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Childhood and Rights: Reflections on the UN Convention on the Rights of the Child1 Catarina Toms2 catarinatomas@gmail.

com Key Words: childhood, rights, globalisation, Convention on the Rights of the Child. Introduction The importance of the issue of childrens rights has been formally acknowledged across the world, a development that has reflected by legislative changes in many countries in recent years. In spite of this and the development of the discourse related to the promotion of childrens rights within social and political institutions, we are still, however, very far from an ideal situation in terms of respect for these rights. It is, nonetheless, important to understand the process of the construction of childrens rights that led up to the worldwide legal and normative model that exists today and within this, the centrality of the United Nations Convention on the Rights of the Child (henceforth referred to as CRC). This article focuses on the debate about the CRC associated with the process of globalisation and, in particular, in the promotion of two mechanisms: legislative harmonisation and unification on the one hand, and standardisation of the worldwide conception that children have rights, on the other. This article also highlights the need to discuss the CRC in the light of the concept of childhood cosmopolitism; in other words, approaching the issue from a bottom-up perspective using the contributions of non-hegemonic actors and paradigms. For some years, there has been a widespread and ongoing discussion over childrens rights but it has recently become more complex, not only becoming a global question but one that has to be addressed in a context that goes well beyond the limits of neo-liberal hegemonic globalisation. This perspective suggests that societies are ruled by order and progress and therefore need only consolidation but it is a position that fails to take account of the search for social emancipation through lawful means, which is a counter-hegemonic process and, for this reason, encounters severe resistance.


I am deeply grateful to Adrian James for his comments, which helped me to revise this article. Sociologist, Institute of Child Studies of University of Minho, Portugal. 1

Legislation protecting children had its beginning in the 19th century, when the child was the object of the first legal Act which established the minimum age for working in the coal mines (e.g. The Mines Act, 1842 in the UK). It might therefore be argued that, in social and historical terms, the discovery of childhood and its distancing from the world of adults began with a process of the protection of children from the worst excesses of the industrial revolution, especially in the 19th and 20th centuries (Hendrick, 1994). The question that arises now, however, is how we should characterise the 21st century in relation to childhood and children: will this be the time for promotion and guarantee of childrens rights? will this period be one in which we see the construction of a new paradigm that no longer considers childrens rights as extra rights (Leach 1994) i.e. as specific rights of one social group that are built at the expense of other rights? These and other issues will be the focus of the rest of this article. Globalisation, Childhood and Rights The globalisation of the themes associated with childhood in the 1980s resulted in a significant growth in international activity in favour of the defence of childrens rights. This phenomenon has resulted in the multiplication of non-government organisations (NGOs), social movements, and meetings and forums dedicated to childhood. The collaboration between NGOs, governments and UNICEF, according to Pilotti (2001), reinforces the confidence in the capacity of the international community to influence governments through resolutions and recommendations, especially those that are elaborated and approved at the United Nations. Consequently, there is now an emergent transnational movement fighting for childrens rights, which is called childhood cosmopolitism (Toms and Soares, 2004; Toms, 2006), which constitutes a form of counter-hegemonic globalisation, a project in which various battles, projects, actors, pluralities and diversities cohere, most of the time collaborating among themselves, in the defence childrens rights. This is something that can be seen in the context of various organisations (UNICEF, Childwatch International, International Save the Children Alliance, among others), as well as in some governmental programs, private programs, scientific areas and legislation. This discussion of childrens rights and the CRC has been described as a legitimate agonistic space - i.e. a space where conceptions confront each other which are distinct or opposed to the problem under debate, just as are the actors [who are legitimately admitted to this space] who give voice to these conceptions (Nunes and Matias, 2003: 132). It is important therefore that childrens rights be discussed at a procedural level in terms of their social context and from a perspective of inclusion, of citizenship and of globalisation. Additionally,

