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Family Matters No. 27 - November 1990

Saving the world's children?

Children's rights and the United Nations Convention
Margaret Harrison

Abstract

In August 1990 Australia signed the UN Convention on the Rights of the Child. This article documents the history, objectives and principles of the Convention and assesses its value to the welfare of children everywhere. The author asserts that the protection of children is a global issue; children are being exploited, harmed and neglected in undeveloped, developing and developed countries. The implementation, monitoring and enforcement of the Convention is discussed within an Australian context. The difficulty of drafting a Convention which accommodates the many differences of the eventual ratifying states without producing a document which is so bland that its impact would be miniscule is discussed.

In August, Australia joined the ever increasing number of countries which have signed the United Nations Convention on the Rights of the Child. Margaret Harrison, AIFS Fellow, documents the history, objectives and principles of the document, and assesses its value to the welfare of children everywhere.

The topic of children's rights is a controversial one. While espousing the need to protect children, emphasising their vulnerability and identifying their importance as future adults, many individuals, organisations and nations either flout basic principles or baulk at the conversion of rhetoric into action.

In Australia, children's welfare and rights have been politicised at all levels of government, and issues such as homeless youth, child support and adoption practices are but several of many which attract almost daily media cover. As important as these are, it takes something like the publicity surrounding the United Nations Convention on the Rights of the Child to prise attention away from domestic concerns to those which affect millions of the world's children.

Australia's August signing of the Convention removes the need to lobby for or against the adoption of its provisions. The signing was preceded by consultations between the Commonwealth and the States and Territories, and is an 'in principle' commitment by the Federal Government to the contents of the Convention. It will be followed by formal ratification, which will give the obligations contained in the Convention binding force. The Australian Constitution restricts Commonwealth legislation to specific heads of power which do not include matters involving children, other than in relation to matrimonial causes such as custody and access. Once the Convention is ratified, the external affairs power would need to be relied on to ensure that legislation otherwise beyond Commonwealth power (but within the province of the States) is valid.

Despite Australia's support, compliance and monitoring will be ongoing concerns, and there will be constant debates on the extent to which existing or new legislation reflects the relevant articles. Furthermore, as ratification is imminent, it is obviously important to understand the wording of the articles, and to keep in mind the major reasons for the moves to implement the Convention. As the process of international law is accompanied by technical language, it is also important to explain the terminology, the status of the Convention, and its mechanisms. At a more questioning level, its real benefits to the world's - and Australia's - children, need to be discussed.

Protection of Children is a Global Issue

Much of the history, rationale and content of the document is explained in In the Child's Best Interest: A Primer on the UN Convention, written by Kay Castelle and published jointly in the United States by Foster Parents Plan International and Defence for Children. This unashamedly subjective small book is an example of the lobbying process which is part and parcel of many United Nations' activities, and is required to build up momentum for the carriage (or failure) of proposals at the international level. The book manages to convey several messages in a manner to which adults, but more particularly children, would respond.

Its first message is a major rationale for the primer's production; the need to recognise that the protection of children is a global issue, with public awareness extending beyond national boundaries. Evatt (1989) also makes this point, citing the support of UNICEF for the Convention as being predicated on its providing 'a step towards ensuring the survival as well as the protection and development of millions of children now leading short lives in poverty and deprivation.'

In addition, as the foreward to the primer explains, there is no justification for complacency, as currently 'no country protects the rights of all its children or provides them with an adequate standard of health care, education, day care, housing and nutrition, or properly protects them from abuse, neglect and exploitation'.

The United States is not exempt from critical treatment, with 13 million American children currently living in poverty, and an estimated 500,000 going to bed hungry. In the context of juvenile justice, it is only two years since the United States Supreme Court found the sentencing to death of 15 year-olds to be unconstitutional, a ban which still does not extend to 16 and 17 year-olds. The Burdekin report on homeless youth (1989) and studies on Aboriginal health and wellbeing are powerful reminders that Australia also has an erratic track record in the provision of services and support for particularly vulnerable groups of children. It is obvious that children are currently being exploited, harmed and neglected in undeveloped, developing and developed countries.

The primer provides a global picture of the many uses and abuses to which the children of the world are subjected, and argues that further political commitment is needed to prevent flagrant abuses and to have children's welfare seen as an international justice issue rather than a charitable one. With drawings contributed by children from a number of countries, it illustrates rights such as those to education, health services, and an adequate standard of living and to protection from abuse and exploitation.

