International legal procedures and children’s conceptual autonomy

(1)

Article

Reference

International legal procedures and children's conceptual autonomy

HANSON, Karl

HANSON, Karl. International legal procedures and children's conceptual autonomy. Childhood , 2015, vol. 22, no. 4, p. 427-431

DOI : 10.1177/0907568215609209

Available at:

http://archive-ouverte.unige.ch/unige:149859

Disclaimer: layout of this document may differ from the published version.

1 / 1

(2)

Childhood 2015, Vol. 22(4) 427 –431

sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0907568215609209 chd.sagepub.com

International legal procedures and children’s conceptual

autonomy

A major contribution of the interdisciplinary field of childhood studies to social sciences has been to highlight the importance of children’s agency and the corresponding neces- sity to involve children in research. Several contributions in this issue illustrate the wealth of data gathered via qualitative methods, such as ethnographic fieldwork and in- depth interviews that disclose children’s experiences of their everyday world. Childhood studies’ research adheres to the field’s underlying view which considers children as autonomous beings who are capable of making productive contributions towards increas- ing our understanding not only of their own lifeworlds but also of society as a whole. At the centre of this undertaking lies the view that children and childhood need to be studied as subjects in their own right (Leonard, 2015). The idea that children are subjects of rights has recently been underscored by the third Optional Protocol to the Convention on the Rights of the Child (CRC) on a communications procedure, which entered into force on 14 April 2014 (United Nations, 2011). The third Protocol brings to mind the difficul- ties childhood researchers are faced with when considering the child as an autonomous human being. In particular, the efforts childhood researchers have deployed can inform discussions over the representation of children and over the agenda setting. The establishment of this new international legal procedure is finally also reminiscent of the importance of recognizing children’s conceptual autonomy.

Under the third Protocol to the CRC, which preamble reaffirms the status of the child

‘as a subject of rights and as a human being with dignity and with evolving capacities’, children claiming to be victims of a rights violation can submit a communication to the UN Committee on the Rights of the Child. In case national complaints mechanisms are ineffective or non-existent, children themselves are entitled to submit a complaint. Such complaints, which are phrased in the official text as ‘communications’, may be submitted by or on behalf of an individual or group of individuals claiming to be victims of a violation by that State party of any of the rights set forth in the CRC, the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography or the Optional Protocol to the Convention on the involvement of children in armed conflict.

Besides granting children who have been victims of a rights violation access to an international procedure, the drafters of this third Protocol are expecting that it will reinforce and complement national and regional mechanisms allowing children to submit complaints for violations of their rights. In a news release issued the day after the adoption of the third Protocol by the UN General Assembly, the UN High Commissioner for Human Rights, Navi Pillay, stated that as a consequence of this protocol, ‘Children will now be able to join the ranks of other rights-holders who are empowered to bring their complaints about human rights violations before an international body’ (Office of the High Commissioner for Human Rights [OHCHR], 2011). Many advocates in the field of Editorial

(3)

428 Childhood 22(4) children’s rights consider the establishment of a procedure allowing children to submit a complaint about the violation of their rights to a UN body to be a significant breakthrough for the recognition of children as rights holders and autonomous human beings.

This third Protocol to the CRC has now been ratified by 17 States Parties (including, as of 17 August 2015, Albania, Andorra, Argentina, Belgium, Bolivia, Costa Rica, El Salvador, Gabon, Germany, Ireland, Monaco, Montenegro, Portugal, Slovakia, Spain, Thailand and Uruguay). Following ongoing awareness raising and lobbying by an international network of national, regional and international non-governmental organizations and networks, human rights institutions and other non-governmental bodies from across the world, who joined together in the international coalition ‘Ratify OP3CRC’ (http://

ratifyop3crc.org/), it can be expected that cases will soon be submitted and handled by the Committee on the Rights of the Child dealing with the violation by State Parties of individual children’s rights. However, it is also to be expected that most complaints will be submitted before the Committee by adults acting on children’s behalf, rather than by autonomous children making unmediated use of their reaffirmed subjective rights.

