Children's Rights

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CAN THERE BE ANY UNIVERSAL CHILDREN’S RIGHTS? SOME CONSIDERATIONS CONCERNING RELATIVITY AND ENFORCEMENT Kristina A. Bentley Discussion paper D&G Seminar 6 November 2002

OUTLINE…………………………………………………………………………………....1 1. 2. 3. INTRODUCTION…………………………………………………………………………..2 POINTS OF CLARIFICATION: WHAT THIS PAPER IS NOT ABOUT…………….2 WHAT ARE CHILDREN’S RIGHTS?……………………………………………………4 3.1 Child labour……………………………………………………………………..……6 3.2 Child soldiers…………………………………………………………………………7 3.3 Drugs and prostitution………………………………………………………………..9 3.4 Crime and punishment………………………………………………………………10 A UNIVERSAL UNDERSTANDING OF CHILDHOOD? SOME CHALLENGING EXAMPLES…………………………………………………………..11 4.1 Children who commit violent crimes: The Bulger killers…………..………………11 4.2 Children engaged in combat: Liberia, DRC and Sierra Leone…………………...…13 4.3 Children as economic agents: HIV/AIDS and dependency…………………………………………………………………...……..14 4.4 Marriage and childbearing: children with children……………………………....…15 ALTERNATIVE CONCEPTS OF CHILDHOOD……………………………………...16 AGE-RELATED (DEROGABLE) RIGHTS AND QUESTIONS ABOUT AUTONOMY…………………………………………………………………….19 6.1 Political participation………………………………………………………………..19 6.2 Property administration……………………………………………………………..20 6.3 Self-ownership………………………………………………………………………20 6.4 Freedom of association………………………………………………………...……21 CONCLUSION(S)…………………………………………………………………………22 SOURCES………………………………………………………………………………….23 APPENDIX: DOCUMENTS a. United Nations Convention on the Rights of the Child, 1989 b. The Constitution of the Republic of South Africa, 1996 (Chapter 2, Section 28 on Children) c. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000 d. Status of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 29 July 2002

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INTRODUCTION

This paper is intended for the purposes of discussion to raise questions, rather than present answers to the problem of the universality of children’s rights. The paper considers the ideal definition of childhood implicit in the UN Convention on the Rights of the Child (CRC) and other domestic and international law documents, and questions whether or not this definition can have any universal purchase in light of vastly different conceptions of childhood both in South Africa and across the world. The paper seeks to make the distinction between fundamental rights that children have as human beings (non-derogable rights), and rights that they may be regarded as having in terms of their status as children by virtue of their age (derogable rights). It is the latter rights that are regarded as being most problematic in some universal sense. The paper then goes on to illustrate this by drawing on examples that pose challenges to the received conception of childhood underlying the CRC, and raises the question of whether the notion of children’s rights should be rethought from a perspective of autonomy and obligation.

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POINTS OF CLARIFICATION: WHAT THIS PAPER IS NOT ABOUT

Some initial clarification of the issue being addressed here is necessary to avoid confusion, as the topic of children’s rights is both emotive and contentious. Indeed “[t]o question children’s rights has been described as a modern-day heresy”1 and so one must endeavour to be absolutely clear in navigating this tricky terrain about precisely what is being debated. There are two critical positions on universal children’s rights that are rejected at the outset. This paper is not an attempt to cast doubt on the concept of children as having the capacity to be right-holders in any sense. My position is based on an interest rather than a choice conception of rights. A version of the former of these can quite comfortably accommodate the notion of children as holders of rights of various kinds. Choice theory however more or less precludes the possibility of children being...
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