The stark contrasts between optimal rights and the reality of many children's lives are shown with the wording of the relevant article of the Convention being juxtaposed with facts. For example, an anti-discrimination provision (Article 2) is a central article. Yet in many countries discriminatory practices are well entrenched, girls may be denied equal schooling and nutrition, governments may allocate fewer funds for services in areas populated by minorities, and children who object to being denied equal access to school, health care and employment may be targeted for torture and death. The illustration to Article 2, provided by Mokgethi from South Africa, shows a policeman complete with helmet, truncheon and dog chasing two boys.

Much of the great enthusiasm and hard work that has accompanied the drafting of the Convention is undoubtedly due to international recognition of the dreadful situations facing many of the world's children. Their vulnerability is illustrated throughout the primer, and their physical and mental immaturity is cited as the rationale for the special rights needed to protect them and meet their unique needs. It is only too easy to be unaware of, to ignore or to forget the horrors faced by many young people. For example, children comprise 10 million of the world's refugees, more than 800,000 infants die every year of neonatal tetanus, over 100 million children are forced to work for no pay in dangerous, often slave-like, conditions, and there are 150 million malnourished children under the age of five.

Of course, documenting the plight of the world's children is only one, albeit an important, task on the road to alleviating their parlous state. Actually doing something at a practical level is a greater challenge.

The second message provided by the United Nations primer is the more 'nuts and bolts' information about the Convention - its history, details of its provisions and their translation into domestic law. These are not widely known, and are sometimes the subject of confusion, and on occasions, of misinformation.

Background to the United Nations Convention

Burdekin (1989) traces the origins of the Convention to the early decades of this century, when the impact of war and other disasters on children led to the formulation and adoption of the 1924 Geneva Convention. The emphasis then was on the provision of food, medical care and shelter. In the aftermath of yet another world war, the Universal Declaration of Human Rights was adopted by the League's successor, the United Nations, in 1948. The Universal Declaration enshrined the concepts of 'fundamental freedoms and protections to which all human beings are entitled and which are the basis of the just customs and laws common to all societies', and recognised that both motherhood and childhood were entitled to special care and assistance.

In 1959, the Declaration of the Rights of the Child was supported by a unanimous vote of the General Assembly of the United Nations, which at that time comprised 78 States. The Declaration was wider in scope than the Geneva Convention, looked at issues that had become important in the interim such as access to social security entitlements and anti-discrimination, and emphasised that childrens' rights operated during peacetime as well as war.

The Declaration contains ten principles which are based on the assertion that 'mankind owes to the child the best it has to give.' Since its adoption, it has provided a framework for child-related legislation and, for example, is included in the charter of the Human Rights and Equal Opportunity Commission. However, by its very nature, a Declaration has no more than advisory status, causing Burdekin (1989) to describe it as 'soft' law as opposed to the 'hard' law of a Convention.

The move towards the preparation of a Convention began in 1978, just months before the International Year of the Child was due to begin. At that time, Poland submitted a first draft to the United Nations. There was obviously a feeling that the principles contained in the Declaration required expansion and needed 'teeth'. There was also a concern that the disparate binding and non-binding provisions relating to children which already existed at the international level (and have increased since) should be consolidated into one instrument. The proposal was referred to a large working group of the UN Commission on Human Rights for drafting and there was an initial hope that it would be completed during the International Year of the Child. However, a considerable amount of negotiation and debate ensued over the following decade before a consensus on the wording was reached by the General Assembly in November 1989, the 30th anniversary of the Declaration of the Rights of the Child.

How Does the Convention Define the Rights of the Child?

The Convention sets out a wide range of rights including those concerning identity, health care and education, interference with family life, protection from abuse, neglect or exploitation, and entitlement to social security, freedom of expression, association and information. The primer categorises these, for easy reference, into three main headings.

  • The right to survival (via the provision of adequate food, shelter, clean water and primary health care).
  • The right to protection from abuse, neglect and exploitation, including the right to special protection during war.
  • The right to develop in a safe non-discriminatory environment, including the right to education, advanced health care and the opportunity to participate in the economic, religious and political life of the culture.

The UNICEF literature on the Convention classifies the rights into 'The Three Ps' of provision, protection and participation.

  • Provision includes the right to possess, receive or have access to certain things or services such as a name and nationality, health care, education and rest and play.
  • Protection includes the right to be shielded from harmful acts and practices such as separation from parents, commercial or sexual exploitation or physical or mental abuse.
  • Participation includes the child's right to be heard on decisions affecting his or her life, with capacities for involvement increasing with age, to reflect the child's passage towards responsible adulthood.

