Читать книгу Childhood in a Global Perspective - Karen Wells - Страница 18

When a special human rights instrument for children was proposed in 1979 by the Polish government to mark the International Year of the Child, children’s rights were very low on the political agenda. The concept of a global model of childhood that the Convention implicitly expounds was far from universally accepted by the signatories. Many states entered blanket reservations to the Convention of the kind entered by Djibouti, an Islamic state, which affirmed that ‘[t]he Government of Djibouti shall not consider itself bound by any provisions or articles that are incompatible with its religion and traditional values’ (Harris-Short 2003: 135). Several states, including Singapore, entered reservations that subordinated the Convention to national law.

Given that the model of childhood encoded in the Convention follows a well-established Western discourse on childhood as a time of play, innocence and learning, it might be expected that ‘the West’ was happy to ratify the Convention without reservations. In fact, this was not the case. While the United States is the only national state that has not ratified the Convention, the UK entered reservations in respect of immigration law which were only lifted in 2008.

The final draft of the Convention was adopted by the UN Commission on Human Rights in 1989 and came into force on 25 September 1990, just over six months after the signing ceremony and nearly one month before the World Summit for Children in New York. The Summit had originally been planned as an effort to keep children’s rights on the international agenda ‘because no one had anticipated that this would happen spontaneously’ (Cohen et al. 1996: 441).

Despite the reservations entered by many participating states, and notwithstanding the low level of interest in children’s rights and even opposition to the very idea of a separate human rights instrument for children, since the Convention came into force the field of international children’s rights law has proliferated. There are now over a hundred instruments of international child law (Angel 1995; Van Bueren 1998; Saulle and Kojanec 1995).

The UNCRC is the first document of international law that expressly invests the child with political rights. Cynthia Price Cohen, who was involved in the drafting of the Convention, held the view that the US delegation to the working party was instrumental in ensuring that the Convention shifted the understanding of children’s rights towards participation (Cohen 2006). She notes that it was the USA that proposed the inclusion of articles on freedom of expression (Article 13), freedom of religion (Article 14), freedom of association and assembly (Article 15) and the right to privacy (Article 16). These are all classic liberal principles and it is fitting that the USA, which views itself as a quintessentially liberal state, should have introduced these Articles into the UNCRC; even if it is at the same time ironic, since the USA has never ratified the UNCRC. These Articles are intended to limit the power of the state over the individual, which is the classic aim of political rights. Furthermore, Article 12, which is usually cited as the Article that makes the UNCRC a participatory rights-bearing instrument, and therefore limits the reach of the state over the lives of child-citizens, does not, in fact, grant political rights in this sense to children. Article 12 says that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. (emphasis added)

Since the UNCRC is unenforceable unless it has been adopted into domestic law, the right to participation apparently made available by Article 12 is far from guaranteed. In addition to this, when children’s participation is sought it is generally an institution that initiates the opportunity for children to participate. Children who do participate in institutionally driven agendas often find the process tokenistic and in general cannot claim any representation for a wider group of children (Lyon 2007). Children are ‘typically recruited to participate in distinct ways on selected issues for the production of a particular kind of information’ (Kallio 2012: 85, emphasis in the original). Further, Article 12 limits participation to ‘proceedings affecting the child’ and this participation can be accomplished ‘either directly’ or ‘through a representative or an appropriate body’.

In 2012 the General Assembly of the UN adopted a third Optional Protocol to the UNCRC on a ‘communications procedure’. This allows individual children, groups of children or their representatives to bring complaints to the UN Committee on the Rights of the Child about the violation of their rights as set out in the UNCRC and its Optional Protocols. These complaints, known in the language of the Optional Protocol as communications, can only be brought to the Committee if the complainants have already tried to get satisfaction at the national level. Although this instrument gives children a more direct route to the satisfaction of the rights set out in the UNRCR, it does not alter the fact that those rights are largely organized around education, health and welfare rather than classic political rights. Articles 13, 14, 15 and 16 (freedom of expression, religion, assembly and privacy) are the articles that are within the scope of classic political rights; however,

the role accorded to parents and others responsible for the child under Article 5 . . . suggests, in practice, that children’s enjoyment of these . . . rights may not be as expansive as that of adult-holders of similarly expressed rights under non-child-specific international human rights instruments. That is due to the fact that the exercise of civil and political rights accorded to adults under international human rights law is not linked to adults’ evolving capacities. (Nolan 2010, cited in Langlaude 2010: 38)

In the UNCRC and in the international declarations that foreshadowed it the child remains a special category of person who is entitled to protection from harm by virtue of their specific vulnerabilities. International law establishes who the child is: vulnerable and dependent but, at the same time, an emergent liberal citizen.