CHAPTER FOUR CHILDREN’S RIGHTS
There is no doubt that children, being human beings, are entitled to the rights enunciated in the various human rights instruments discussed in chapter three. They are also entitled to special protection by virtue of their age and legal capacity. This chapter looks specifically at the rights of children with emphasis on the rights and interests outlined in the UN Convention on the Rights of the Child, 1989 (hereinafter ―the UNCRC‖).
THE ORIGIN OF CHILDREN’S RIGHTS
In the African setting, most societies had a higher regard for adults that children, and amongst children, for boys than girls. Among the Kikuyu and the Maasai of Kenya, during the cattle raids, the young men had to return home with cattle and young girls, as part of their newly acquired wealth.1 Among the Samburu community of Kenya, it was considered (and still is by some) a curse to give birth to twins, and they were left by the roadside to be eaten by wild animals.2 In most communities, a disabled child was an abomination, and most were killed right after birth.3 Indeed, a story is told in African mythology of a certain king who had five wives who bore him only daughters. He longed for a son, and issued a decree that henceforth, all children born, if not sons, should be thrown into a river and left to drown. His least favourite wife gave birth to a son, but the other wives, knowing she would get the king‘s favour conspired to kill the baby and lie to the king that it was a baby girl. As fate would have it, the boy did not drown but was saved by a farmer, who brought him up and told him the truth that he was born into royalty but was thrown away like a girl. He subsequently reunited with his birth mother and the king bestowed great honour on his son and wife.4
In ancient Athens, the father had the right to decide whether to keep a newborn baby or dispose of it, and abandoning a child did not count as homicide. Moreover, children could be sold into slavery and parents were under no legal obligation to raise children. Children born to an unmarried woman were not even considered to be citizens. As a general rule, children and women could not be expected to act autonomously and men were responsible for controlling and protecting them. Children had a duty to honour their parents, but had no particular rights owed to them.5
Under Roman law, a father had absolute power, patria potestas, over his children.6 Though it would be unfair to say that parents did not love their children in Roman times, it is clear that the children belonged to them, had no rights of their own, and were brought up according to the parents‘ absolute desires and the customs of the day.
During the time of Blackstone‘s commentaries in England (18th century), there was a sense that fathers owed obligations to provide maintenance, protection and education to their children. However, these were mere moral obligations; there were no corresponding legal rights that children could assert.7
The influence of natural law thinkers such as John Locke and John Stuart Mill is frequently noted in this respect. For Locke, parents had a duty to take care of their offspring ―during the imperfect state of childhood … [and to] govern the actions of their yet ignorant non-age, till reason shall take its place and ease them of that trouble.‖8
Similarly, Mill excluded children from his principle of liberty because they were not ―in the maturity of their faculties … and must be protected against their own actions as well as against external injury.‖9
In England, in the mid 17th century, there was an emphasis on status and classes within society, and children often occupied positions of great power arising from their lineage in a bid to reinforce status relationships.10
During the era of American colonisation (from the late 16th century to the mid 18th century), the widespread belief that children were immature and incapable of looking after themselves physically, mentally, and emotionally, took root. Childhood became a distinct legal status because children were perceived as lacking the ability to form their own judgments.11
Towards the end of the nineteenth century, a nascent children‘s rights movement opposed the view that children were primarily quasi-property and economic assets. The progressive movement, which continued into the early part of the twentieth century, focused on broad child welfare reforms as being integral to the development of a more humane society.12
SHOULD CHILDREN HAVE RIGHTS?
In emphasising the importance of rights, Freeman notes as follows:13
―Rights are important because possession of them is part of what is necessary to constutite personality. Those who lack them are like slaves, means to others‘ ends and never their own sovereigns.‖
Narveson14 argues that there must be certain features or properties in a ―right‖ such that others have good reason to acknowledge the obligation to refrain from interfering with them, or to help other bearers to do the thing that they have a right to do.
Richards15 thinks that the deep structure of the rights thesis is equality and autonomy, while Kant16 expresses this by asserting that persons are equal and autonomous in the kingdom of ends. It is the normative theory of equality and autonomy that form the basis of the Rawlsian contractarian conception. If we are to apply this equality and autonomy to children, it would follow that to respect children‘s rights would mean granting them equality and autonomy. Freeman17 cautions however that this autonomy must not have deleterious impact on the child‘s life chances.