Burdekin (1989) categorises children's rights as being able to:

  • Reaffirm those rights which are granted to human beings irrespective of age - these include rights to a name and nationality and protection from torture;
  • Improve in the particular case of children the standards appropriate to all - this would apply to the administration of justice and employment;
  • Address issues that are entirely or mainly relevant to children because of their particular level of development - these include adoption, primary education and contact with parents.

The Convention is careful not to define exhaustively the rights of the child. Article 41 stipulates that: 'Nothing in this Convention shall affect any provisions that are more conducive to the realisation of the rights of the child and that may be contained in the law of a State Party; or international law in force for that State.'

Rights and Obligations: Parents and Children

Of course, children do not form a homogeneous group. Even excluding the wide variety of cultural and other environments of the world's young people, as developing human beings, from neonates to mature minors, their increasing capabilities and independence need to be recognised in a measured and realistic manner. In most instances the legal system plays no role in this, and families and schools have the major responsibility for guiding young people into adulthood. Where the rather blunt instrument of the law is involved at a national level, it is usually to stipulate ages at which various activities are or are not permitted, to provide particular mechanisms for dealing with juvenile justice issues, or to provide a framework in which determinations may be made in particular cases. In many contemporary Western societies, the difficult 'grey areas' relating to adolescent sexual activities are examples of the last category (Harrison 1987).

Article 1 of the Convention defines children as being below the age of 18 years 'unless, under the law applicable to the child, majority is attained earlier'. (In Australia a married minor is considered in law to be an adult.) Earlier drafts made no specific reference to the evolving capacity of children to exercise their rights as they grew older, nor of the role of parents in that exercise (Burdekin 1989). This was a controversial area, as any recognition of children's increasing capacities has implications for a decreasing role of parents in the lives of older children.

Evatt (1989) has described the differentiation between children as dependents requiring protection and as independent individuals as 'perhaps the most difficult and controversial issue in children's rights'. In the context of international rights, the difficulties are compounded by the need to take some account of diverse views of childhood and the role of the family, a difficulty which confronts every aspect of the Convention. The solution, in this and many other areas, is to provide a workable basis which offends and contradicts as few customs, practices and laws as possible.

Australia played an important role in proposing a final draft of Article 5, which specifically mentions the role of parents in guiding children to exercise the rights recognised in the Convention. States are required to respect the responsibilities, rights and duties of parents or, where applicable, the extended family or legal guardians, and to do so in a manner consistent with the evolving capacities of the child. Article 12 complements this by recognising that children should have the right to express their views, with these 'being given due weight in accordance with the age and maturity of the child'. Evatt has pointed out that the inclusion of the parental rights reference in Article 5 appears to have been arrived at as a result of compromise. By implying that the States should not interfere with parents' exercise of their rights, it ignores the question of who acts for the child if parents fail, and appears to be inconsistent with other provisions which require the State to protect children from abuse when they are within parental care.

Implementation, Monitoring and Enforcement

Ratification of the United Nations Convention by Australia will have no automatic impact on Australian law, although governments are required to respect and ensure the rights without discrimination. The Human Rights and Equal Opportunity Commission has responsibility for reviewing proposed and existing legislation, reporting to the Federal Government on action necessary to comply with United Nations commitments, and conducting and coordinating research and educational programs on human rights generally. Independently, or as a result of the Commission's recommendations, the Commonwealth may encourage the States to pass legislation implementing one or more of the Articles, or may rely on the external affairs power to do so itself.

However, as various commentators have explained (Mason 1990), the Convention is far more than a set of solutions, but represents a 'program for action' which includes publicising the provisions of the Convention to inform and raise awareness of its provisions, as well as legislating. Non-government organisations involved with children's welfare will undoubtedly use it to lobby for services, legislation and recognition of children and their interests in a variety of ways.

Implementation of measures necessary to give effect to the Convention may, in poorer countries, require large injections of money and other resources which are not immediately available. This is recognised in Article 4 which allows States to introduce measures relating to economic, social and cultural rights 'to the maximum extent of their available resources'.

The emphasis on compliance and monitoring is a reminder that rights cannot exist in a vacuum, but that their existence (particularly in a binding international treaty) gives rise to reciprocal obligations. The Convention provides for the establishment of an independent international Committee on the Rights of the Child to which party States have to report within two years of ratification, and every five years thereafter. Specialised agencies of the United Nations, particularly UNICEF, are expected to be able to attend meetings of the Committeee, which in turn reports to the United Nations General Assembly. The Committee may request additional material from States, undertake studies in certain areas and recommend particular measures. However, it cannot order any country to take any specific action.

