Child Rights: The Movement, International Law, and Opposition

By Clark Butler

Over twenty years after the 1989 UN General Assembly vote to open the Convention on the Rights of the Child (CRC) for signature and ratification by UN member states, the United States remains one of only two UN members not to have ratified it. The other is Somalia. Child Rights: The Movement, International Law, and Opposition explores the reasons for this resistance. It details the objections that have arisen to accepting this legally binding international instrument, which presupposes indivisible universal civil, political, economic, social, and cultural rights, and gives children special protection due to their vulnerability. The resistance ranges from isolationist attitudes toward international law and concerns over the fiscal impact of implementation, to the value attached to education in a faith tradition and fears about the academic deterioration of public education. The contributors to the book reveal the significant positive influence that the CRC has had, despite not being ratified, on subjects such as educational research, child psychology, development ethics, normative ethics, and anthropology. The book also explores the growing homeschooling trend, which is often evangelically led in the US, but which is at loggerheads with an equally growing social science-based movement of experts and ethicists pressing for greater autonomy and freedom of expression for children. Looking beyond the US, the book also addresses some of the practical obstacles that have emerged to implementing the CRC in both developed countries (for example, Canada and the United Kingdom) and in poorer nations. This book, polemical and yet balanced, helps the reader evaluate both positive and the negative implications of this influential piece of international legislation from a variety of ethical, legal, and social science perspectives.

• Language: English
• Publisher: Purdue University Press
• Release date: Jun 15, 2012
• ISBN: 9781612492049

Book preview

THE MOVEMENT AND THE UN CONVENTION

One

Children’s Rights: An Historical and Conceptual Analysis

CLARK BUTLERS

THE CHILD RIGHTS CONVENTION IN THE LIGHT OF TWO MOVEMENTS FOR THE RIGHTS OF THE CHILD

There was a time, exemplified by early Roman law, when children were considered property of the family father, who had a life-and-death power over them. This was no longer the case by the time of the French Enlightenment. Yet the enthusiastic reception given to what Jean-Jacques Rousseau (1712-1778) considered his most important work, Emile,¹ was nothing less than the discovery of preschool childhood by the reading public of Europe in the eighteenth century. This was an important and lasting discovery. Before Rousseau, children were often viewed within the upper classes as little adults, and were dressed accordingly, but not allowed the freedom to express themselves as adults. The child rights movement, which Rousseau founded, soon spread to the German speaking world, and eventually to the English speaking world, through writers such as Johann Heinrich Pestalozzi (1776-1827),² Friedrich Froebel (1782-1852),³ and Elizabeth Peabody (1804-1894)⁴—child rights activists to whom we owe kindergarten. The peculiarity of Rousseau’s child rights movement was that it proclaimed the essential goodness and innocence of preschool children. Quite legitimately, it promoted the right of such children to be children, to play and explore and not merely to be seen and not heard. Yet it also aspired to perpetuate childhood as a model of virtue for children into the school years and even into adulthood. Children were virtuous, and adults were corrupt and degenerate, unless they preserved something of the innocence of the child. Rousseau initiated a kind of children’s liberation movement. However, it was not a movement to liberate children from childhood and to enable them to exercise, even as children, adult human rights, like the right to work, as advocated in recent decades by some child liberationists.⁵ Rousseau’s aim was precisely to liberate children from the exercise of such adult human rights. His aim is reflected in article 31 of the United Nations Convention on the Rights of the Child, which declares the child’s right to leisure and to learning by play.

This Rousseauean child rights movement, however, is not the only one that has come to fruition in the UN Convention on the Rights of the Child. What is most striking about the convention, what goes beyond the 1959 UN Declaration of Children’s rights is, I suggest, the result of a very different children’s rights movement—one upheld, for example, by Georg Wilhelm Friedrich Hegel (1770-1831) in express opposition to Rousseau. This essay will defend the neohumanist concept of children’s rights more commonly associated with Wilhelm von Humboldt (1767-1835), but to which Hegel also subscribed. Hegel did not write extensively on children’s rights.⁶ Yet what he does say, developed in close association with his particular philosophy of education, points to respect for a basic right of the child to education in dialogical skills for adulthood, and not merely as an end in itself to be enjoyed by children in deliberating and deciding their own life conditions as children. This is a right that does not depend merely on our universal compassion for the millions of children who continue to suffer in this world due to insecurity and a lack of life’s necessities. Children consciously suffer from starvation. But they may not consciously suffer from violation of their basic right to nonvocational education, which their rights to security and subsistence of course serve to support. Children already appreciate that basic right to the extent that they want to be the equals of adults, but they will fully appreciate it only when they are no longer children.

