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date: 22 June 2021

(p. ix) Preface

(p. ix) Preface

Martha Minow

To be the subject of a handbook is to arrive at a point when people need and want advice about how to do something.1 This book on children’s rights joins handbooks already in print on children’s literature and on children and the law.2 Like those works, this book addresses a wide range of practical settings and policies as well as conceptual and philosophic themes connected with ideas about and actual needs of children. The turn to children’s rights reflects and underscores the work of the 1989 UN Convention on the Rights of the Child that by now has all nations except the United States as signatories.3 Yet even thirty years later, the turn to rights for children remains a subject for debate, development, and challenge of both conceptual and practical dimensions.

This handbook brings particular attention to critical perspectives rooted in the Global South, in children’s own practices, and in concerns about identities and power relationships. The authors defend the universal availability of children’s rights and highlight many specific contexts and needs reflecting different identities. Mindful of the international children’s rights framework, the chapters also emphasize bottom-up perspectives grounded in the lives of children, communities, and movements.

Rights and Protections; Interests and Participation

The familiar contest over whether children are best served by rights or protections gains detailed and fresh analysis in light of concrete issues. Authors here turn to the best interests of the child standards to show how the concept can at times serve as a proxy for rights but also remain open to manipulation, paternalism, and bias.4 Rights conceived as claims to particular relationships break out of the rights/protection divide.5 Rights may be rooted in children’s evolving capacities.6 Even more memorable is a conception of children as rights-bearers regardless of their current or future capacities. Rights for children are the common coin of societal respect and also operational claims on the responsibilities of others.7

(p. x) Illuminating discussions of children’s participation in politics and in local, national, and international institutions give texture and weight to what the agency and voice of children can mean.8 Participation by children requires opportunities in terms of space and flexibility.9 The authors herein call for and provide explicit attention to the needs of children without adult providers,10 to children concerned about climate change,11 and to the predicate of education about children’s rights for children’s empowerment.12

Objects or Subjects

Implicit in the entire handbook is the struggle to convert children from a status as objects to a status as subjects. A subject observes, an object is observed; a subject acts, while an object is acted upon. Children have been objects of ownership, trafficking, violence, punishment, and deployment into combat.13 Parents, peers, communities, militia groups, national states, and other actors have treated children as objects in these and other ways. Recognizing children as subjects takes work, especially when some join armed conflicts, enter into marriages, face criminal sanctions, or become victims of violence. Rights discourse, advocacy, and reforms can help people see and treat children as subjects.14 Being beneficiaries of expansive aspirations and boundless love may not follow inexorably from bearing rights, but rights can help.15

Also many of the chapters reveal how children are the objects of adult confusions. Confusions over who is a child and for what purposes arise within and across legal communities.16 A central confusion is the dilemma over whether and when children benefit if treated as the same as or as different from adults. Rather like the dilemmas arising over gender, race, and disability, in worlds that have made a particular trait matter, children can be both helped and hurt when recognized as diverging from adults.17 Children are harmed at times if treated as vulnerable, but they can also be harmed when their vulnerabilities are ignored. Denying children the opportunity to earn payment through work can be a violation of rights, but so also can children be exploited and harmed by workplace demands and practices.18 Marriage of children can be abuse, so children should have the right not to marry, but children who are married also should have the rights to obtain education, health, and social security due any child.19

Used by adults to address adult concerns such as the Cold War preoccupations of the United States in the 1950s,20 children also embody the future of all human beings and hold the potential to draw out the best in others.21 Adults both use children and gain inspiration from them, as expressed in the claim that we must begin with children if we want world peace22 and in current efforts to combat climate change.23 Acknowledging that children may be objects as well as subjects in such initiatives would heighten arguments for their greater participation and for reflections by those who were recently children in campaigns waged in their names.