Support and Opposition

The drafting of the Convention has been beset with difficulties, not the least of which is the need to retain more than well-meaning platitudes about children, and to allow the many differences of the eventual ratifying States to be recognised. Specificity is not possible in the face of pluralism, but there has always been a fear that the final draft would be so bland that its impact would inevitably be miniscule. What emerges is a set of minimum standards which, in the case of wealthy countries such as Australia, must not be allowed to be considered the appropriate standards. As mentioned, the final document reflects some of the tensions between the rights and duties of parents, and the role of the State is never clearly defined. However, it is very clear in its statement that the best interests of children are the primary consideration (Article 3).

Despite the diplomacy which characterises its drafting, aspects of the Convention have been unfavourably received in some quarters. For example, third world countries have criticised it for reflecting overly Western family structures, particularly in relation to adoption and guardianship issues, complaints that the rights of the unborn are unjustifiably ignored will continue, and the United Kingdom and Germany were, at least at an earlier stage, concerned that several Articles conflicted with their immigration laws (Childright 1990).

As the drafting of the Convention reached its conclusion, some highly organised local and overseas opposition to it evolved. The major fears expressed were that it would: undermine the role and rights of parents; destroy the integrity of the family with the promotion of overly permissive rights for children in areas such as freedom of expression, of association and assembly and thought, conscience and religion; and subject families to government interference and inappropriate external influences.

Additional complaints involved the Convention's failure to define 'family', beyond the reference in the preamble to it being the 'natural and fundamental group of society and the natural environment for the growth and wellbeing of its members'.

Another perennial issue of concern has been abortion, as mentioned earlier. The Declaration on the Rights of the Child contained a provision which gave children special safeguards and care before as well as after birth. This, in its original form, was inserted into the preamble of the Convention, where it has no legal status. The only provision relevant to the issue of pre-natal rights is Article 6 which recognises that every child has the inherent right to life, but avoids any mention of the stage at which human life begins. Evatt (1989) explains some of the behind-the-scenes battles which accompanied the original drafting of the preamble, with the Italian delegation attempting to add 'from the moment of conception', Israel arguing that such a provision would contradict its domestic law, and Canada pointing out that no legal definition of the rights of the unborn was acceptable to all States. Interestingly, it was the delegate from the predominantly Roman Catholic Philippines who proposed that 'appropriate' legal protection be inserted and that the phrase 'before birth' should replace 'from conception'. This then became a component of the 1959 Declaration and is now incorporated into the preamble to the Convention.

In addition to those who are implacably opposed to the adoption of the Convention, there are many who, with varying degrees of force, will argue that its ratification will do no harm but will also probably do no good. Some, such as Wade (1989) take issue with the concept of children's rights itself, describing it as 'particularly unhelpful', and fearing that laws aimed specifically at children may be 'cheap placebos' which in fact detract from the larger issues such as inadequate education and housing.

The application of the Convention's necessarily broad, vague language to specific disputes involving conflicting interests is seen as being problematic by some.

The Convention's supporters see its particular strengths as the focusing of public opinion (Mason 1990), as providing a framework for the definition of generally applicable standards, and as a comprehensive document which consolidates the international rights of children.

And in response to those implacably opposed to the provisions which recognise children's right to freedom of thought, association, assembly and expression, commentators are quick to point out that Australia is already committed to these, as it has previously ratified several human rights documents which recognise rights attributable to all human beings. In such instances the Convention on the Rights of the Child re-affirms the rights in a child-oriented instrument.

Foster Parents Plan of Australia has distributed In the Child's Best Interest throughout Australia, and have virtually no stock left. The book may be borrowed from municipal and school libraries.

References

  • Burdekin, B. (1989), 'The draft UN Convention on the rights of children: an Australian perspective', Australian Social Policy, Vol.1, No.2.
  • Castelle, K. (1989), In the Child's Best Interest: A Primer on the UN Convention on the Rights of the Child, Foster Parents Plan International, Inc. and Defence for Children International USA, New York.
  • Childright (1990), 'The UN Convention on the Rights of the Child', Childright, No.63, pp.13--20.
  • Evatt, E. (1989) 'Children's rights and the legal regulation of families', Paper presented at the Third AIFS Australian Family Research Conference, Ballarat.
  • Harrison, M. (1987) 'Adolescent issues and the law', Family Matters, No.19, Australian Institute of Family Studies, Melbourne.
  • Human Rights and Equal Opportunity Commission (1989), Our Homeless Children: Report of the National Inquiry into Homeless Children, AGPS, Canberra.
  • Mason, D. (1990), 'The rights of Australia's children in a global context', Children Australia, Vol.15, No.2.
  • Wade, J.(1989), Commentary notes on Evatt, Third AIFS Australian Family Research conference, Ballarat.