however, they should be examined from a critical standpoint in relation to a historical process that is characterised by thinking that leads to supposedly universal and unquestioned preconceptions about children and childhood. It is therefore necessary to continually reinforce the notion and the agenda of childrens rights and to think with an emancipated logic in relation to children. If we do not, we run the risk of finding childrens rights being concerned only with instrumental rationality, with technical and rational formalism, and with the logical and coherent application of laws. This risk is evident in the discussion that has so far prevailed about childrens rights, which has predominantly constructed these as an issue of legal concern, often without inadequate acknowledgment of structural complexities and the social, economic, political, cultural and ethical conditions in which rights have to be located and understood. Such an approach attempts to monopolise the debate about what childhood is intended to be and leads instead to a kind of ideal childhood, the idea of the global child, which can be seen, for example, in the analysis of the reports produced for the UN Committee by countries that ratified the CRC. This raises yet another important question - that of the social and political appropriation by governments, organisations and institutions of the discourse on the rights of the child and the best interest of the child. The CRC: harmonisation, unification and standardisation Although the UN endorsed the Declaration of Human Rights on 10th December 1948, childhood did not feature in it as an area of particular concern that required special provisions to be made and it was only in 1959 that the General Assembly of the United Nations promulgated the Declaration of the Rights of the Child. It was not until 1979, however, that the International Year of the Child was celebrated and a UN working group that had been proposed by the Polish government began to prepare a draft Convention on the Rights of the Child. Thus is was only towards the end of the twentieth century, with the adoption in 1989 by the UN of the international Convention on the Rights of the Child (CRC), that the child came to be considered as a full citizen, complete with the capacity to be the bearer of rights, a development that was followed soon afterwards by the Action Plan for the implementation of the World Declaration on Survival, Protection and Development of the Child, at the World Summit for Children, in 1990. The CRC is the most ratified of all the treaties on human rights and implies an array of important changes in the social group of childhood, namely the introduction of the idea of childrens participation, recognising for children similar rights to those of adults. The governments that approved the CRC committed themselves to allow children to develop their potential in a context without hunger, without poverty, without violence, without negligence or other injustices or

hardships, respecting at the same time their civil, economic, social, cultural and political rights. Thus the treaty came to endorse, for the first time,, the idea that the child should be considered a being in possession of rights and of fundamental liberties. On the basis of this, UNICEF argued that all programmes to be implemented should reflect the principles of the CRC, since it would then become a reference point, setting standards all over the world regardless of whether a country had ratified it or not. The CRC therefore became a model of global consensus. With the adoption of the UN Convention, childrens rights were no longer an option, to be granted at adults discretion or out of mere sympathy - they became a source of clear legal obligations that the 193 Member States (as at February 2007) were required to implement. Thus, the signature and subsequent ratification of the CRC by almost all of its Member States can be understood as a phenomenon of trans-nationalisation of the juridical field (Santos, 1995). This means that the protection of childrens rights is not merely an issue that lies within the exclusive competence of individual nation states but is one that has assumed a more and more global configuration. For this reason, it is mandatory, at least in principle, for national states to adhere to the international legal instruments that regulate this area. It might therefore be argued that that the CRC, in conjunction with the process of globalisation, has had important effects on contemporary societies in the promotion of two mechanisms. The first one is legislative harmonisation: the CRC is the first international instrument which is legally binding and which incorporates the complete range of human rights civil and political rights, as well as economic, social and cultural rights. In ratifying the CRC, national governments have committed in protecting and assuring childrens rights and have accepted the responsibility, before the world, of enforcing this Convention. The normative influence of the CRC resulted from the fact that, by the action of ratifying the Convention, Member States were agreeing to actively pursue the child rights agenda. As a consequence of its almost universal ratification, it therefore provides the whole world with shared norms and values in relation to childhood, as a result of which it can be argued that the CRC effectively rebuilt the legal space of each country and apparently created a much greater degree of international uniformity than hitherto. However, it might also be argued that this is more apparent than real when viewed in the light of the critical voices raised, mainly on the part of some African3

The Organisation of African Union (OAU 1963), replaced by the African Union (2002), was the first regional organisation to adopt its own treaty on the Rights of the Child in Africa. Mozambique adopted its own Declaration of th the Rights of the Mozambican Child in the 5 session of the Popular Assembly. 4

and Arab4 countries that ratified the CRC but pointed out its western and hegemonic spirit. Indeed, and in spite of the universal character of the Convention, some countries have felt unable to give their full approval to its provisions and have entered reservations on the grounds that some principles and provisions are not consistent with their cultural context of the domestic legislation that is already in force. Thus it has been argued that the Convention should not be allowed to raise the same expectations as internal legislation since, by very its nature, it is more difficult to assure efficient cooperation and uniform application at the international level and, in the absence of a supranational authority, to demand action at various levels (Duncan, 2001). The second process promoted by the Convention was one of an increasing global unification around the concept that children have rights, that they are subject to rights and to and standardisation the conception of what should be the ideal childhood5. Because, as Pilotti (2001) argues, the dissemination of the CRC in the 1990s could be characterised as the circulation of a text without a context, the debate triggered by the CRC has been increasingly contextualised with reference to the emerging discourse about the globalisation of the dominant ideas about childrens role in contemporary western society. In particular, some vital processes of modernity are highlighted, such as the functions and images attributed to childhood in the context of the consolidation of individualism and of the State. It has been argued, however, that the parallel and simultaneous occurrence of the same phenomenon in different countries does not make a global phenomenon, unless the endogenous causes, different from one country to another, have among them structural resemblances and share elements of common and transnational causes (Santos, 2001:92). It is therefore important to consider whether this is the case with childrens rights. The CRC has given greater visibility to the way in which childrens rights have been considered at a local, national, trans-national and international level, but it has also given a legal and symbolic framework within which to consider the ways in which children experience their childhoods. Consequently, not only has there been increasing debate about the way in which many children live their lives and how this can be improved but they are now recognised as social actors, at least from the symbolic and theoretical standpoint.