(p. xi) Negative versus Positive and Individuals versus Communities

Legal and political traditions framed in terms of rights often reflect Western preoccupations with autonomous individuals and with protections against state power.24 These features of rights discourse can pose conceptual and practical obstacles to positive liberties. Rights to education, health, family, and other affirmative goods acknowledge dependency, as do rights against violence, discrimination, harassment, and abuse. Authors here explore affirmative rights to health and health care, to education, and to sustainable development.25 The handbook makes sure not to leave out these rights for migrating children.26 Whether rights discourse can mobilize resources and whether government action risks harming children are questions thus deserving sustained treatment afforded in handbook chapters. Taken together, the chapters demonstrate that to guard against abusive relationships with adults is to let go of a distinction between affirmative and negative rights.

Context and Concentric Circles

Contexts matter. Contexts matter in acknowledging how positive and negative rights intertwine, in attending to children’s needs, and in giving force and meaning to children’s rights while also demanding particularized translations.27 Notable contributions in this book map the concentric circles of contexts for children. From their solitary embodiment to their relationships with family members and peers, from their membership in political communities to their status as immigrants or people without a state, from the variations across regions and nations to the universality of children’s rights (at least as seen by particular movements and institutions), children live in ecosystems with sometimes concentric and sometimes overlapping circles of governance.28 And yet even this understates the experiences of children who share much with their peers but diverge in race, sexual and gender identities, and family composition.29 A strength of this book is its attention to children from indigenous communities,30 children affected by the societal and legal divisions of public and private,31 children marked by social caste and descent-based discrimination,32 street children and children heading households without adult caregivers,33 children subject to international adoptions,34 and children migrating with families or alone across national borders.35

The effects of global power arrangements infuse discussions about what is or can be universal in children’s rights.36 Alongside politics are cultures. Rights may seem in tension but may also produce synergies with cultural resources.37 Just as advocates need to resist an exclusive focus on deficits of individuals by attending also to their potential (p. xii) capabilities,38 the entire project of building, revising, and implementing children’s rights should draw attention to both shortfalls and progress in children’s rights.39

A Big Bet

Taken together, the many perspectives expressed in this work bring to mind a different definition of a handbook—that is, as a bookmaker’s book of bets.40 For despite the legal and social reforms of the past few decades, the hope that such rights will better the lives of children remains a wager. Will summoning the language, institutions, advocacy, and hopes surrounding rights, make the lives of children better? That is one bet. Another is the debate over what better means. Unlike so many other subjects, this one has an unavoidable time sensitivity. Even with disagreements over when childhood begins and ends, there is no debate that it is short. Even a week of deprivation in the life of a child—a week of exclusion from school, a week of sexual assault, a week of military deployment, a week of enforced separation from parents—will have lasting effects. The clock is ticking. This handbook summons talent and effort from across the globe to make rights for children real.

Notes

(1.) Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/handbook. See also Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/handbook (defining handbook as “a book capable of being conveniently carried as a ready reference”).

(2.) Prior handbooks regarding children address, as well as children’s and young people’s nursing, early childhood intervention, children’s literature, social justice in music education, and children and the law, among many other topics. See Cathy Benedict, Patrick Schmidt, and Gary Spruce, eds., The Oxford Handbook of Social Justice in Music Education (New York: Oxford University Press, 2018); Edward Alan Glasper, Gillian McEwing, and Jim Richardson, eds., The Oxford Handbook of Children’s and Young People’s Nursing, 2nd. ed. (New York: Oxford University Press, 2010); Jack P. Shonkoff, ed., Handbook of Early Childhood Intervention, 2nd ed. (Cambridge: Cambridge University Press, 2000); Lynne Vallone and Julia Mickenberg, eds., Oxford Handbook of Children’s Literature (New York: Oxford University Press, 2011). See also Martin D. Ruck, Michele Peterson-Badali, and Michael Freeman, eds., Handbook of Children’s Rights (New York: Routledge, 2016).