That there is a basic human right may seem to contradict United Nations documents that consistently deny a hierarchy in such rights and hold all such rights to be not only interrelated but indivisible. But we avoid affirming a basic adult human right in the sense of a right which appears at the top of a hierarchy of rights. It can be argued that there is only one adult human right (freedom of expression in dialogue) which other rights serve to support. In other words, they are the same universal right under different particular descriptions. Thus, the right to freedom of expression is under one description that very right under the more particular description of a right to food, since the exercise of freedom of expression is severely restricted by starvation. But the same basic right also assumes the form of a right to vote, since governments which we freely elect are less likely to persecute us. The basic universal moral right along with all its particular forms can be justified all at once. They all promote dialogue open to all on an even playing field. Such dialogue results in true belief, and thus in successful action in the world, more than the appeal to self-evidence or dialogue before a restricted audience.

IS THERE A BASIC RIGHT OF THE CHILD?

If we are correct about the basic adult human right, there would seem to be an implied basic child’s right. Hegel rejected the notion, championed by Rousseau and Pestalozzi, that school should be a mere playground in which school-age children learn not merely by the games they play with one another but also, and more fundamentally, by solving problems directly posed by the natural environment.⁷ He rather held that school-age children learn chiefly by increasing association with adults, by participating increasingly in adult activities. Thus, the most intelligent thing children can do with their toys is to break them.⁸ He held that Rousseau’s belief in the essential virtue of children was misguided. Virtue for him was a learned habit. Children perceive themselves as failing to live up to what they ought to become as adults. Educators should focus on helping children realize their potential for adulthood. Children, once they realize the gap between themselves and adults, take the standpoint of their educators and likewise view adulthood as their essential unrealized potential. Achievement of this goal is the central purpose of school education. And if this is the central purpose of K-12 education, it is all the more so the purpose of university education. University educators err if they view entering freshmen and women, during the last stage of childhood, as their kids and allow the act of taking their standpoint to gain the upper hand over the expectation that the students should take the standpoint of their educator. The fact that this happens less often in American universities today education reflects a failure of education from the first grade on.

According to Hegel’s hard saying, the natural impulsiveness of school children must first be broken and discipline imposed.⁹ Obedience must be imposed not merely because it is a potential threat to others and to themselves as children, but even more importantly because it is a threat to their own future as adults. It is a mistake for educators to merely encourage play beyond the earliest childhood. However much video games give training in adroit motor skills, they do not induct children into the adult discussion of issues affecting them.

Commentators on the UN Convention commonly divide children’s rights into the so-called three Ps: protection, provision, and participation. Infants and young children, due to their vulnerability, need to be protected and provided for. Their claim to protection and provision, since it is socially validated by a wellnigh universal consensus, establishes specific children’s rights from birth onward in customary international law. Participation rights, increasing participation by children in adult deliberations, gradually come to be exercised by children only in the course of growing up. Participation rights progressively allow children to engage in dialogue about decisions affecting them. They enable children to offer their opinions, if not always to decide. They give them a right to be informed of alternatives between which to choose and of known indirect consequences of their choices insofar as they are able to understand them. The child flees childhood by discontent with his or her childlike state.¹⁰

Participatory rights are declared in articles 12-17 of the convention as rights to freedom of thought, expression, communication, and access to information on all questions affecting the child. Such rights distinguish the convention from the 1959 United Nations Declaration of the Rights of the Child, which is restricted to protection and provision rights. If the convention is interpreted as setting a moral standard, the child’s rights to protection and provision reappear as supports to the basic right of children to participation. The child exercises the dialogical right to participation only by way of exercising rights to freedom from fear and freedom from want.