It should be noted that the effort of Arab countries in relation to childhood protection at the institutional level was started by the Ministers of Social Services in 1979 with the social work strategy of the Arab world. In the same year, the Arab League and the council of Social Service Ministers proclaimed the rights of Arab children in the Charter of Rights of the Arab Child, a series of rights aimed exclusively at Arab children, excluding foreign children who live in Arab countries and/or the non-Arab minorities of these countries. 5 See Toms (2006). 5

We can therefore view the 1980s and 1990s as a period in which there has been an increasing codification of the rights of the child and the creation of social justice for children. However, these legal, abstract and universal norms have not always corresponded to social practices and the Save the Children Fund (Hilary, 2002) suggest that the world seems to be moving away from the promise to create a better future for children and that the commitments initially made are fading away. Hilary also argues that, since Somalia and the USA have neither signed nor ratified the CRC, it is difficult to talk about a global agreement without the support of all the countries of the world. That there is a formal acknowledgment of childrens rights but a lack of priority given to their implementation and promotion is obvious at nearly all levels. On the one hand, the international conventions and treaties reinforce and legitimise the policy documents promulgated by governments but on the other, these same documents have only a marginal impact on the child population since their mere endorsement does not offer guarantees of promotion, implementation, or even security. Indeed, if there is no effective supervision over and enforcement of the way in which each country promotes and guarantees the CRC, besides the periodical writing of reports for the International Committee on the Rights of the Child, it is foreseeable that in a decades time, we will still be able to say only that it is the most ratified international document; the rights to protection, to provision and to participation are universally recognised for children but the problem resides in the way they are, or are not, put into practice. A variety of difficulties and resistances related to the application of the provisions of CRC after its ratification have emerged, mainly as a result of cultural mechanisms through which global ideas are received in local contexts. In addition, there are also cultural specificities for each Member State in the national process of enacting the principles embodied in international human rights agreements (Pilotti, 2001), quite apart from the social, economic, political and legal specificities of each country. Beyond this, however, the application of some of the civil rights for children contained in the CRC demonstrates that this idea is not universally accepted, because of a dual perspective towards children i.e. they are viewed as individual rights-bearing citizens on the one hand, and as dependent on the other. This ambiguity defines the position of children, since they are already invisible as individuals from the statistical and legal points of view (Toms and Soares, 2004) and seen as subordinate to adults. Thus although it might be argued that childrens lives have improved significantly in recent decades (Unicef, 2007) and that many changes continue to unfold, the further passage of time and

a profound change in both structural conditions and in social and economic policies will be necessary in many countries in order to promote and guarantee the rights of children. More importantly, a major challenges continues to be the need to transform the authoritarian, paternalistic and discriminatory practices of adults, which have characterised the everyday life of children in the throughout the world. It has therefore become imperative to implement effectively the laws and agreements which have already been agreed on and ratified (Rizzini, 2004:34). Is the Convention a juridically inflexible and immutable text? Nearly two decades after its birth, therefore, it is necessary to carry out a profound and critical reflection on, and revision of, the functioning of the CRC in order to improve its efficiency and to adapt to the many changes there have been in contemporary societies since it was adopted by the UN. Thus, for example, Bissell (2001) argues that the nation-states that participated in the drafting of and later approved the CRC are the authors and guardians of the globalisation of childhood but it must be asked whether nation-states, in the framework of a hegemonic globalisation, really have the power or authority to act according to the responsibility that is given to them by the CRC. This seems to be a challenge contained within the wider question of the sovereignty of the state; yet another question is whether defending the perspective of children as social actors, even if everyone does so, will make it into a shared collective belief. On the one hand, childrens rights have been gradually adopted and applied in different countries because States share the same interstate systems and political changes are in part conditioned by economic development. [O]n the other hand, these same reasons suggest that evolution varies significantly from one state to another, according to its position in the interstate system and to the national society in respect of the world-economy system (Santos, 1995: 22). Thus in spite of being accepted to varying degrees by the majority of western countries, the acceptance of the idea of childrens rights in many in many other parts of the world has progressed little, in practice, since the Convention was first adopted by the UN. Besides this, it is important to acknowledge that some of the key concepts, present in the CRC are vague, indefinite, ambiguous and highly contested (Nelken, 1998; Van Bueren, 1998; Freeman, 2000). Thus, for example, when we refer to Article 12, which embodies childrens rights in relation to participation, the CRC states that all children capable of formulating their own judgement have the right to express their opinion on the subjects that affect them. However, there is some ambiguity over the way in which, in the adult world, the nature of participation is understood. In upholding the capacity of discernment as a crucial ability for the child to enable