(3.) UN Convention on the Rights of the Child, G.A. Res. 44/25, 44th Sess., UN Doc. A/RES/44/25 (1989); Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd ed. (Geneva: UNICEF, 2007), https://www.unicef.org/publications/files/Implementation_Handbook_for_the_Convention_on_the_Rights_of_the_Child.pdf. On the solitude of the United States in this context, see B. Shaw Drake and Megan Corrarino, “U.S. Stands Alone: Not Signing U.N. Child Rights Treaty Leaves Migrant Children Vulnerable,” Huffington Post, October 13, 2015, https://www.huffingtonpost.com/b-shaw-drake/children-migrants-rights_b_8271874.html.

(4.) See Wouter Vandenhole and Gamze Erdem Türkelli, chapter 10, this volume.

(5.) See Barbara Bennett Woodhouse, chapter 12, this volume. See also Martha Minow and Mary Lyndon Shanley, “Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law,” Hypatia 11 (Winter): 4–26; reprinted as Martha Minow and Mary Lyndon Shanley, “Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law,” in Reconstructing Political Theory: Feminist Perspectives, ed. Mary Lyndon Shanley and Uma Narayan (University Park: Pennsylvania State University Press, 1998), 84–108. See also Martha Minow, “Interpreting Rights: An Essay for Robert Cover,” Yale Law Journal 96, no. 8 (1987): 1860–1915; Martha Minow, “Essay Review: Are Rights Right for Children?” American Bar Foundation Research Journal 12 (1987): 203–223; Martha Minow, “Rights for the Next Generation: A Feminist Approach to Children’s Rights,” Harvard Women’s Law Journal 9 (1986): 1–24; reprinted as Martha Minow, “The Public Duties of Families and Children,” in From Children to Citizens, vol. 2: The Role of the Juvenile Court, ed. Francis X. Hartmann (New York: Springer-Verlag, 1987); translated into Japanese by Hiroshi Oh’e in The Socio-Legal Studies on Family Law 10 (September 1994); reprinted in Rosaline Ekman Ladd, Children’s Rights Re-Visioned: Philosophical Readings (Belmont, CA: WadsworthPublishing Co., 1996).

(6.) For a nuanced argument in this vein, see Anne Dailey, “Children’s Constitutional Rights,” Minnesota Law Review 95 (2010–2011): 2099–2179. See generally Tom D. Campbell, “The Rights of the Minor: As Person, as Child, as Juvenile, as Future Adult,” International Journal of Law, Policy and the Family 6, no. 1 (April 1992): 1–23, https://doi.org/10.1093/lawfam/6.1.1; John Tobin, “Justifying Children’s Rights,” International Journal of Children’s Rights 21, no. 3 (2013): 395–441, https://doi.org/10.1163/15718182-02103004. Valuable contributions to conceptions of children’s rights include Tamar Ezer, “A Positive Right to Protection for Children,” Yale Human Rights and Development Journal 7, no. 1 (2004), http://digitalcommons.law.yale.edu/yhrdlj/vol7/iss1/1 (argument for protection and dignity); Colleen Sheppard, “Children’s Rights to Equality: Protection versus Paternalism,” Annals of Health Law, no. 1 (1992): 197–211 (advancing claims for both noninterference and for protection and care); David B. Thronson, “Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law,” Ohio State Law Journal 63 (2002): 979–1016; Sharon Bessel and Tali Gal, “Forming Partnerships: The Human Rights of Children in Need of Care and Protection,” International Journal of Children’s Rights 15 (2008): 1–16; Annette R. Appell, “Children’s Voice and Justice: Lawyering for Children in the Twenty-First Century,” Nevada Law Journal 6 (2006): 692–723; R. J. R. Levesque, “International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy,” California Western International Law Journal 24 (1994): 193–240.

(7.) See Michael Freeman, chapter 3 (this volume), text at notes 7–8; versus responsibilities of others, see text at notes 101–109.

(8.) See Perpetua Kirby and Rebecca Webb, chapter 23, and Gerison Lansdown, chapter 24, this volume.

(9.) See Karl Hanson and Olga Nieuwenhuys, chapter 5, and Jaap Doek, chapter 13, this volume.

