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date: 22 June 2021

(p. 1) Introduction

(p. 1) Introduction

In November 2019, the international community celebrated the thirtieth anniversary of the United Nations Convention on the Rights of the Child, the most comprehensive treaty on children’s rights and the most widely ratified human rights treaty in history.

The Convention on the Rights of the Child (CRC) represented a definitive shift in the way that children are viewed and understood—from passive objects subsumed within the family requiring protection to full human beings with a distinct set of rights. The treaty includes the full panoply of children’s rights—civil, political, economic, social, and cultural rights. It reaffirms that rights previously recognized in the context of adults—from freedom of expression and protections against torture to rights to health care and an adequate standard of living—are rights held by children. And it also recognizes rights unique to children, such as the right to know and be cared for by one’s parents. This comprehensive framework established a legal mandate for securing the rights and well-being of all children.

After thirty years, there is much to celebrate. Since the adoption of the CRC, numerous new international instruments—including three optional protocols to the CRC, new treaties from the International Labor Organization, and regional treaties—have added to the corpus of international children’s rights law. At the national level, an increasing number of states parties make reference to children’s rights in their constitutions and in their national legislation.1 There is now evidence of law reform connected to the CRC and improvements in the welfare of children, particularly in the educational and health sectors.2 There are now more than two hundred independent human rights institutions that exist in over seventy countries.3 And some states have established coordinating mechanisms at the national, state, and local levels to make—as repeatedly urged by the committee charged with monitoring implementation of the CRC—government work for children.4 Furthermore, because the CRC is broadly consistent with traditional values across many cultures, it has even proved impactful in legal systems that are linked to local culture or religion.5

(p. 2) Notwithstanding the success of the Convention, implementation of the CRC is still a work in progress. Millions of children confront rights violations on a daily basis. We have now reached a state in the evolution of children’s rights in which we need more critical evaluation and assessment of the impact of the CRC and the large body of children’s rights law and policy that this treaty has inspired. We have moved from conceptualizing and adopting legislation to focusing on implementation and making the content of children’s rights meaningful in the lives of all children.

This book provides a critical evaluation and assessment of children’s rights law, including the CRC. It includes contributions from leading legal scholars, criminologists, social scientists, child rights practitioners, jurists, and former government officials. Together with the contributing authors, we seek to elucidate the content of children’s rights law, explore the complexities of implementation, and identify critical challenges and opportunities for this relatively young field that covers approximately one-third of the world’s population and governs every human being’s first stages of life.

Overview: Core Themes

This text is written to be useful for scholars and practitioners, but also accessible and relevant to students with interests in international children’s rights or human rights more generally. The book tackles significant issues in international children’s rights, in their theoretical, historical, cultural, political, and cultural complexity. We touch on key controversies in international children’s rights law involving cultural relativism, globalization, power, gender, class, and family relations. The book offers a guide through many of the challenges that need to be confronted if we are to ensure that human rights are understood and practiced in new and creative ways that are fully inclusive of and protective of children.

There is a growing discourse on children’s rights, but as with human rights discourses, certain critical themes continue to be overlooked or relegated to the margins. We have tried to use this volume to bring greater attention to these themes, both by encouraging all contributing authors to engage these themes and by including chapters that focus specifically on aspects of these issues. First, in this volume we have sought to incorporate global perspectives and critiques, including both Global South perspectives and chapters that view children’s rights through the lens of particular critical perspectives. If rights are to be meaningful in the lives of all children and their communities, we must foster a more inclusive dialogue in which all voices are heard. Second, given the developmental nature of childhood, we believe that multidisciplinary perspectives and other social science insights are vital to deepening understanding of children’s rights. Yet frequently perspectives from these other fields are overlooked in studies on children’s rights law. This volume reflects the use of multidisciplinary perspectives, such as developmental psychology, anthropology, sociology, and other social science (p. 3) insights. Third, as in other fields, children’s rights law at times suffers from overly simplistic binary constructs—for example, the rights versus protection arguments. While these constructs identify important questions, they also gloss over issues and complexities that are relevant to understanding and implementing children’s rights. This volume does address questions of rights versus care, but it also aims to go beyond such debates to explore how dignity, equality, and other rights perspectives fit with children. Fourth, this volume also attempts to challenge the distinction between negative liberties and positive rights. All rights require resources—both human and financial—if they are to be secured for all individuals. The right to education requires resources for schools and educational programs, but so too do voting rights, which require resources for elections, civic education, etc. Fifth, we explore how rights can be used to constrain potential oppression by government and other actors. Sixth and finally, we have included the works of selected authors with an eye toward a conception of rights relevant to building and exercising capabilities in this volume. By incorporating these themes and perspectives along with other traditional analyses of children’s rights, we hope to provide a volume that both deepens our understanding of children’s rights and challenges the field to develop more rigorous research that can foster advances in the rights and well-being of children.

