Ïðàâî/13. Ìåæäóíàðîäíîå ïðàâî
The Karaganda State
University named after E.A. Buketov
Some Features of the Convention on
the Rights of the Child
In September 1990, ten months after being adopted by the UN General Assembly,
the United Nations Convention on the Rights of the Child came into force. Those
countries which pledged themselves to abide by the provisions of the Convention
now have a legally binding obligation to ensure that their domestic law and
other relevant administrative arrangements satisfy its requirements.
The Convention is one of the most recent additions to a growing
international code of human rights law. Amongst the many instruments that
comprise this code are the two principal UN covenants, the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. Both treaties contain an agreed catalogue
of rights which each state adhering to the treaty pledges itself to recognize. The
catalogue thus becomes an authoritative standard by which to judge the behavior
of governments toward the people they govern. The rights are possessed equally
by all human individuals `without distinction of any kind'; they are `inherent'
and `inalienable' human rights.
Taken as a pair, the two principal UN covenants aim to
provide some kind of comprehensiveness in their catalogue of 'basic rights' and
fundamental freedoms'. Other instruments specify particular rights in more
detail than a general catalogue would allow, or they deal with a particular
category of person such as refugees. The UN Convention on the Rights of the
Child stands somewhere between these two types of international human rights
instrument. Though it deals with a particular category of person - children -
it nonetheless aims to `incorporate the whole spectrum of human rights'.
The UN Convention differs from these previous instruments not only in
respect to its legal standing - it is a formal treaty and not `merely' a
proclamation of general principle - but also in respect of its content. It goes
beyond a statement of what is owed to children by virtue of their `physical'
and mental immaturity', and incorporates some of the rights and freedoms listed
in the more general human rights treaties.
Universal rights and special rights `inherent right to
life', the right to freedom of expression and the freedom of conscience,
thought and religion, the right to social security and the various rights
recognized by the Convention which are already listed in the principal human
rights treaties. There are, however, some notable but unsurprising omissions
from the two UN International Covenants. Not all of the rights said to be
possessed by everyone `without distinction of any kind' are expressly extended
to children by the Convention. Children do not, for instance, have the right to
work, to choose their place of residence or to take part in the conduct of
public affairs.
Some of the rights children possess, they possess in common with all
human individuals. Others they possess because they are children. And there are
yet others which they do not possess for the same reason, because they are
children. If only those rights which are possessed by everyone can be properly
considered as universal human rights, then rights possessed only by children
(if there are any such) are not universal human rights. And by the same
reasoning, rights which are not possessed by children are not universal human
rights.
Most of the
provisions in the Convention specify rights which children possess because they
are children. As with the 1959 Declaration, the usual explanation for ascribing
such special rights to children arise out of their incapacity to provide for
themselves or to protect themselves. They cannot survive, let alone flourish,
without the assistance of others.
Many things however are needed either for human
survival or for flourishing can only be provided through social cooperation. In
these respects no-one, neither children nor adults, can provide for themselves.
Not only are children incapable (more or less) of providing for themselves by
their own unaided efforts (like adults), but they are also incapable (more or
less) of contributing to these cooperative endeavors by means of which individuals
provide for themselves and each other. This incapacity is a basic ground for
recognizing the claims of children to be provided for by others. They should be
provided for both because of and in spite of their `economic' incapacity. Other
groups of similarly incapable individuals, such as the severely mentally
handicapped, have an identically grounded claim. If anything is special or
distinctive about children, it is therefore not that they need to be provided
for; it is that with which they need to be provided.
The Convention requires that 'States Parties recognize
the right of every child to a standard of living adequate for the child's
physical, mental, spiritual, moral and social development'. Whereas the
International Covenant on Economic, Social, and Cultural Rights recognizes a
'right to an adequate standard of living', the Convention recognizes a right to
a standard of living adequate for the child's development. More generally,
children have a claim on others to provide the nurturing and care that they
need in order to develop beyond childhood. The idea of development or
maturation is fundamental to our understanding of the nature of childhood.
Childhood comes to an end when some specified developmental process is
complete. A `thin' idea of this would include only the capacity for sexual
reproduction and a basic economic capacity. A `rich' idea of this development
would include whatever capacities are required for human flourishing. As
Article 27 makes clear, the Convention adheres to a `rich' idea of the process
of child development. (no aspect of human flourishing is to be neglected)
whilst refraining from detail in specifying the capacities that are to be
developed. This choice of a `rich' idea of child development (which reflects a
`rich' idea of human flourishing) is one of the most significant underlying
themes of the Convention. It is important not least because it entails the
rejection of a `thin' idea of child development. Children have a right to be
provided for beyond the age of sexual maturity or the development of their
capacity to be economically productive.