(10.) See Julia Sloth Nielsen and Katrien Klep, chapter 29, this volume.

(11.) See Christine Bakker, chapter 22 (this volume), text at notes 78–79.

(12.) See R. Brian Howe and Katherine Covell, chapter 33, this volume.

(13.) See Mike Dottridge, chapter 30, and Mark Drumbl, chapter 31, this volume.

(14.) See Ton Liefaard, chapter 14; Drumbl, chapter 31; and Marta Santos Pais, chapter 15, this volume.

(15.) See Shani King, Have I Ever Told You? (Thomaston, ME: Tilbury House, 2018).

(16.) See Freeman, chapter 3, text at notes 66–82 and text at notes 146–160; Hanson and Nieuwenhuys, chapter 5, text at notes 22–25.

(17.) Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, NY: Cornell University Press, 1990); Christine Littleton, “Reconstructing Sexual Equality,” California Law Review 75 (1987): 1279–1337.

(18.) See Manfred Liebel, chapter 17, this volume.

(19.) See Jessica Dixon Weaver, chapter 9, and Nielsen and Klep, chapter 29, this volume.

(20.) Cynthia Price Cohen, “The Role of the United States in the Drafting of the Convention on the Rights of the Child,” Emory International Law Review 20 (Spring 2006): 185–198.

(21.) See Jo Becker, chapter 2 (this volume), text at note 21.

(22.) See Hanson and Nieuwenhuys, chapter 5, text at note 9 (quoting Mahatma Gandhi).

(23.) See Bakker, chapter 22.

(24.) See Afua Twum-Danso Imoh, chapter 21, this volume.

(25.) See Ursula Kilkelly, chapter 18, Laura Lundy and Amy Brown, chapter 19, and Aoife Nolan, chapter 20, this volume.

(26.) See Sarah Paoletti, chapter 32, this volume.

(27.) Hanson and Nieuwenhuys, chapter 5.

(28.) Meredith Johnson Harbach, chapter 8 (this volume), text at notes 39–50; Hanson and Nieuwenhuys, chapter 5, text at notes 29–30; Lansdown, chapter 24; David B. Thronson, chapter 11; Paoletti, chapter 32, text at notes 38–54; Tali Gal, chapter 6, this volume.

(29.) Natsu Taylor Saito and Akilah J. Kinnison, chapter 7, and Berta Esperanza Hernández-Truyol, chapter 26, this volume.

(30.) Addie C. Rolnick, chapter 27, and Maya Sabatello and Mary Frances Layden, chapter 28, this volume.

(31.) Harbach, chapter 8, text at notes 45–62; Weaver, chapter 9.

(32.) See Philip E. Veerman, chapter 25, this volume.

(33.) Nielsen and Klep, chapter 29.

(34.) See Twila L. Perry, chapter 16, this volume.

(35.) Paoletti, chapter 32.

(36.) See Savitri Goonesekere, chapter 4, this volume, and Freeman, chapter 3, text at notes 13–14.

(37.) Weaver, chapter 9; regarding rights versus culture binary, see Imoh, chapter 21, text at notes 9–39, and, regarding “synergies,” see text at note 77.

(38.) Goonesekere, chapter 4, text at notes 83–84; Gal, chapter 6, text at notes 32–33.

(39.) See Jonathan Todres and Shani King, chapter 34, this volume.

(40.) Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/handbook.

Notes:

(1.) Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/handbook. See also Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/handbook (defining handbook as “a book capable of being conveniently carried as a ready reference”).

(2.) Prior handbooks regarding children address, as well as children’s and young people’s nursing, early childhood intervention, children’s literature, social justice in music education, and children and the law, among many other topics. See Cathy Benedict, Patrick Schmidt, and Gary Spruce, eds., The Oxford Handbook of Social Justice in Music Education (New York: Oxford University Press, 2018); Edward Alan Glasper, Gillian McEwing, and Jim Richardson, eds., The Oxford Handbook of Children’s and Young People’s Nursing, 2nd. ed. (New York: Oxford University Press, 2010); Jack P. Shonkoff, ed., Handbook of Early Childhood Intervention, 2nd ed. (Cambridge: Cambridge University Press, 2000); Lynne Vallone and Julia Mickenberg, eds., Oxford Handbook of Children’s Literature (New York: Oxford University Press, 2011). See also Martin D. Ruck, Michele Peterson-Badali, and Michael Freeman, eds., Handbook of Children’s Rights (New York: Routledge, 2016).