participation in its everyday world, a wide range of interpretations have been made possible that depend on the objectives of adults, amongst which may be the prevention of childrens access to participation (Smith, 1997; Toms and Soares, 2004). The same problem arises with the term maturity. Lucchini considers that maturity is defined by cognitive competences and empathetic capacities. The child is, therefore, capable of anticipating what is expected of him or her and, consequently, is also capable of deciding if he or she wants to or should respond to these expectations (2003:12). This definition is itself subjective, however, and is further limited by the fact that it does not consider the various contexts in which a child is situated. Another important ambiguity concerns the actual definition of the concept of the child within the CRC; specifically, Maehira (2004) raises the issue of which moment should be viewed as the beginning of a child's existence, a question related to debates over the voluntary interruption of pregnancy, medically-assisted reproduction and to the different religious and cultural questions that emerge in response to such issues among different countries and social groups. The complexity of these issues, which also arose in the process of drafting the CRC, perhaps explains why Article 1 of the CRC states that For the purposes of the present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier, thereby avoiding difficult questions about when the life of a child, and therefore their rights, begins. The CRC also presents some complex challenges about how to resolve other differences in national and cultural contexts. In the debate about Article 17 (which deals with children and means of social communication), for example, the discussion was complex because western delegates defended a formulation that guaranteed the free flow of information. According to them, this was an important part of the democratic fight against censorship and the control of information, as well as for the recognition that some means of communication were private (Hammarberg, 1999). This is not, however, a view that is necessarily shared by at Member States. It is also unclear whose is the responsibility for developing guidelines for implementation, only the nature of these guidelines and the fact that the State should follow them. It is therefore clear, once again, how the lack of precision in the Convention can be seen as an invitation to the discussion of the objectives, instead of the prescription of exact methods of implementation (Hammarberg, 1999: 25).

Organisational aspects of the monitoring of the CRC also deserve analysis and urgent debate, since the delay in the delivery of the reports of the countries to the UN Committee is another important issue. According to the UNICEF report (Progress of Nations, 1995), at the end of February 1995, 35 countries were more than two years late in delivering their reports and a further 21 were more than a year late. Ten years later, the situation is the same (GDDC, 2006). The Commission of Human Rights (Working Group on Human Rights of Children) argued during the 60th session, which took place in Geneva in 2004, that the CRC had failed once more in the task of carrying out its mandate from the UN as the major body for the securing of human rights. To the Commission, the development was little and the objectives achieved were few; in their opinion, this inadequate result is mainly due to the lack of interest demonstrated by States in the discussion of human rights in countries where their economic, political and strategic interests are at stake. This situation has led many NGOs and other observers to question the legitimacy of the UN Committee on the Rights of the Child. They have argued, for example, that the fact of being a member of the Committee does not imply that members necessarily regulate themselves by criteria such as the respect for and/or the promotion of basic human rights. Therefore, many NGOs argue that there is a need to reform operation of the UN Committee, including the establishment of new and stricter conditions for becoming a member. They warn that, in 2004, the composition of the Committee makes it difficult to believe that the real intention of the members is the promotion of human rights in the world, even more so when some of the countries which have ratified the CRC (including Sudan, Nepal, the Russian Federation, China, Sri Lanka, Zimbabwe and many others) have been accused by the NGOs of serious human rights violations. Besides questions of interpretation, the CRC also contains procedural weaknesses that are part of the explanation of the difficulties that exist in its being fully promoted and guaranteed (Toms, 2000; Freeman, 2000; Gareth, 2005). There is also a permanent tension between the 10 members of the Committee on the Rights of the Child about the number of meetings of the committee, which occur only twice a year, since frequently only three to five reports are analysed, thus causing further delays in the analysis of reports that have been submitted. Because of this, it has been suggested that the number of members be raised to 18, a proposal re-stated by the Commission of the United Nations for Human Rights (Resolution 1998/76 of 22nd April). However, up to date, no action has been taken on this important issue. In addition, the suggestions and recommendations made by the Committee are not legally binding and depend only on the responsiveness of Member States and on international pressure, the mobilisation of shame (Santos, 2001: 9). Thus Freeman (2000) argues that for the full realisation of international