Children are not yet adults. The list of children’s rights in the convention omits certain adult human rights listed in the Universal Declaration of Human Rights. Children do not have the same right to marry, to vote, to work, or to move freely within and outside the borders of their country—all adult human rights according to the Universal Declaration. But the child rights movement does not define children’s rights merely negatively as not being adult rights. Participatory child rights are conceived positively as rights in support of the adults children will become. Assuming freedom of expression as the basic adult human right,¹¹ the basic children’s right is a right to a kind of nonvocational education already including some scope for freedom of expression, an education that will enable him or her to one day fully exercise the right to freedom of expression. There could be no closer relation between the basic adult human right and the basic right of the child.

A place for play, we noted, needs to be preserved alongside the academy even if school is more than a playground. But children should not be left to believe that everything must be fun and games. Child education should be adult centered and child centered. In part, we grant participatory rights to children because we can learn from them. But children have a right to participation, in part, because the perpetuation of adult cosmopolitan inquiry requires ever new generations of adult dialogue partners.

A child cannot be educated merely through exposure to a diversity of sensory experiences, study tours, or field trips exploring different regions of the natural or increasingly cultural environment. Education should include memorization of words the child does not yet fully understand, encouraging the respect for what only adults understand.¹² Children have a publicly protected right to skills empowering participation in dialogue even against the will of their parents, and even against the will of the child. Children have a duty to develop skills making participation in dialogue a real option, although they have no duty to take that option on any given issue. No duty exists to dialogue under duress; the credibility of dialogue depends on its voluntary character.

Given this concept of the basic right of the child, which ethically the children’s rights movement should support, I want to address six questions about the movement’s use of the convention: Can child rights declared to exist in the convention really exist? If they do exist, how are they inalienable, as the convention claims in its preamble? Assuming that the right to education in dialogical skills is the principal right of the child, what form should that education take? Is homeschooling compatible with the convention, and, if so, what kind? Could the United States ratify the convention consistently with the US Constitution? How can the convention be used by the child rights movement in the developing or non-Western world?

DO CHILDREN’S RIGHTS ACTUALLY EXIST?

Since the entire UN human rights regime is committed only to the promotion of human rights, the convention does not oblige us to assume that the human rights of the child which it cites actually exist.¹³ The convention itself invokes the norm of acting in the best interests of the child.¹⁴ But acting in the best interests of the child may mean paternalistically deciding in the place of the child for his or her own welfare without any assumption that the child has any rights. Interests may be translated as benefits or advantages. An individual who acts to preserve his or her health acts in the best interest of his or her cells, that is, to their advantage. Healthy cells benefit by not being attacked by cancerous cells, but since cells are not persons they have no rights.

Whether or not universal children’s rights exist, it is clear that children have some rights. Rights are, minimally, socially validated claims within some group, and children stake out tacit claims. A baby does in screaming for the attention of his or her parents when in need. Babies acquire genuine social rights to the extent that their parents recognize the validity of such claims and respect them to the extent of their ability. Parents normally respect the infant’s right to successfully pursue satisfaction of natural propensities like the food drive. The baby has an inalienable natural propensity to pursue nutrition, though without a natural right to succeed in this pursuit enforced by any natural law.¹⁵ At least within the family he or she lays down a claim to food and normally has a socially validated right to succeed in this pursuit. The baby itself lays claim to this right as soon as it enters into two-way communication with a parent, so it is not a right exercised by others merely on the child’s behalf.