Part I: Historical and Theoretical Framework

This handbook begins with perspectives on the historical and theoretical framework for children’s rights. Gertrud Lenzer begins by outlining how in modern, Western history, the concepts of the child and childhood have evolved and how the arc of developments in empiricist philosophy, the Enlightenment, the Romantic poets, and Victorian novels have all contributed to the conceptualization of children as subjects entitled to rights. Next, Jo Becker explores the history of the children’s rights movement. In some respects, Becker picks up where Lenzer leaves off, by illustrating how children conceptualized as subjects entitled to rights have become an integral part of the human rights agenda. This agenda has helped drive the development and adoption of international standards for children and has resulted in governments adopting new policies, laws, practices, and community initiatives involving children’s rights. Michael Freeman then challenges conventional wisdom by arguing that notwithstanding the aforementioned developments, we still fundamentally fail to take children’s rights seriously. He further explains how we should conceptualize children’s rights going forward. Freeman also reminds us that “the language of rights” makes visible what is oppressed. And, finally, Savitri Goonesekere walks us through the interrelated and interdependent nature of children’s rights. While all rights are interrelated and interdependent, the interconnected nature of (p. 4) rights is particularly relevant for children, given the developmental nature of childhood. Goonesekere suggests that these interconnectivities must be addressed and conflicts resolved in a holistic manner to make children’s rights a meaningful recourse for their well-being in families and communities.

Part II: Perspectives and Methods

The authors in this part explore children’s rights from various conceptual and methodological perspectives. In the first of these chapters, Karl Hanson and Olga Nieuwenhuys explain that a child-centered approach to children’s rights recognizes that children shape, interpret, and practice what their rights are and that they have the right to do so. Hanson and Nieuwenhuys also critique essentialist tendencies that diminish children’s engagement with their rights and explain how the concepts of living rights and translations may help provide children with space to negotiate meanings and to influence interpretations of their rights. In attempting to provide a richer context for children’s rights, Tali Gal then argues for an ecological model of children’s rights in which children’s development—and rights—can only be understood when considering the range of interconnected domains related to their lives. This chapter, Gal explains, is based on developmental psychologist Uri Brofenbrenner’s socioecological model, which suggests not only that human behavior and development are shaped by these multiple systems and processes, but also that these various components are interconnected and affect each other in complex ways that must be accounted for.

The authors of the next two chapters in this part apply different theoretical frameworks to the field of children’s rights, specifically critical race theory and feminist legal theory. Natsu Saito and Akilah Kinnison use critical race theory, a theoretical framework traditionally used to examine society and culture as they relate to categorizations of race, law, and power, to examine international children’s rights. Specifically, they ask what critical race theory can contribute to the realization of children’s rights under international law and consider ways in which use of the theory can help ensure that children of color and their communities benefit from internationally recognized children’s rights. Then, in the feminist legal theory chapter, Meredith Harbach provides an overview of feminism as a movement and feminist legal theory as a discipline and then considers the ways in which feminist legal theory and children’s rights are in conversation. Harbach explores the potential for newer variants of feminist legal theory—vulnerability theory and social justice feminism—to inform new directions in children’s rights. In a fitting end to this part, in “Intersectionality and Children’s Rights,” Jessica Dixon Weaver considers how intersectionality—a theoretical framework that attempts to identify how various systems of subordination or power impact those who are most marginalized in society—can be used to analyze how various laws and treaties that purport to protect children’s rights fail to do so when children fall within multiple identities.

(p. 5) Part III: Substantive Legal Areas

Each of the authors in this part focus on a different area of international children’s rights law. In some cases, the author focuses on a critical substantive right, such as education or health, and in others the author focuses on an issue affecting children, such as poverty. Wouter Vandenhole and Gamze Türkelli first analyze the application of the best interests of the child standard in international law—a foundational concept of a breadth of law related to children—and suggest the use of a number of safeguards in order to prevent this malleable concept from being used in a paternalistic, biased, or other way that undermines children’s rights. David Thronson then explores the multitude of ways in which citizenship can affect the rights of children and argues persuasively that within a modern human rights framework—one that recognizes the humanity and autonomy of children—nationality of children should not determine whether states recognize their rights. Next, Barbara Bennett Woodhouse considers the child’s right to family in international human rights law, examining the contours of the right to family, the circumstances when the right is triggered, and the question of who should exercise the right. Ultimately, Woodhouse argues that a child’s right to family should be understood as adding to the family’s resources, augmenting rather than diminishing protections against government oppression and neglect of the family unit.

