INTERNATIONAL CHILDREN’S RIGHTS
By Vincent Lyn
Most children and adults do not know that children have their own unique set of rights granted to them under international law. Yet the United Nations Convention on the Rights of the Child came into being in November 1989. Every country in the world has ratified it with the exception of one: the United States. It seems that despite helping found the U.N. as an international governing body, the U.S. doesn’t actually like agreeing to any of the resolutions the U.N. proposes?
The Convention has 54 articles, or rights. Its underlying principle is the best interests of the child and the rights can be seen as falling into one or more of its three main thematic areas: protection, provision and participation. Rather than viewing children as passive appendages of adults, the Convention states that they are people with equal dignity who are entitled to respect . It provides them with their own set of rights. It acknowledges that children are vulnerable and that they need special care and protection. It assigns responsibility to adults, service providers, communities and governments. Most radically, the Convention gives children the right to a voice and to participate in all decisions that affect them. In other words, it recognizes children’s right to agency.
In not so distant times many national legal systems classified children along with married women and lunatics as being legally incompetent and thus not entitled to exercise a wide range of rights on their own behalf. Worse still was the fact that, whereas married women and lunatics were considered to be entitled to special measures of protection, children were not. Instead, the earliest legislation such as the Roman patria potestas doctrine treated the child as parental, and usually paternal, property.
Patria potestas, (Latin: “power of a father”), in Roman family law, power that the male head of a family exercised over his children and his more remote descendants in the male line, whatever their age, as well as over those brought into the family by adoption. This power meant originally not only that he had control over the persons of his children, amounting even to a right to inflict capital punishment, but that he alone had any rights in private law. Thus, acquisitions of a child became the property of the father. The father might allow a child (as he might a slave) certain property to treat as his own, but in the eye of the law it continued to belong to the father.Since the early 10th century such assumptions have gradually been abandoned and childhood has come to be recognized as a special status warranting the adoption of special measures of protection. Patria potestas ceased normally only with the death of the father; but the father might voluntarily free the child by emancipation, and a daughter ceased to be under the father’s potestas if upon her marriage she came under her husband’s hand, a corresponding power of husband over wife.
In recent years the children’s rights movement has gathered considerable strength and the adoption of international legal standards has been viewed by many as a particularly useful means to entrench in national law the notion that children have rights. In general those rights overlap significantly with all human rights, but they also extend to a variety of special measures to which children are entitled by virtue of their special vulnerability.
The first efforts at the international level were undertaken by the League of Nations, which established a special committee to deal with questions relating to the protection of children and adopted conventions prohibiting the traffic in women and children (1921) and slavery (1926)., The Geneva Declaration of the Rights of the Child, adopted in 1924 by the Assembly of the League, was not cast in terms of state obligation but of duties declared and accepted by “men and women of all nations” and according to which “the child must be given the means requisite for its normal development, both materially and spiritually.”
Subsequently, the Universal Declaration of Human Rights of 1948 proclaimed a basic catalog of internationally recognized human rights, most of which were equally applicable to children and adults. But only two of its provisions are specifically concerned with children — article 25, which recognizes that “motherhood and childhood are entitled to special care and assistance,” and article 26, dealing with the right to education.”
However, the most important policy statement in this field adopted by the General Assembly is the 1959 Declaration of the Rights of the Child. Stressing that “mankind owes to the child the best it has to give,” the Declaration’s 10 principles affirm the right of the child to receive special protection, to be given opportunities and facilities to enable him to develop in a healthy and normal manner, to enjoy the benefits of social security, including adequate nutrition, housing, recreation and medical services, to receive education and to be protected against all forms of neglect, cruelty and exploitation. Most of these rights were subsequently reaffirmed in treaty form in the International Covenant on Economic, Social and Cultural Rights adopted in 1966.
In addition to those already mentioned, a wide range of other international instruments contain provisions for the protection of children in particular situations.
Definition of a “Child”
The problem of defining both the lower and upper age limits for a “child” has by no means been resolved by the relevant international legal instruments. At the lower limit the question of the rights of the unborn child remains controversial despite the fact that relatively few instruments provide, as does the American Convention on Human Rights, that the right to life must be protected by law and, in general, from the time of conception.
The upper limit varies both according to the legal document and to the activity concerned. Thus, for example, the Supplementary Convention on Slavery of 1956 specifies the age of 18, whereas the 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages leaves it open for states to specify a minimum age for marriage. In the case of child work the International Labour Organization Minimum Age Convention, 1973, does not set a single minimum age for admission to employment but rather distinguishes between underdeveloped countries which may initially 3 set a limit of 14, and others where the limit must be at least 15. The minimum age for dangerous work is generally 18.
The U.N. Commission on Human Rights comprehensive children’s rights treaty (the Convention on the Rights of the Child), states that “a child is every human being to the age of 18 years, unless under the age of his State, he has attained his majority earlier. The endeavor to attain uniformity while at the same time accommodating the existing diversity of national age limits. It nevertheless remains open to the criticism, which may be leveled against most existing rulings, that insufficient recognition is given to the different needs of children of different age groups such as pre-school and school-age children and adolescents.