A universal right of all children to education in dialogical skills might seem to be a so-called putative right of infant children, a right imputed to them by adults, since it is a right to which they do not yet lay claim. Yet such a right is not a putative right in the usual legal sense. Your right to the security of your house is putative in the usual sense because your neighbor, in protecting your house from burglary during your absence, acts as you would act if you knew the clear and present danger which he or she knows. Yet no matter how much we warn young children of the threat to their future due to deficient education, some may not appreciate the warning or act on the threat upon being informed. Instead of saying such children have a putative right, we might say they have a prospective past-tense adult human right to have received an education in dialogical skills as a child. Grown human beings have a past-tense adult human right to have received as education in dialogical skills as a child. As an adult, one can discover that his or her parents or schools have violated this right. The right to have received an education in dialogical skills is, like the right to food, an important form of the basic adult human right to an equal opportunity for freedom of expression. Parents and schools need to act on behalf of the adults whom children will become. Yet this is not to deny that children also have a present-tense human right to freedom of expression on matters that they perceive to be of concern. We only say that they have a prospective past-tense right to have received an education in dialogical skills even if, as children, they do not actually perceive such education to be a matter of concern to them.

I suggest that the actual existence of children’s rights must meet four conditions. Universal children rights will exist only when they are claimed by virtually all children either directly, by others on their behalf, or by the adults whom children become; when the claim is recognized by a general human consensus to be valid; when the claim insofar as possible is customarily respected; and when a violation of children’s rights in exception to that general consensus threatens negative consequences for the violator. Universal children’s rights will exist only when violations set in motion procedures aiming, insofar as possible, at effective punishment and enforcement. Whether or not children’s rights exist is thus an empirical question. If, in any nation or region of the world, children’s rights declared in the convention are violated while the violators face no consequences, universal children’s rights do not really exist. They are then moral ideals or at most obligations insofar as steps exist to realize them. Yet, even without the real existence of children’s rights, there remains a children’s rights movement supported in part by the monitoring provided by the convention. Because the convention is not well enforced, it has not crowned the child rights movement with success; nevertheless, the convention represents the continuation of the movement under another form, guided by internationally ratified and monitored ethical norms.

Child rights, like adult human rights, insofar as they are also economic rights, may exist by virtue of seriously attempted enforcement, even if it is not fully effective. But a mere half-hearted effort at enforcement does not prove the existence of those civil or due process rights of the child which, not needing any financing, solely depend on an act of good will by individuals, or by the states to which we individuals delegate some responsibility for enforcement. For example, the child’s right not to be subjected to humiliating or degrading punishment (article 37) can be enforced merely by a voluntary decision to refrain from such punishment. But the child’s right to an education in participatory dialogical skills is, in part, an economic right which the nations of the world are obliged to respect not only progressively but also conscientiously, according to their resources and according to their careful judgment as to which child rights claims are most pressing.

By Thomas Hobbes’s (1588-1679) legal positivist criterion for verifying law, if one breaks the law without a well-grounded fear of consequences, it is not really the law. Merely intended enforcement leaves us with merely intended law. Hobbes’s legal positivist legal theory is valid only for law in a strong domestic sense. International human rights law, including child rights law, is law only in a weaker sense—however legally binding it is from a purely international law perspective sometimes out of touch with conditions around the world on the ground. Thus, the child’s weaker but universal right to an education can exist simply by the worldwide enforcement of one doable step after another toward full observance of the right—qualified only by the obligation to finance the most pressing child rights claim at the time, which might be the right to food and hence to life itself rather than the right to education.

Many children learn that they have participation rights (such as the right to nonvocational education) as well as protection and provision rights locally if not universally. The usual way learn this is not by being taught the Convention on the Rights of the Child, but by working through life situations with the consistent help of others. Children who in their home life achieve security, sustenance, and inclusion in dialogues of concern to them may be stricken with fear, deprivation, and exclusion when they venture out alone among strangers. They begin to learn that they have universal children’s rights by gradually finding that strangers consistently protect them, like other children, from deprivation, danger, and exclusion from discussion of matters of concern to them. As long as these rights are violated anywhere with impunity, universal children’s rights do not yet fully exist.

Children’s rights, like all human rights, are said to be inalienable by the convention (preamble). But, if they were truly inalienable, they would not need to be protected. A rational interpretation of the text can only mean that they are inalienable from children in a morally ideal situation. What we today call children’s rights have been alienated from countless children throughout history, and this alienation continues despite the convention. Yet the convention reflects a revolution of rising moral expectations. When the convention is held in mind, there is greater awareness that violations have occurred.