childrens rights, the CRC will have to be more intensively supervised; that the Committee on the Rights of the Child will have to have more powers; and the reports produced by each country are an inadequate and very weak device for securing the implementation of the CRC. As a consequence, other measures of regulation and control need to be considered. Despite the symbolic importance of the Convention, therefore, we should not forget the historical context in which it exists, which inhibits the promotion and realisation of the rights of the child that of a high consensus about the principles but of low intensity in terms of enforcement. Whilst it may be the most ratified international convention, ignorance about the CRC among the citizens of many countries (often because of a failure of governments to fulfil their obligation under Article 42 to promote awareness of the provisions of the Convention) is often regarded as an obstacle to its implementation and part of the reason the lack of priority given to its application. We therefore need to review critically the CRC because, after decades when very little has been achieved, it is legitimate to ask if expectations will ever be fulfilled. In other words, it is necessary to be clear about whether the CRC and all the other conventions and protocols, both regional and universal, which give voice to the concern for the well-being of children and young people and for their rights of citizenship will ever be effectively implemented or whether, on the contrary, they will continue to be ignored or marginalised. It is arguable that the status of childrens rights worldwide is increasingly fragile, in spite of the fact that when issues such as inclusion, the improvement of living conditions, and the promotion of participation, among others, are discussed, it is most often in relation to children. This fragility is particularly evident when the participation of children is considered, since adult social practices in relation to Article 12 are often profoundly distorted in their nature because participation is often confused, intentionally or otherwise, with consultation and occasional events with the appearance of participation, practices that are devoid of any political value and often empty of significance. Such social practices are described by Luhmann as false emancipation, an illusion created by the apparent removal of the distinction between superiors and subordinates, removing in this way the base of power from the subordinate (Luhmann, 1985: 89), a kind of advertising slogan which gives individuals the illusion that they are participating, when in fact the results of the exercise are null and void. Critical Reflections


Childhoods worldwide are rife with problems, tensions and incapacities that call for our reflection and intervention. The changes caused by neo-liberal globalisation have emphasised some of the problems of the children of the world such as hunger, sickness and social exclusion. We are also witnessing an apparent inability to guarantee childrens rights, in spite of the project embodied in the CRC to create a global system of shared values associated with childhood. This is a matter of grave concern since the CRC was the first binding international instrument in which States obligations towards children were articulated and which has established an almost complete global consensus in relation to the basic rights of children. Its centrality in the debate about childrens rights is evident and the growth of interest in children has increased because of it. Moreover, we cannot separate the question of the CRC from the complex framework of the development of modern citizenship, particularly in the emergence of the concept of the global or cosmopolitan citizen, an aspect that is intimately related to the promotion and defence of childrens rights. The Convention has emerged in an historical context in which there is space and time of the expansion of childrens rights, especially during a period of internationalisation of human rights more generally, in spite of the slow and tumultuous process of its preparation. The CRC is thus a landmark in the history of childhood; it embodies a symbolic rearrangement of childrens place and positions the child both as an object for protection and, at the same time, a subject of rights, marking an important change of legal paradigm - from object of rights to that of subject of law. It is this consideration of the child as the subject of law that has contributed so much to the change in the ways of thinking about children, which is reflected in changes in national laws and international instruments, a process that is still under way. The CRC is therefore a legal milestone of the utmost importance for the signatory countries which, on ratifying it, accepted the inevitable obligations to adopt the legal principles and framework of the Convention in their countries. The CRC is also a highly significant symbol of the process of an awakening of a more global consciousness about childhood and about the way in which children are viewed and understood. All in all, therefore, the cause of the human rights of children internationally has gained new and more secure footing. This new, complex and revolutionary status has triggered major changes in the images and conceptions of, and discourses about, childhood and children and has also led to changes in the legal frameworks surrounding and supporting childhood in the majority of countries that reflect the spirit of the CRC. In particular, it is worth noting that the greatest innovation of the CRC lies in its understanding of children as subjects of law, a condition which emerges fundamentally out of the

recognition of their civil and political rights creating challenges which imply the need for deep social and cultural changes in many societies, with new social and legal conceptualisations, and the need for short, medium and long-term appraisal of the impact of such changes. In spite of this, it is now essential to review critically the progress that has been made in implementing the CRC, to recognise its weaknesses, and to consider how to maximise its impact with a view to improving children's lives and effectively promoting their rights.

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