The phrase ―children‘s rights‖ was once described as a slogan in search of a definition.18 By account of their tender age, vulnerability and the fact that they often have an adult making decisions on their behalf, children have been subjected to double standards. Adults enjoy unlimited rights while those of children are exercised subject to those of their guardians. They are marginalised in an adult-dominated world.19
In my opinion, children rights have become legal rights by the enactment of legislation in various jurisdictions; however the moral foundation of these rights remains a grey area. There is no contention that we believe that it is morally important that adults should be regarded as rights-holders with all the benefits that this entails. In the same breath, we may rightly say that children have moral rights because they have that independent intrinsic value which places them at par with other human beings in terms of their worth and justifies the imposition of duty on others.
Dworkin20 argues that if persons have moral rights to something, they are to be accorded these rights even if a utilitarian calculation shows that utility would be maximised by denying it to them. He believes that we should focus on the idea that all other principles derive from the principle of equal concern and respect for each person.
MacCormick defines a moral right as a right to that which is ―a good of such importance that it would be wrong to deny, or withhold it from any member of a class.‖21
Locke‘s assertion that ―children … are not born in this state of equality, they are born to it‖22 captures a widespread intuition that infants are born to personhood and thereby to a certain moral status.
Efforts to internationally recognise children‘s rights started way back during the time of the League of Nations, when conventions dealing with trafficking in women and children (1921) and prohibition of slavery and slave trade (1926) were formulated. The International Labour Organisation adopted many instruments against the exploitation of child labour and for the protection of the working child. The Declaration on the Rights of the Child of 1924, which related to the rights of children affected by the Great War and its aftermath, focused on food, shelter, health care and care for orphans.
In 1959, the UN adopted the United Nations Declaration of the Rights of the Child (hereinafter ―UNDRC‖), which emphasised duties to children and set out ten rather vague principles. The principles enumerated by the UNDRC included children‘s rights in the rubric of fundamental human rights and focused on children‘s rights as arising from their dependency needs, rather than as being autonomous, individual rights.23 For instance, principle 6 of the UNDRC provided for the full and harmonious development of children‘s personalities through love and understanding, through growing up in the care and under the responsibility of parents, and ―in any case, in an atmosphere of affection and of moral and material security.‖ Importantly, the UNDRC identified the best interests of the child as the paramount consideration for states in enacting laws to promote child development (principle 2). Between 1959 and 1989, there was an accelerated growth in children‘s rights awareness, culminating in the declaration of 1979 as the international year of the child. After ten more years of discussions and negotiations, the UNCRC set forth a broad range of dependency, autonomy, and equality rights.24
The definition of children is contained in article 1 of the UNCRC, which provides that a child means every human being below the age of 18 years, unless under the law applicable to the particular child, majority age is attained earlier.
THE PHILISOPHICAL UNDERPINNINGS OF CHILDREN’S RIGHTS THEORY
Some of the most interesting arguments and counter-arguments that I have come across relate to the various theories advanced in affirming or denying the existence of children‘s rights.
Indeed, Coady25 opines that we need to be alive to the constraints that exist in discussing these theories. He states that we need to realise that positive rights need a justificatory underpinning of a broadly moral kind, and that the real-politik theories that meet this criterion are inappropriate in discussing children‘s positive rights since children have little influence on political power. He adds that a philosophical account of rights must also recognise that rights function as checks against the project of doing good, to others and to oneself, to avoid harm in the process of exercising rights, since, in some circumstances, it may be wrong to exercise a right. Coady also cautions that discourse on children‘s rights must be realistic and unsentimental about childhood and adulthood; that children (just like adults) can be inspiring and delightful, tiresome and irritating, loving and altruistic but also cruel and selfish. Coady also says that we must accept that there may be no single analysis of rights that may cover all nuances and functions of rights talk. We may have to accept that every theory has its own important analysis, and look at them in a holistic manner.