In the next chapter, Jaap Doek examines the right to be heard and broader questions about child participation under international children’s rights law. Ton Liefaard then examines the international children’s rights framework for juvenile justice, the progress made since the adoption of the CRC, and the key implementation challenges in light of the complexity of and controversies inherently related to juvenile justice. Next, Marta Santos Pais explores children’s rights law’s response to violence against children, an issue that affects children in every country. Santos Pais details the global policy agenda for confronting violence against children and the barriers that must be overcome to make meaningful progress toward a world free of violence against children. Twila Perry then discusses the international legal framework governing international adoption and critiques of the current system. Perry explores philosophical debates about whether and when international adoption is in the best interests of children, utilizing theoretical frameworks such as postcolonial theory, critical race theory, and feminist theory.

Then, in “Economic and Labor Rights of Children,” Manfred Libel considers what it means for children to have economic and labor rights. His chapter challenges traditional protection-centered constructs of children’s rights. Following that, Ursula Kilkelly explores the child’s right to health and health care and makes the case for an integrated approach to children’s health—across human rights and development fields—in order to secure every child’s health rights.

In tackling the right to education, Laura Lundy and Amy Brown focus not on what these rights are or why they are necessary per se but, rather, the barriers that obstruct the realization of the right to education. In doing so, Lundy and Brown propose their own (p. 6) typology that is based on three themes—relationships, resources, and redress—and they propose to revisit and reclaim the three R’s, re-envisioning them in a way that is more useful to both understanding children’s rights and making them more real.

In addressing the ever deepening relationship between poverty and child rights, Aoife Nolan explains why child rights is an appropriate lens through which to view child poverty, how the CRC has been interpreted when considering the causes, impacts, and responses to child poverty, and the strengths and weaknesses of the current international child’s rights framework in terms of its ability to address the complex global challenge of child poverty.

In the last two chapters of this part, Afua Twum-Danso Imoh and Christine Bakker address the issues of culture and climate change, respectively. Imoh challenges the long dominant dichotomy that situates culture and human rights as antithetical to each other by focusing on sub-Saharan Africa. Bakker, meanwhile, explores how the enjoyment of children’s rights is endangered by climate change and whether the remedies that children have at their disposal are effective in holding states accountable for their failure to protect these rights.

Through each of these chapters, readers can explore in-depth not only relevant law but also key issues—in law and its implementation in practice—critical to advancing children’s rights and well-being.

Part IV: Selected Individual and Institutional Actors

Individuals and institutions play a critical role in the implementation and realization of children’s rights. From children to parents and other caregivers, to professionals who work with children, and to policy makers and international entities, a breadth of key stakeholders in the children’s rights enterprise must be part of the development, implementation, and evaluation of children’s rights law, policy, and programs. This part offers chapters on three of the essential actors in the children’s rights arena. Perpetua Kirby and Rebecca Webb address the role of children as child rights actors. Their chapter considers how Article 12—the right to be heard—of the CRC is realized among very young children, drawing on ethnographic research at primary schools in England. Focusing on an often-overlooked population (young children), Kirby and Webb probe questions around child participation, the role of adults, and whether initiatives for child participation truly work to empower children. Shifting attention from children to state actors, Gerison Lansdown explores the various children’s rights institutions, commissioners, and ombudsperson offices that have been created since the adoption of the CRC. Lansdown examines their utility in facilitating the realization of children’s rights. Finally, in the last chapter of this part, Philip Veerman reviews the work of the UN Committee on the Rights of the Child—the entity responsible for monitoring states’ (p. 7) implementation of the CRC—through a focus on the Committee’s engagement on the issue of caste- and descent-based discrimination.