The prospect that children will only in exceptional cases introduce a complaint before the Committee on the Rights of the Child is based on experiences with existing national complaints mechanisms and has also to do with the complexities of the new international procedure. Under procedures that have been put into place at the national level to deal with complaints on the violation of children’s rights, a large majority of cases have been submitted by adults acting on children’s behalf. For example, individual communications about a children’s rights violation or requests for information received by the Delegate-General (Commissioner) for Children’s Rights of the French Community of Belgium were initiated by children in only 6% of cases (Délégué général de la Communauté française aux droits de l’enfant, 2014: 17). Likewise, among the persons who in 2013 contacted the Irish Ombudsperson for Children, only 3% were children themselves (Ombudsman for Children, 2014: 19). The majority of cases had been intro- duced in both instances by parents, followed by professionals and extended family mem- bers. The communications procedure established by the third Protocol to the CRC will be treated by a UN body seated in Geneva, at a much greater geographical distance from most of the localities where children’s rights violations occur compared to national capi- tals or regions where ombudspersons hold office. For many children, the United Nations and the Committee on the Rights of the Child are at best little more than abstract con- cepts; it is unresolved how all potential victims of child rights violations across the globe can be made aware of the existence and functioning of an international body where they can directly pursue remedies for violations of their rights. Moreover, Article 7 of the third Protocol enumerates several formal criteria that need to be met in order for a communication to be considered admissible. Admissibility criteria include that communications must not be anonymous and have to be submitted in writing, all available national remedies must have been exhausted, the communication should not be manifestly ill- founded nor insufficiently substantiated, the violation needs to have been committed by a State which has ratified the third Protocol and must have occurred after ratification and the communication needs to be submitted within 1 year after the exhaustion of domestic remedies. The sum of these hurdles makes it particularly unlikely that under the newly established procedure, the Committee on the Rights of the Child will be receiving a high percentage of communications directly from children.

(4)

Adult children’s rights defenders who introduce complaints on behalf of children before national or international judicial or quasi-judicial bodies have reflected upon how to best represent children’s views. The third Optional Protocol to the CRC on a communications procedure contains particular provisions that deal with the representation of children. In fulfilling its functions under the third Protocol, the Committee on the Rights of the Child is required, reiterating Article 12 of the CRC, to take into account the rights and views of the child and to give the views of the child due weight in accordance with the child’s age and maturity (Article 2). The third Protocol furthermore confers the Committee on the Rights of the Child the responsibility to guarantee this principle in its rules of procedure in order to guarantee child-sensitive procedures as well as ‘safeguards to prevent the manipulation of the child by those acting on his or her behalf’ (Article 3).

Notwithstanding ongoing discussions and reflections upon how to respect such a man- date, finding out how to best represent children’s points of view remains a challenging task.

In her examination of adult–child relations within the Peruvian movement of working children, an organization entirely based on the principle of child participation, Jessica Taft (this issue) shows how adults and children, despite good intentions and a deep commitment to children’s agency and authority, continue to replicate deeply structured patterns of behav- iour that give adults greater power. It is indeed adults, rather than autonomous children, who take the lead in disclosing the realities and problems with which children are confronted. As such this need not be considered problematic, as it merely reflects existing power relations between adults and children. It is a reality with which this journal, which values contributions that disclose children’s experiences relying on what is now frequently phrased participatory research, is also confronted. Despite our commitment to the autonomy of children, we hardly ever receive manuscripts submitted by children, confirming an observation already made in 1975 by Boocock that ‘virtually all studies of children have been done by adults’ (cited in Thorne, 1987: 102). However, during the last three decades, we have witnessed an extraordinary proliferation of participatory approaches in childhood research, exemplified by the publication of several research handbooks on participatory research with children, as well as by the advancement of our deliberations on the ethics involved in doing research with children. Continuous reflections of the processes by which children’s ideas are mediated and represented by adult researchers have contributed to achieve insights in how to include children’s views in our knowledge. The experiences of childhood researchers remind us that the roles of those ‘speaking on behalf of others’ and the methods used to reliably represent the opinions of children, be it in research or before a judicial body, require persistent critical scrutiny and empirical investigation.

A supplementary point, besides the need to continuously probe how children’s views are represented by adults, concerns questions related to agenda setting. Not children or groups of children, despite their recognition as subjects of rights, but children’s advocacy groups run by adults have been successful in lobbying the coming about of the third Protocol to the CRC. The campaign for establishing an Optional Protocol to the CRC on a communications procedure was initiated and supported by large NGO’s working in the field of children’s rights, such as Plan International, Save the Children and World Vision (NGO Group for the CRC, 2012). For these organizations, the third Protocol is an extremely useful instrument which forms part of their strategic litigation activities.

Strategic litigation consists of bringing carefully selected individual cases to a national or international judicial or quasi-judicial body in order to bring about broader changes in

(5)

430 Childhood 22(4) society (Geary, 2009). This strategy generally forms part of broader advocacy campaigns to put certain children’s rights on the agenda in order to promote particular rights of children or the rights of particular groups of children. Strategic litigation is therefore as much concerned with its broader effects as with finding a solution for the individual children’s rights cases brought before a court (Geary, 2009). The principal added value of the third Protocol establishing a communication procedure should therefore be understood not as to increase individual children’s autonomy on international fora, but as providing those acting on children’s behalf with an additional advocacy instrument to raise specific concerns on the international agenda. More often than not, individual children will be the passengers and not the pilots of these procedures. Referring to the earlier quote by the UN High Commissioner for Human Rights Navi Pillay, those acting on behalf of children, rather than children themselves, are the ones most likely to ‘join the ranks’ of persons empowered to bring complaints about violations on children’s rights before an international body (cf. OHCHR, 2011). This also implies that the setting of the agenda for the kinds of changes that are needed to improve respect for children’s lives remain principally at the hands of those organizations that have the knowledge and the resources to influence agenda setting (Poretti et al., 2014).

