Of Innocence and Autonomy

Children, Sex and Human Rights

Eric Heinze

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351749473
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Droits civiques en politique

This title was first published in 2000: This anthology of essays focuses on the human rights of children in the area of sexuality. Looking at the theoretical aspects, essays examine the history and construction of concepts of childhood and child sexuality, while other essays take an interdisciplinary approach, examining anthropological, sociological, psychological and economic perspectives on law and childhood sexuality. Specific problems that arise in litigation and judicial practice are looked at in more detail, and in some cases, comparative and international approaches are taken to the examination of law reform and initiatives in selected countries and in international organizations.

Part I

Constructing Childhood: Theory and History

1 The Universal Child?*

ERIC HEINZE

Introduction

To universalise children’s rights is to universalise a culturally specific idea of childhood. Contemporary children’s rights movements are the product of models of childhood proliferated through Western social science, itself the product of post-Enlightenment views of personality and society. These models have become instruments of a dual process of globalisation: they form the basis of a growing children’s rights regime at the international level, which, in turn, reflects increasing domestic practice within multicultural societies. Lawmakers and activists have a knack for plucking from the social sciences the models that best suit their arguments, while ignoring those models’ historical genesis and consequent intellectual limits. If conflicting models are of little significance in the campaign to end gross forms of child abuse, malnutrition, slavery or disease, they nevertheless acquire a key role in efforts to solve the morally textured problems of sexuality.

Starting with some characteristic assumptions about childhood embodied in leading international human rights instruments, this chapter examines a sampling of socio-scientific models which have influenced contemporary concepts of childhood. It does not offer an exhaustive review; that would be a work of volumes. Nor does it embrace any model of its own; that would suggest finality to a process that has barely begun. Instead, it considers some representative ‘snapshots’ from 20^th century social science, with a view towards their relevance to the political processes which shape law and policy governing child sexuality.

The Global Child

By the time of the UN General Assembly’s adoption of the Universal Declaration of Human Rights (UDHR) in 1948,¹ human rights instruments were not new to the international community.² The Universal Declaration nevertheless represented the first major step within international law towards a comprehensive catalogue of individual rights. With the translation of the Universal Declaration into two binding Covenants³ — the International Covenant on Civil and Political Rights (ICCPR)⁴ and the International Covenant on Economic, Social and Cultural Rights (ICESCR)⁵ — one might have expected the norm-creating task of the international community to have been completed.⁶ The remaining work would consist of urging States to respect and promote these three instruments (commonly known as the ‘International Bill of Rights’⁷) in practice.

Yet it is the opposite that has occurred. The notion that the interests of all human beings could be formulated within three instruments spanning but a few dozen pages has continued to spark controversy about the adequacy, inclusiveness and cultural assumptions of the International Bill of Rights. Subsequent developments have sought to move away from the high level of generality of these three founding instruments, towards increasing attention to human differences. In the same year as the adoption of the ICCPR and ICESCR, the United Nations General Assembly also approved the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).⁸ Since that time, pressures to recognise other more specific human rights issues have increased. Women,⁹ minorities,¹⁰ indigenous peoples,¹¹ the disabled,¹² or workers¹³ have all been subjects of international instruments. Despite continued affirmation of the universality of the three founding documents,¹⁴ it is no exaggeration to say that one is not a fully recognised beneficiary of human rights until one is a member of some subset of humanity that can boast an instrument ‘of its own.’ To receive such an instrument is to be recognised as bearing an identity sufficiently distinct to entail specific normative consequences¹⁵ — which may explain why even those, such as indigenous peoples, who might be expected to challenge the legitimacy of State-centred intergovernmental organisations, have nevertheless solicited those organisations for the promulgation of instruments representing their interests.¹⁶

Children have been the subject of numerous instruments. A first Declaration of the Rights of the Child (DRC 1924) was promulgated within the League of Nations,¹⁷ and a host of instruments have followed. What, then, is the distinctive character of children which justifies or requires a separate set of international instruments? What special identity do these instruments attribute to children? Article 1 of the Convention on the Rights of the Child (CRC) defines children in exclusively chronological terms: ‘a child means every human being below the age of eighteen years unless … majority is attained earlier.’¹⁸ That definition, however, only begs the question as to what makes persons under the age of 18 different. The treaty’s very existence assumes that these individuals are sufficiently distinctive to warrant a separate regime.¹⁹ The 1959 Declaration on the Rights of the Child (DRC 1959) had noted children’s needs for ‘special safeguards,’²⁰ and the CRC proclaims that protection and assistance must be afforded to all members of society, but ‘particularly children.’²¹ And it is not only instruments specific to children which assume children’s distinctiveness. The Universal Declaration provides that ‘childhood [is] entitled to special care and assistance.’²² The ICCPR permits States Parties to impose the death penalty, except upon persons under the age of eighteen.²³

At first glance, the DRC 1924, consisting of only five brief articles, suggests significant differences from the more recent instruments. Certainly, as a non-binding instrument, it was intended only to proclaim aspirations rather than to confer rights.²⁴ Yet even within that more limited, hortatory mandate, it does not set individual rights as a goal, even for the long term.²⁵ Despite its titular reference to rights, its language alludes to children’s moral deserts, not to their legal entitlements. Its terse preambular paragraph states that ‘mankind owes to the child the best it has to give,’ and not that children should have affirmative rights vis-à-vis the States, communities or families in which they live. Article 1 emphasises children’s needs; article 3 notes that children should ‘be the first to receive relief in times of distress.’ In poetic, quasi-religious terms, article 2 provides that:

The child that is hungry must be fed, the child that is sick must be helped; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succoured.

While omitting any enumeration of rights, the Declaration sets the stage for a legal regime that will be defined by children’s biological, psychological and emotional distinctiveness. Such views did not enter law by chance. They coincide with socio-scientific movements brimming with theories of childhood. How persuasively, then, do those theories actually support the concepts of childhood accepted not only in international law, but, increasingly, in domestic regimes?

The Essentialised Child

Some universals appear to be dictated by common sense. Human infants enter the world with bodies and emotions different from those of adults. They must be fed and clothed; they command neither language nor other accoutrements of the Aristotelian social animal. These differences alone appear to represent objective indicia of a distinctive phase of human existence. The diverse cultural manifestations of childhood might thus be construed as sheer derivatives of this finite set of physiological and psychological constraints.

Such a view is commonly associated with early psychoanalytic and developmental approaches to childhood. Freud’s schema of psychosexual development, for example, still stands as a landmark of early socio-scientific attempts to formulate a schematic progression of ‘stages’ inher...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Table of Publications
• Foreword
• Preface
• Series Preface
• Part I Constructing Childhood: Theory and History
• Part II Legislating Childhood: International and Comparative Perspectives
• Part III Abusing Childhood: Critical Dimensions and Practical Consequences
• Part IV Empowering Childhood: Awareness, Development and Education