Protection for Children in Special Situations
Children in Armed Conflicts
Under the terms of the four Geneva Conventions of 1949, children are protected in the same way as are “all persons taking no active part in the hostilities.” The Fourth Geneva Convention provides that, during both international and non-international armed conflicts, all civilians, children being thereby included, are entitled to humane treatment. Nevertheless, none of the four Conventions specifically refers to the need to provide special protection for children. This omission was remedied in the two 1977 Protocols Additional to the Geneva Convention. The 1974 General Assembly Declaration on the Protection of Women and Children in Emergency and Armed Conflict is also important in this context.
None of the existing United Nations instruments on the rights of refugees makes specific reference to the status of children who are themselves refugees or whose parents are refugees. Nevertheless, the practice followed by the United Nations High Commissioner for Refugees has been to treat each case on its merits so that age per se is not a determining factor in deciding refugee status. Article 11 of the Convention requires states parties to ensure that both accompanied and unaccompanied children receive appropriate protection and humanitarian assistance.
Although the General Assembly has adopted Declarations respectively on the Rights of Mentally Retarded Persons (1971) and the Rights of Disabled Persons (1975), neither instrument contains any specific provision dealing with children. The preamble of each does, however, recall the Declaration on the Rights of the Child, principle 5 of which requires that the physically, mentally or socially handicapped child be given “the special treatment, education and care required by his particular condition.” Article 12 of the draft Convention contains detailed provisions on the rights of mentally or physically disabled children.
Although many national legal systems have traditionally accorded an inferior status to illegitimate children, these distinctions have been firmly rejected by international human rights law. Thus article 2 of the Universal Declaration of Human Rights provides that all children, whether they are born in or out of wedlock, shall enjoy the same social protection. This approach has subsequently been endorsed in the Declaration on the Rights of the Child, the International Human Rights Covenants and a 1975 Council of Europe Convention.
For a variety of reasons, the number of cases in which a child is seized by a parent or other relative and removed to another country has grown enormously in recent years. The important of the problem was underlined by the Economic and Social Council in resolution 1982/39. In 1980 the Hague Conference on Private International Law adopted a Convention on the Civil Aspects of International Child Abduction, which is open to ratification by all states. A comparable regional convention was also adopted by the Council of Europe in 1980. The increased international cooperation based upon these formal agreements has aided in the identification and return of abducted children.
Worldwide 218 million children between 5 and 17 years are in employment; 152 million are victims of child labour. Almost half of them, 73 million, work in hazardous child labour. Hazardous child labour is most prevalent among the 15–17 years old. While not all child labor is exploitive, much of it clearly is. Among the most common forms of child labor are: agricultural and handicraft work within the family, handicraft piecework, seasonal agricultural labor, apprenticeships, work in sweat shops, maid work, bonded labor (connected to long-term unpaid debts), prostitution and other forms of sexual exploitation. Other exploitive practices have been dealt with by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in the context of studies on child labor (1982) and contemporary forms of slavery (1984).
Children have international human rights that include the “right to security of the person, to freedom from inhuman, cruel, or degrading treatment, and the right to special protection during childhood.” Particular human rights of children include, among other rights, “the right to life, the right to a name, the right to express his or her views in matters concerning the child, the right to freedom of thought, conscience and religion, the right to health care, the right tom protection from economic and sexual exploitation, and the right to education
United Nations educational guides for children classify the rights outlined in the Convention on the Rights of the Child as the “3 Ps”. Provision, Protection, and Participation. They may be elaborated as follows:
- Provision: Children have the right to an adequate standard of living, health care, education and services, and to play and recreation. These include a balanced diet, a warm bed to sleep in, and access to schooling.
- Protection: Children have the right to protection from abuse, neglect, exploitation and discrimination. This includes the right to safe places for children to play; constructive child rearing behavior, and acknowledgment of the evolving capacities of children.
- Participation: Children have the right to participate in communities and have programs and services for themselves. This includes children’s involvement in libraries and community programs, youth voice activities, and involving children as decision-makers.
Amnesty International openly advocates four particular children’s rights, including the end to juvenile incarceration without parole, an end to the recruitment of military use of children, ending the death penalty for people under 21, and raising awareness of human rights in the classroom. Human Rights Watch, an international advocacy organization, includes child labour, juvenile justice, orphans, and abandoned children, refugees , street children and corporal punishment.
It all sounds peachy, but if you’ve read through this book thus far, you might throw up your arms in disgust and very well ask yourself. “A lot of good all these so-called rights are to children with the current state of the world.” And I will be the first to agree with you…
CEO/Founder at We Can Save Children
Director of Creative Development
Economic & Social Council at United Nations
Middle East Correspondent at Wall Street News Agency
Rescue & Recovery Specialist at International Confederation of Police & Security Experts