ADULT-CENTERED CHILD EDUCATION

Children begin to view themselves as aspiring adults as soon as they try to enter serious discussions with parents, teachers, or other adults. They aspire to acquire adult dialogical skills after they have made such an attempt, only to discover that they have participated in discussion at a disadvantage, due to the superior skills and background information of their adult discussion partners. In the worst cases, when they fail to express themselves effectively, their questions are dismissed as lacking in seriousness. Adults may help empower the budding adult in the child by carefully listening to questions without implying that the answer is obvious, that is, not worth asking. Children feel disrespect when adults respond in a condescending manner.¹⁶

If the right to freedom of thought and expression for children takes the form of a right to education in dialogical skills for adulthood, to what kind of education does a child have a right? Two simple models exist for education. Either children may receive instruction dispensed from the standpoint of schoolmasters and parents as authoritative external dispensers of truth. Or the teacher ceases to posture as the high priest of truth, as the sighted one leading the blind, in favor of dialogical facilitator.¹⁷ The facilitator takes the child’s standpoint non-condescendingly and, through dialogue, accompanies him or her down a path to reflection on issues of perceived concern to the child.

Critical educators, like Paulo Freire (1921-1997), fear that the schoolmaster’s approach of inculcating obedience to commanding authority may create in children a desire to simply dish out, upon attaining adulthood, what they have received as children. The strict discipline to which school children are subjected even today in a country like France tends to brand a good part of the population for life. Teachers receive obedience in the classroom, but adult citizens outside the teaching profession play with less success the role of the schoolmaster, with regular cutting criticisms of one another as well as those under their supervision. If we wish to create a population of citizens with a large store of knowledge, but who can also work together cooperatively rather than with a largely competitive mindset of mutual fault-finding, we should begin education from elementary school based neither on mere lecturing nor on leaderless discussion, but on lecturing placed in a clear dialogical context.

Inducting children into the mere appearance of dialogue is not enough. Even the devil can draw children into a semblance of dialogue that really amounts to manipulation. We must refrain from engaging them in phony dialogue.¹⁸ Children are smart enough to know when dialogue is not sincere. Dialogue in which one does not put oneself at risk as an educator, but in which one knows beforehand the conclusion of the dialogue, is not authentic. It is authentic only when educators perceive themselves as capable of learning from children and students as well as of teaching them. When teachers cannot suspend the presumption of superior knowledge, they should not pretend to dialogue.

Dialogue about the multiplication tables may not be appropriate. The child should simply memorize them on authority. Yet if rote memorization is not to be irksome and off-putting, the child needs to perceive it as directly connected with his or her own aims in life. A negative aim can be to escape inferiority, while a positive aim can be the desire to grow up. The young Mozart cannot create music without first learning the scales. Yet the child’s right to liberating education is a right to accept only a necessary minimum of obedience training. Hegel held that educators must break the impulsive will of young children who do not yet see where their higher interest lies by forcing obedience to rote memorization in reading, writing, and arithmetic.¹⁹ Freire adds that the child will harness him- or herself to the discipline of a definite task, such as literacy, more willingly when the task is seen as a means to liberation from oppression,²⁰ that is, to equality with adults.

Dialogue with young children allows the educator to be educated by the child about his or her perceptions, fears, and anxieties. Freire was influenced by Hegel’s dialectic of lordship and bondage in his ideal dialogical education as emancipatory.²¹ Yet Hegel retained a role for the banking model of education which Freire criticizes.²² Banking remains primarily important in that children and students become frustrated with aimless classroom discussion that leaves them with nothing to take to the bank.

The oppression to which Freire objects is not oppression by parents or educators as such. It is social oppression. The authority of parents may channel sexism, racism, ethnocentrism, or Western chauvinism. Hegel himself communicated oppressive social structures to his illegitimate son Ludwig in suggesting that he was not destined for the liberal professions.²³ He also conveyed the oppression of women in his attitude towards his wife, and towards girls for whom he did not think that academic secondary or university education was appropriate.²⁴ He opposed despotism in general, but, illogically, not always despotism in particular.