Childhood researchers have been asking whether the emphasis on children’s agency would also lead to include children in the definition of research questions and the setting of research agendas (Oakley, 1995). Providing plausible interpretations in analytical and abstract terms of research findings, including those which were directly informed by children, have been and are considered the role of the researcher. However, researchers have also reflected on the definitions and frameworks used by researchers in the field. Barrie Thorne (1987), for instance, stated that if we want to bring children’s experiences into knowledge that has been shaped by dominant groups, it is essential to grant children ‘conceptual autonomy’ (p. 104).

In his seminal introduction to the ‘Childhood as a social phenomenon’ project, also Jens Qvortrup (1991) emphasises the importance of the conceptual autonomy of children:

In a world dominated by adult interests and with adults having the power of definition, children are supposed to become autonomous, not to be autonomous. However, this does not imply that children cannot or should not be accounted for in their own right. On the contrary, it is a precondition for knowing about children’s own life situation, that they become liberated from adult-centred categorizations and be given conceptual autonomy. (p. 17)

To make the vast amount of empirical data gathered from children even more relevant, we need to further unpack the implications of what is understood by the notion of ‘children’s conceptual autonomy’. One way is to question the ways how adults make use of their power of definition and searching for ways to including children’s views in these definitions. This can be achieved not by turning children into researchers, but by continuously questioning our interpretations of children’s ideas as well as of the analytical frameworks and conceptual tools that inform power struggles over definition.

The adoption and entry into force of the third Protocol to the CRC has filled a gap in the system of international human rights protection, as the CRC had been until then the single core UN Human Rights Treaty which did not incorporate an individual communications or complaints procedure. The third Protocol enables the submission to an international body of complaints about particular children’s rights violations and also enlarges the advocacy tools

(6)

of organizations that make claims on behalf of children. I have argued that the impact on practice of granting children access to an international legal procedure on their autonomy may be very limited, as the mere availability of such a procedure cannot extract children from ingrained and persistent power relations between them and adults. However, the third Protocol does signal a conceptual advancement in the recognition of children’s subjective rights. Both at the national and international levels, the question whether children have the right to exer- cise their rights autonomously and can submit complaints to courts had long been debated.

The recognition via the third Protocol of children’s right to access justice mechanisms with child-sensitive procedures explicitly identifies children as legal subjects of international law.

It can hence be seen as a small but symbolically significant marker of children’s conceptual autonomy, which is probably the third Protocol’s most important achievement.

References

Délégué général de la Communauté française aux droits de l’enfant (2014) Rapport annuel 2013–

2014. Available at: www.dgde.cfwb.be (accessed 4 September 2015).

Geary P (2009) Children’s Rights: A Guide to Strategic Litigation. London: Child Rights Information Network (CRIN). Available at: http://resourcecentre.savethechildren.se/sites/

default/files/documents/6699.pdf (accessed 04 September 2015).

Leonard M (2015) The Sociology of Children, Childhood and Generation. London: SAGE. https://

uk.sagepub.com/en-gb/eur/the-sociology-of-children-childhood-and-generation/book239598 NGO Group for the CRC (2012) Advocacy toolkit – Campaign for the ratification of the third Optional Protocol to the CRC on a communications procedure. Available at: http://ratifyop- 3crc.org (accessed 4 September 2015).

Oakley A (1995) Women and children first and last: parallels and differences between children’s and women’s studies. In: Mayall B (ed.) Children’s Childhoods: Observed and Experienced.

Sussex: Falmer Press, pp. 13–32.

Office of the High Commissioner for Human Rights (OHCHR) (2011) Children empowered to complain about rights violations under new UN protocol. Available at: http://www.ohchr.

org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11732&;LangID=E (accessed 4 September 2015).

Ombudsman for Children (2014) Annual report 2013. Available on www.oco.ie (accessed 4 September 2015).

Poretti M, Hanson K, Darbellay F, et al. (2014) The rise and fall of icons of ‘stolen childhood’

since the adoption of the UN Convention on the Rights of the Child. Childhood 21(1): 22–38.

Qvortrup J (1991) Childhood as a Social Phenomenon: An Introduction to a Series of National Reports, 2nd edn (Eurosocial Report 36/1991). Vienna: European Centre for Social Welfare Policy and Research.

Thorne B (1987) Re-envisioning women and social change: Where are the children? Gender &

Society 1(1): 85–109.

United Nations (2011) Resolution 66/138 adopted by the General Assembly on 19 December 2011 on the third Optional Protocol to the convention on the Rights of the Child on a communi- cations procedure. UN Doc. A/RES/66/138. Available at: https://treaties.un.org/doc/source/

signature/2012/a-res-66-138-english.pdf

Karl Hanson, Co-editor University of Geneva, Switzerland September, 2015