisibility of civil, political, economic, social and cultural rights

The CRC is very comprehensive in scope. It covers the traditional categories of both civil and political rights, as well as economic, social and cultural rights. At first sight, the CRC transcends the long-standing dichotomy between civil and political rights, and between economic, social and cultural rights. It has been hailed as the first (and initially only) instrument to be so comprehensive in scope.¹²

Both claims – first and only – need to be put into perspective. Both the Convention on the Elimination of All Forms of Racial Discrimination (CERD 1965) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 1979) may be said also to cover the two categories of rights, albeit textually through the prism of discrimination (see in particular Article 5 CERD and Articles 7–16 CEDAW). Moreover, since the adoption of the CRC in 1989, other core UN human rights treaties such as the Convention on the Protection of the Human Rights of All Migrant Workers and Members of their Families (CRW 1990) and the Convention on the Rights of Persons with Disabilities (CRPD 2006) include the two categories of rights.

Secondly, whereas the way in which rights are listed in the CRC may emphasise their indivisibility, Article 4 CRC clearly differentiates the general obligation for the realisation of these rights. In the case of economic, social and cultural rights, the general obligation is circumscribed by the reference to ‘the maximum extent of their available resources and, where needed, within the framework of international cooperation’.¹³ In the CRC Committee’s view, the second sentence of Article 4 reflects a realistic acceptance that lack of resources – financial and otherwise – can hamper the full implementation of economic, social and cultural rights in some states; this introduces the concept of ‘progressive realization’ of such rights.¹⁴

The CRPD contains a similar general obligation, albeit that it further qualifies the more limited general obligation with regard to economic, social and cultural (ESC) rights by adding that the progressive realisation obligation is ‘without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law’ (Article 4(2) CRPD). This circumscribed general obligation with regard to the ESC rights of children ensues from a long-lasting debate on the legal nature of ESC rights, which was also central to the negotiations on the CRC, at least in the initial stages. More often than not, they are considered second-class rights in case law and politics. The acceptance that the realisation of economic, social and cultural rights can be achieved only progressively and subject to the availability of resources bears out the recognition of a time dimension and a need for priorities in light of resource constraints.

However, as the Committee on Economic, Social and Cultural Rights (CESCR) has clarified, this recognition does not grant states carte blanche: they must begin immediately to take steps in order to realise ESC rights as expeditiously as possible. States also need to adopt a strategy and plan of action to realise these rights. Prioritisation too is subjected to process and substance conditions. The process in which prioritisation is decided needs to be participatory and transparent: all stakeholders must be involved so that all segments of society can express their value judgements regarding priorities. Substantively, core obligations (i.e. obligations pertaining to the minimum essential levels of the rights) should always be complied with or at least be prioritised. Moreover, there is a strong presumption that retrogressive measures are not permissible.¹⁵ Unfortunately, the CRC Committee has mainly paid lip-service to these jurisprudential developments, so that in practice more progress may have been made in general human rights law in considering ESC rights on a par with civil and political rights than in children’s rights law.¹⁶

The lack of conceptual sophistication in interpreting and applying ESC rights in children’s rights law may have been worsened, or at least seems to be confirmed, by the popular categorisation of children’s rights among children’s rights proponents and CRC commentators in the so-called three Ps: rights to protection, provision and participation. Provision rights are typically socio-economic rights.¹⁷ The downside of this categorisation for our current discussion is that the term ‘provision rights’ tends to confirm the outdated misunderstanding or misrepresentation that economic and social rights are exclusively about provision. It has meanwhile been widely accepted that the obligations relating to economic, social and cultural rights are to be understood as obligations to respect, to protect and to fulfil, and that the latter obligation consists of sub-obligations to facilitate, to promote and to provide. The obligation to fulfil–provide is only incumbent on the state when ‘individuals or a group are unable, for reasons beyond their control, to realise that right themselves by the means at their disposal’.¹⁸ Provision, and the concomitant need for the mobilisation of resources, therefore only characterises one tiny fraction of socio-economic rights.

In conclusion, the allegedly distinctive characteristic of children’s rights law as reflected in the CRC – in that it fully embraces the indivisibility of civil, cultural, economic, political and social rights – is in fact not significantly distinctive. To the extent that the CRC is indeed premised on the indivisibility of both categories of rights, efforts to transplant this to human rights law must be undertaken cautiously, since the indivisibility is weakened textually in Article 4 CRC, and in the children’s rights community by the widespread use of the 3-P typology.

1.2 New substantive norms or elements

Children’s rights law, and in particular the CRC, has also been argued to have introduced new substantive norms or new substantive elements, such as additional non-discrimination grounds, a broader notion of the right to life, evolving capacities and additional elements of the right to education. Other innovations that relate rather to children-specific issues or wording (e.g. preamble: the beginning of childhood; Article 7: the right to a name, to acquire a nationality and to know one’s parents;¹⁹ Article 8: the right to preservation of identity, including nationality, name and family relations;²⁰ Article 13: the right to express one’s views;²¹ Article 14: deference to parents with regard to the freedom of thought, conscience and religion;²² Article 17: the obligation to ensure the child’s access to information and material from a diversity of sources;²³ Article 18: common responsibilities of both parents for upbringing; Article 21: adoption; Article 26: the right to benefit from social security;²⁴ Article 27: deference to parents with regard to standard of living;²⁵ Article 30: explicit reference to indigenous children; Article 31: the right of the child to rest and leisure and to participate freely in cultural life and the arts²⁶) will in principle not be discussed.

Compared with other non-discrimination clauses, the CRC’s non-discrimination provision is broader in that it...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Children’s rights law and human rights law: analysing present and possible future interactions
• PART I The broader relevance of features of children’s rights law
• PART II Inspiration for children’s rights from categorical human rights
• PART III The interplay between children’s rights law and human rights law in thematic areas
• Index