Part V: Selected Populations

Part V of this volume discusses specific populations of children that merit special discussion because of their historical and current vulnerability. Our intention in this section is not to be exhaustive per se but, rather, to focus on populations that are at the forefront of current national and international discussions regarding international children’s rights, such as trafficked children and children in armed conflict, as well as populations that receive lesser attention but also present unique challenges and concerns for the protection of international children rights, such as LGBTQ children, indigenous children, children with disabilities, and independent children. In the first chapter of this part, Berta Hernández-Truyol begins with a discussion of LGBTQ children, exploring structural inequalities, global attitudes toward homosexuality, and international and regional protections, as well as recommendations for adopting a new child rights paradigm for LGBTQ youth. Addie Rolnick then investigates how international law has sought to protect the rights of indigenous children through various legal regimes. Rolnick’s chapter identifies common themes and potential tensions between the various conceptions of human rights embodied in each regime and considers how international law relates to particular problems faced by indigenous children, such as child removal, poor health, violence and victimization, and over-criminalization.

Maya Sabatello and Mary Frances Layden then explore the state of affairs and legal protections for upholding the rights of children with disabilities and consider some of the prime achievements to date and challenges that persist in the implementation of a child-friendly disability rights agenda. Sabatello and Layden focus in particular on two salient issues for children with disabilities—inclusive education and deinstitutionalization—in exploring the rights of this population of children. Julia Sloth-Nielsen and Katrien Klep then focus on children who find themselves by force, choice, or both, in a situation in which they have to fend for themselves without adult caregivers—or so-called “Independent Children.” In exploring the situation of children in street situations and child-headed households, Sloth-Nielsen and Klep tackle the fundamental question in this area: How can we understand the experiences of children who adopt “adult” roles and act at times with maturity and independence from a child-rights perspective?

The last three chapters of this part address populations of children who confront significant rights violations and also are at the forefront of current political debates and dialogues on children’s rights. Mike Dottridge discusses what it means to be a trafficked child, the international legal framework regarding trafficked children, and some of the challenges in protecting the human rights of trafficked children. Mark Drumbl then discusses children in armed conflict. Drumbl surveys the international law framework on children in armed conflict—in particular, the law that allocates responsibility for child (p. 8) soldiering—and identifies significant gaps where the law fails to achieve positive outcomes for child soldiers. In the final chapter of this part, Sarah Paoletti discusses refugee and migrant children. Paoletti examines tensions that arise between the rights and realities of children subject to the jurisdiction of a country other than their country of origin.

Collectively, the chapters in this part allow readers to start with a population of children, rather than a substantive area of law, and explore the relevance and effectiveness of international children’s rights law to these vulnerable populations of children. In turn, by exploring the lived experience of selected children, these chapters reveal important insights about the content of children’s rights law and the effectiveness of its implementation and enforcement mechanisms.

Part VI: Conclusion

Two chapters with a forward-looking focus make up the final part of this handbook. First, Brian Howe and Katherine Covell address passing the baton on to the next generation by exploring the need for and value of educating children about children’s rights. Then, in the final chapter, we discuss our view of challenges and opportunities in the field of international children’s rights for the twenty-first century.

Notes

(1.) See generally UNICEF, 25 Years of the Convention on the Rights of the Child: Is the World a Better Place for Children? (New York: UNICEF, 2014); UNICEF Innocenti Research Centre, Law Reform and the Implementation of the Convention on the Rights of the Child (Florence: UNICEF Innocenti Research Centre, 2007).

(2.) See UNICEF, Law Reform and Implementation of the Convention on the Rights of the Child, chaps. 7 and 8. See also Howard Davidson, “Does the U.N Convention on the Rights of the Child Make a Difference?” Michigan State International Law Review 22, no. 2 (2014): 514–522.

(3.) See UNICEF, Championing Children’s Rights: A Global Study of Independent Human Rights Institutions for Children—Summary Report (Florence: Innocenti Research Centre, 2013).

(4.) See UNICEF, Championing Children’s Rights.

(5.) See UNICEF, Protecting the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems (New York: UNICEF, 2007).

Notes:

(1.) See generally UNICEF, 25 Years of the Convention on the Rights of the Child: Is the World a Better Place for Children? (New York: UNICEF, 2014); UNICEF Innocenti Research Centre, Law Reform and the Implementation of the Convention on the Rights of the Child (Florence: UNICEF Innocenti Research Centre, 2007).

(2.) See UNICEF, Law Reform and Implementation of the Convention on the Rights of the Child, chaps. 7 and 8. See also Howard Davidson, “Does the U.N Convention on the Rights of the Child Make a Difference?” Michigan State International Law Review 22, no. 2 (2014): 514–522.

(3.) See UNICEF, Championing Children’s Rights: A Global Study of Independent Human Rights Institutions for Children—Summary Report (Florence: Innocenti Research Centre, 2013).

(4.) See UNICEF, Championing Children’s Rights.

(5.) See UNICEF, Protecting the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems (New York: UNICEF, 2007).