The following is a brief analysis of some of the prominent theories advanced to justify existence of entitlements accruing to children:
The power (will) theory of rights
According to the power theory of rights, a right is a normative capacity that the bearer may choose to use for the furtherance of his or her own interests, a sanctioned exercise of legitimate control over others.26 The beacon of this theory is capacity to choose to enforce or waive the right. From this theory it follows that small children, being in no capacity to choose to enforce or forfeit, have no rights. Though this theory recognises that a proxy, such as a parent, may exercise the right on behalf of the child, this is less than the full possession of the right since the bearer‘s will, which is paramount for the exercise of the right, is not involved. The proxy would therefore be exercising the right almost as the right-holder. Consequently, children can only have rights once they acquire adult-like capacities to claim and enforce them, and even this is taking the liberal view of the power theory.27
This theory is grounded in the paternalism of the early natural law thinkers Thomas Hobbes, John Locke and John Stuart Mills.28 Hobbes based his writing on the fear of the father as the head of the family (arguing that a child could only be protected if he entirely depended on the father) and comparing the relationship of the father and child to that of a sovereign and subject (where the subject had to surrender some of his rights to get the protection of the sovereign).29 One cannot help but wonder what Hobbes thought of the relationship between a mother and child, if at all he had any regard for it. On his part, Locke espoused that children are in a temporary state of irrationality and ignorance but would later achieve reason in adulthood. This temporary state demanded that parents take control on behalf of their children.30 Mill on his part seemed to advocate for unqualified paternalism over children because of their incapacity to make their own decisions.31
The interest theory of rights
The interest theory of rights defines rights as a normative defence and furtherance of interests.32 Children have rights if their interests are the basis for having rules which require others to behave in a certain way with regard to these interests. There is no presupposition that rational capacity is a prerequisite for the expression of these interests, nor is the choice of the interest-bearer a consideration.33
Power theorists argue that the interest theory reduces rights to mere assertions, thereby missing the distinctiveness of rights, and that there is no way of identifying the distinctive feature of rights-creating interests. In their defence, interests theorists argue that duties that go with correlative rights may be distinguished from other duties by the fact that they are grounded in the interests they serve. Interest theorists can also explain a wider range of rights than power theorists who restrict themselves to capacity and choice.34
Brighouse,35 while protesting the notion that children have rights, looks at what he calls the child-centred strategy, which acknowledges children‘s interests to be central. However, he argues that granting children rights is inappropriate as a means of protecting these interests. In this strategy, the moral status of children does not become lesser or greater. Children count equally as adults, but their interests require different protective mechanisms. Brighouse argues that protecting children‘s interests as rights inevitably leads to neglect of some of the most fundamental interests.
In their contribution to the interest theory of rights, Goodin and Gibson support an alternative model of rights for children when they say:36
―It does not matter that right holders are not in a position to assert rights.… what it is to be a right holder … is to merely be a direct intended beneficiary of someone else‘s duty-bound performance…. All that is strictly required (to be a right holder) is that one has interests which are recognizable by others who are duly empowered, by the moral community more generally, to press those claims on one‘s behalf.‖
Since rights then are supposed to protect fundamental interests, children will be beneficiaries of rights, and even if they cannot claim them, they have trustees who can claim them on their behalf, and there must be a way of holding the trustees accountable.37
Brighouse38 argues that the rights that can be attributed to children are welfare rights, which are interest-based, as opposed to agency rights, which are choice-based. Brighouse39 further argues that welfare rights justify themselves, a starving man needs no further justification for his need of food, the fact that he is starving means he needs food. Adults, unlike children, have the agency rights, and therefore choices, to waive their welfare rights.
Arguments for and against the will and interest theories of rights
MacCormick and Campbell on the interest theory of rights
According to MacCormick,40 children have interests that require people to behave in a certain way towards them and as such their rights are not determined by their capacity to act rationally. Indeed, the existence of these rights precedes the duty towards them; since children have a right to nurturance and care, parents have a duty to provide nurturance and care.
Campbell41 considers the approach of rights by basing them on interests as making them subordinate; these interests can easily be brushed aside thus negating the rights attached to them. This theory assumes that the person who has a duty arising out of the children‘s interests always has the best interests of the children at heart, which assumption we all know is a far cry from reality. Many people assume that children have love and compassion from their guardians and that childhood is a golden age full of bliss where there are no responsibilities. Indeed, Freeman considers a fallacy the idea that childhood is a golden age, synonymous with innocence, a time of freedom, joy and play when children are spared the rigours of adult life.42 In a world full of abuse, poverty, disease, exploitation, war and famine, for many children, childhood is no bliss.
Eekelaar on the interest theory of rights
Eekelaar43 looks at children‘s rights in terms of the interest theory, stating that the test is whether someone has an interest which is sufficient ground for holding another to be subject to a duty. A key precondition for this theory is a social perception that an individual or a class has certain interests, capable of isolation from the interests of others. Since children lack information or ability to decide what is best for them, some kind of imaginative leap and a guess of what the child might retrospectively have wanted once he or she reaches maturity is considered. Three kinds of interests form the foundation of these leaps:
Basic interests: This refers to children‘s claims to physical, emotional and intellectual care, and the duty to fulfill these interests falls on parents and guardians, failure of which the state would intervene.