That
`State Parties shall take all effective and appropriate measures ... to protect
children from the illicit use of narcotic drugs ... and to prevent the use of
children in the illicit production and trafficking of such substances'. Several
provisions in the Convention, like Article 33, require that special measures be
taken to protect children from specified harms including sexual abuse, sexual
exploitation and exploitation at work. In some, or perhaps even all, of these
cases it seems reasonable to say that the harm against which children should be
protected is one against which adults should also be protected. For example,
the laws of most countries `recognize the right' of everyone to be protected
against the harm caused by narcotic drugs. How is it that children have special
rights to protection against harms to which everyone is vulnerable? If the
measures taken to protect adults from these harms are deemed inadequate for the
protection of children, then special measures are required in order that
children may be equally protected from this kind of harm. It is usually said
however not only that children have a claim to special kinds of protection, but
also that they have a special claim to protection, a claim grounded in an
incapacity analogous to their economic incapacity. And just as economic
incapacity is not a characteristic possessed only by children, nor is this
second kind of incapacity (an inability to recognize a threat of harm for what
it is?); there are others who are in he same way especially vulnerable to
harms. If children are distinctive in this respect, it is perhaps because they
may be described as `doubly' vulnerable. Harms against which they are especially
vulnerable by virtue of incapacity expose them to an additional harm - the
hindering or distortion of their development as children.
Immediate and progressive rights of the convention
declares that `with regard to economic, social and cultural rights, States
Parties shall undertake such measures to the maximum extent of their resources,
and where needed, within the framework of international cooperation'.
Obligations accepted by States under the various human rights treaties are
usually described as either `absolute and immediate' or 'relative and
progressive'. Those which are either explicitly or implicitly qualified by the
`resources' permitting proviso belong to the latter category. Rights which are
not relative and progressive are absolute and immediate; they come into force
for each state from the moment it becomes bound by the treaty.
Relative
and progressive' rights correspond to what political philosophers have tended
to call `welfare rights'. They represent an individuals claim to some portion
of the products of social cooperation irrespective of the extent of that
individual's contribution to their production. By describing the right as
`relative' the point is made that the size of the portion which the individual
is owed must depend on the size of the whole from which it is taken. By
describing it as 'progressive' it is implied that someone who now receives what
is in one sense his `fair share' of the whole may yet be receiving less than he
ought. It is possible to say this because human needs determine a standard by
which the adequacy of a portion may be judged; people should not receive less
than adequate to their needs (see Article 27 above).
It is an important feature of treaties like the UN Convention on the
Rights of the Child that they are result of negotiation between states whose
conventional moralities will almost certainly differ on many matters relating
to the treatment of children. Moral rights are meant to have a force, which is
independent of any particular conventional morality. Since the outcome of a
truly international agreement on human rights will have this `trans-cultural'
quality, it may appear to have a moral force beyond that which it possesses by
virtue of its legal status alone. Such a catalogue of human rights can claim to
represent the moral consensus of the international community. In addition, many
people would argue that this is as good a method derived from abstruse
philosophical speculations. A consensus approach must be conceded to have its
drawbacks however. The contents of the catalogue of rights will lack the
specificity to decide contested cases. Agreement is usually reached not by
settling controversies, but by moving beyond them to a higher level of
generality.
Any State Party may propose an amendment and file it
with the Secretary-General of the United Nations. The Secretary-General shall
thereupon communicate the proposed amendment to States Parties, with a request
that they indicate whether they favors a conference of States Parties for the
purpose of considering and voting upon the proposals. In the event that, within
four months from the date of such communication, at least one third of the
States Parties favor such a conference, the Secretary-General shall convene the
conference under the auspices of the United Nations. Any amendment adopted by a
majority of States Parties present and voting at the conference shall be
submitted to the General Assembly for approval.
Literature
1. Convention on the Rights of
the Child, November 1989
2. R, Fee, J, Henry, J and Seagraves, L (2009)
Continuing Professional Development Managers and Practitioners working with
Children: Technical Report, Glasgow: Learning and Teaching.
3. Daniel, B and Wassell, S (2002) Assessing and
Promoting Resilience: Jessica Kingsley.
4. Featherstone, S and Featherstone, P (eds) (2008):
Child-initiated learning, London: A&C Black Publishers.