(3.) UN Convention on the Rights of the Child, G.A. Res. 44/25, 44th Sess., UN Doc. A/RES/44/25 (1989); Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd ed. (Geneva: UNICEF, 2007), https://www.unicef.org/publications/files/Implementation_Handbook_for_the_Convention_on_the_Rights_of_the_Child.pdf. On the solitude of the United States in this context, see B. Shaw Drake and Megan Corrarino, “U.S. Stands Alone: Not Signing U.N. Child Rights Treaty Leaves Migrant Children Vulnerable,” Huffington Post, October 13, 2015, https://www.huffingtonpost.com/b-shaw-drake/children-migrants-rights_b_8271874.html.

(4.) See Wouter Vandenhole and Gamze Erdem Türkelli, chapter 10, this volume.

(5.) See Barbara Bennett Woodhouse, chapter 12, this volume. See also Martha Minow and Mary Lyndon Shanley, “Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law,” Hypatia 11 (Winter): 4–26; reprinted as Martha Minow and Mary Lyndon Shanley, “Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law,” in Reconstructing Political Theory: Feminist Perspectives, ed. Mary Lyndon Shanley and Uma Narayan (University Park: Pennsylvania State University Press, 1998), 84–108. See also Martha Minow, “Interpreting Rights: An Essay for Robert Cover,” Yale Law Journal 96, no. 8 (1987): 1860–1915; Martha Minow, “Essay Review: Are Rights Right for Children?” American Bar Foundation Research Journal 12 (1987): 203–223; Martha Minow, “Rights for the Next Generation: A Feminist Approach to Children’s Rights,” Harvard Women’s Law Journal 9 (1986): 1–24; reprinted as Martha Minow, “The Public Duties of Families and Children,” in From Children to Citizens, vol. 2: The Role of the Juvenile Court, ed. Francis X. Hartmann (New York: Springer-Verlag, 1987); translated into Japanese by Hiroshi Oh’e in The Socio-Legal Studies on Family Law 10 (September 1994); reprinted in Rosaline Ekman Ladd, Children’s Rights Re-Visioned: Philosophical Readings (Belmont, CA: WadsworthPublishing Co., 1996).

(6.) For a nuanced argument in this vein, see Anne Dailey, “Children’s Constitutional Rights,” Minnesota Law Review 95 (2010–2011): 2099–2179. See generally Tom D. Campbell, “The Rights of the Minor: As Person, as Child, as Juvenile, as Future Adult,” International Journal of Law, Policy and the Family 6, no. 1 (April 1992): 1–23, https://doi.org/10.1093/lawfam/6.1.1; John Tobin, “Justifying Children’s Rights,” International Journal of Children’s Rights 21, no. 3 (2013): 395–441, https://doi.org/10.1163/15718182-02103004. Valuable contributions to conceptions of children’s rights include Tamar Ezer, “A Positive Right to Protection for Children,” Yale Human Rights and Development Journal 7, no. 1 (2004), http://digitalcommons.law.yale.edu/yhrdlj/vol7/iss1/1 (argument for protection and dignity); Colleen Sheppard, “Children’s Rights to Equality: Protection versus Paternalism,” Annals of Health Law, no. 1 (1992): 197–211 (advancing claims for both noninterference and for protection and care); David B. Thronson, “Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law,” Ohio State Law Journal 63 (2002): 979–1016; Sharon Bessel and Tali Gal, “Forming Partnerships: The Human Rights of Children in Need of Care and Protection,” International Journal of Children’s Rights 15 (2008): 1–16; Annette R. Appell, “Children’s Voice and Justice: Lawyering for Children in the Twenty-First Century,” Nevada Law Journal 6 (2006): 692–723; R. J. R. Levesque, “International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy,” California Western International Law Journal 24 (1994): 193–240.