Developmental interests: All children should have equal opportunity to maximise the resources available to them during childhood and to maximise the degree to which they enter adult life affected by avoidable prejudices incurred during childhood. These interests are also asserted against the wider community. Eekelaar doubts whether they are legal rights, because, though the law imposes a duty on parents to fulfill these interests, their fulfillment depends on natural dynamics of the family and society at large.
Autonomy interests: These refer to the freedom of the child to choose a lifestyle and to enter into social relations free from control of parents and other adults. These interests are subordinate to the other two.
TABLE OF CONTENTS
CHAPTER ONE: INTRODUCTION
1.1 RESEARCH PROBLEM
1.2 RESEARCH METHODOLOGY
1.3 OUTLINE OF THESIS
CHAPTER TWO: CHILDREN IN ARMED CONFLICT SITUATIONS
2.2 CASE STUDIES OF CHILDREN CAUGHT UP IN ARMED CONFLICT
2.3 THE IMPACT OF ARMED CONFLICT ON CHILDREN
CHAPTER THREE THE ORIGIN AND DEVELOPMENT OF HUMAN RIGHTS
3.2 DEFINITION OF THE CONCEPT “RIGHTS”
3.3 THE ORIGIN OF RIGHTS
3.4 NATURAL RIGHTS
3.5 LEGAL RIGHTS
3.6 MORAL RIGHTS
3.7 HUMAN RIGHTS
3.8 CONCLUSION 124
CHAPTER FOUR: CHILDREN’S RIGHTS
4.2 THE ORIGIN OF CHILDREN’S RIGHTS
4.3 SHOULD CHILDREN HAVE RIGHTS?
4.4 THE PHILISOPHICAL UNDERPINNINGS OF CHILDREN’S RIGHTS THEORY
4.5 AGE, AUTONOMY AND STATE INTERVENTION
4.6 SUBSTANTIVE RIGHTS UNDER THE UNCRC
CHAPTER FIVE: THE “BEST INTERESTS OF THE CHILD” PRINCIPLE
5.2 WHAT, THEN, ARE INTERESTS?
5.3 THE HISTORICAL UNDERPINNINGS OF THE BEST INTERESTS OF THE CHILD PRINCIPLE
5.4 WEAKNESSES INHERENT IN THE BEST INTERESTS OF THE CHILD PRINCIPLE 1
5.5 CONFLICT OF INTERESTS IN THE APPLICATION OF THE BEST INTERESTS PRINCIPLE
5.6 RESOLVING THE BEST INTERESTS OF THE CHILD CONFLICT
5.7 CONCLUSION – COMPLEMENTING THE BIC
CHAPTER SIX INTERNATIONAL HUMANITARIAN LAW AND THE PROTECTION OF CHILDREN IN ARMED CONFLICT SITUATIONS
6.1 INTERNATIONAL HUMANITARIAN LAW
6.2 THE INTERPLAY BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW
6.3 THE PROTECTION OF CHILDREN UNDER INTERNATIONAL HUMANITARIAN LAW
6.4 THE RELEVANCE OF THE BEST INTERESTS PRINCIPLE DURING CONFLICT
6.5 CONCLUSION: EMERGING TRENDS
CHAPTER SEVEN INTERNATIONAL MECHANISMS FOR PROTECTING CHILDREN AFFECTED BY ARMED CONFLICT
7.2 THE INTERNATIONAL COMMITTEE OF THE RED CROSS
7.3 THE UNITED NATIONS EFFORTS
7.4 THE INTERNATIONAL CRIMINAL COURT (ICC)
CHAPTER EIGHT CONCLUSION
8.2 WAR NEGATES THE BEST INTERESTS OF THE CHILD
8.3 THE BEST INTERESTS OF THE CHILD AND THE NOTION OF THE WESTERN CHILD
8.4 THE APPLICATION OF THE BEST INTERESTS OF THE CHILD DURING ARMED CONFLICT
8.5 IT IS NOT YET OVER
8.6 CONCLUSION: THE LEAST DETRIMENTAL ALTERNATIVE
GET THE COMPLETE PROJECT
THE APPLICATION OF THE BEST INTERESTS OF THE CHILD PRINCIPLE TO PROTECT THE INTERESTS OF CHILDREN IN ARMED CONFLICT SITUATIONS