In dialogue educators and children alternately pose questions and reply. Questioning eliminates the schoolmaster’s authoritative position as a source of enlightenment beyond appeal. If the adult respondent fails to be convincing, the child questioner begins to assume dialogical leadership with a responsibility to respond to further questions. Overall equality in dialogue does not mean equality between dialogue partners at any given time, but implies an alternation between temporary self-subordination to the other’s dialogical leadership and one’s own temporary responsibility for such leadership. Temporary self-subjection to apparent passive listening to lectures becomes active participatory listening when placed in the larger dialogical context. The lecturer is open to questioning, and to being the recipient of another’s lectures. One pursues truth by alternately speaking in awaiting a time to listen and listening while awaiting a time to speak.

Leaderless dialogue is the initial form assumed by dialogue. It paves the road to dialogical leadership when the group identifies someone as a messenger. Whereas leadership not acclaimed by the group is authoritarian, democratic leadership justifies itself by the lure of special knowledge that the children begin to feel will come from someone. This lure may be based on the intrinsic interest of some special knowledge, or the interest may be extrinsic and the lure diminished, based on the child’s realization that reading, writing, and arithmetic are obligatory if he or she is someday to assume dialogical leadership on some issue.

The onset of the lure for special knowledge begins the transformation of pupils into students. Pupils do not at first recognize the division of knowledge into areas of specialized knowledge. The messenger holds a finally dispensable authority over the group. Once students assimilate the message, the messenger is dispatched as the child acquires the ability to verify its truth. For a child, no lure of special knowledge for children should become an exclusive passion. (Doctoral students are different.) The forms of specialized knowledge, reflecting the various environments in which teachers know an adult human being will need to operate, are different but related. The world of knowledge is like a chest of drawers, and the student must know how to pull out one drawer, study its contents, and put it back. Beginning in middle school, and then in high school, the zone of free student inquiry gradually expands to new forms of specialized knowledge, and by the time students reach a university-level education the protective authority of the teacher, preventing pupils from pursuing specialized knowledge for which they are unprepared, is virtually eliminated.

HUMAN RIGHTS EDUCATION

Unlike primary school children, middle school and especially high school students become ready to study the adult Universal Declaration with its emphasis placed on freedom of expression, the freedom of belief which already has a place of privilege in the preamble, as in Franklin Delano Roosevelt’s 1941 Four Freedoms Speech. If high school students do not yet exercise all the adult human rights declared in support of that basic right, they foresee that they may soon be able to do so. The discouraging Not yet! with which parental or school human rights educators, as Katherine Covell and Brian Howe see,²⁵ would have to confront young children becomes a more encouraging Not quite yet.

We may distinguish pre-adolescent, adolescent, and adult human rights education. Basic human rights education, as contrasted to applied human rights education for adults, is remedial if only introduced in adulthood. We must assure early education for the child in his or her child rights as a precursor to the optimal exercise of adult human rights. More than any other special human rights convention, the Convention on the Rights of the Child is an essential complement to the UN universal covenants on human rights.²⁶ We were all children, and the child is the parent of the adult.

The induction of a child into dialogue requires dialogical role models. Initiating dialogue with children on matters of concern to them fosters in them a new self-identity as dialogue partners consciously empowered with the basic participatory right of freedom of expression. Such induction is possible for children who have never studied human rights law. The Universal Declaration of Human Rights should not be taught to children who cannot exercise several of them, and who do not yet understand their importance to their future adult lives. The failure to recognize this is a problem with the United Nations’ own attempt to teach human rights to children by providing a plain language version of the Universal Declaration for use in primary and secondary schools.²⁷ Nor should children’s rights be taught to children by didactically teaching the Convention on the Rights of the Child. Teachers inspired by the convention usually teach best by example.

Children’s rights are limited by the fact that children are not able to assess the fuller implications of their choices. Since a young child does not always realize the implications of a choice not to attend school, being dialogical about such a matter may not be appropriate. Compulsory school attendance obliges the child to respect the right of the adult, whom he or she will become, to have had an education as a child; however, the year in which one reaches adulthood is indefinite. Adults