(7.) See Michael Freeman, chapter 3 (this volume), text at notes 7–8; versus responsibilities of others, see text at notes 101–109.

(8.) See Perpetua Kirby and Rebecca Webb, chapter 23, and Gerison Lansdown, chapter 24, this volume.

(9.) See Karl Hanson and Olga Nieuwenhuys, chapter 5, and Jaap Doek, chapter 13, this volume.

(10.) See Julia Sloth Nielsen and Katrien Klep, chapter 29, this volume.

(11.) See Christine Bakker, chapter 22 (this volume), text at notes 78–79.

(12.) See R. Brian Howe and Katherine Covell, chapter 33, this volume.

(13.) See Mike Dottridge, chapter 30, and Mark Drumbl, chapter 31, this volume.

(14.) See Ton Liefaard, chapter 14; Drumbl, chapter 31; and Marta Santos Pais, chapter 15, this volume.

(15.) See Shani King, Have I Ever Told You? (Thomaston, ME: Tilbury House, 2018).

(16.) See Freeman, chapter 3, text at notes 66–82 and text at notes 146–160; Hanson and Nieuwenhuys, chapter 5, text at notes 22–25.

(17.) Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, NY: Cornell University Press, 1990); Christine Littleton, “Reconstructing Sexual Equality,” California Law Review 75 (1987): 1279–1337.

(18.) See Manfred Liebel, chapter 17, this volume.

(19.) See Jessica Dixon Weaver, chapter 9, and Nielsen and Klep, chapter 29, this volume.

(20.) Cynthia Price Cohen, “The Role of the United States in the Drafting of the Convention on the Rights of the Child,” Emory International Law Review 20 (Spring 2006): 185–198.

(21.) See Jo Becker, chapter 2 (this volume), text at note 21.

(22.) See Hanson and Nieuwenhuys, chapter 5, text at note 9 (quoting Mahatma Gandhi).

(23.) See Bakker, chapter 22.

(24.) See Afua Twum-Danso Imoh, chapter 21, this volume.

(25.) See Ursula Kilkelly, chapter 18, Laura Lundy and Amy Brown, chapter 19, and Aoife Nolan, chapter 20, this volume.

(26.) See Sarah Paoletti, chapter 32, this volume.

(27.) Hanson and Nieuwenhuys, chapter 5.

(28.) Meredith Johnson Harbach, chapter 8 (this volume), text at notes 39–50; Hanson and Nieuwenhuys, chapter 5, text at notes 29–30; Lansdown, chapter 24; David B. Thronson, chapter 11; Paoletti, chapter 32, text at notes 38–54; Tali Gal, chapter 6, this volume.

(29.) Natsu Taylor Saito and Akilah J. Kinnison, chapter 7, and Berta Esperanza Hernández-Truyol, chapter 26, this volume.

(30.) Addie C. Rolnick, chapter 27, and Maya Sabatello and Mary Frances Layden, chapter 28, this volume.

(31.) Harbach, chapter 8, text at notes 45–62; Weaver, chapter 9.

(32.) See Philip E. Veerman, chapter 25, this volume.

(33.) Nielsen and Klep, chapter 29.

(34.) See Twila L. Perry, chapter 16, this volume.

(35.) Paoletti, chapter 32.

(36.) See Savitri Goonesekere, chapter 4, this volume, and Freeman, chapter 3, text at notes 13–14.

(37.) Weaver, chapter 9; regarding rights versus culture binary, see Imoh, chapter 21, text at notes 9–39, and, regarding “synergies,” see text at note 77.

(38.) Goonesekere, chapter 4, text at notes 83–84; Gal, chapter 6, text at notes 32–33.

(39.) See Jonathan Todres and Shani King, chapter 34, this volume.