Childhood in a Global Perspective. Karen Wells
rights emerged alongside the increasing penetration of the state into family on the one hand and a body of humanitarian law on the other.
The field of child law is not new; debates about the legal competence of young people and the necessity of separate legal procedures for dealing with minors date back to at least the sixteenth century. Alongside this concern about when children could be held responsible for breaking the law runs a connected anxiety about how to keep children from causing injury or harm to themselves or others. It is this anxiety that fuelled the child-saving movements of the nineteenth century in North America and Europe discussed above, but the concern about the ability of children to distinguish right from wrong and the moral instruction of children are there in the writings of Locke and in the records left by the Puritans in sixteenth-century colonial America.
Prior to the nineteenth century laws governing childhood were enacted, if at all, at the national level. From the beginning of the twentieth century, in tandem with the expansion of the state into family life, international norms, policies and laws about child rights were developed to govern childhood on a global scale. However, then as now, this architecture of international rights and norms was erected in a highly uneven international system of states and territories.
International law was developed to establish mutually agreed rules of conduct on international matters between sovereign states. The Treaty of Westphalia, which is considered to be the beginning of the formation of a community of states, was signed in 1648, at the end of the Thirty Years War in Europe. Child rights law arose out of a much more recent body of international law: humanitarian and human rights law. It attempts to govern not only relations between states, as international law had previously done, but also relations between states and societies. The expansion of this field of law to children has been sporadic and, interestingly, much of it was formulated in response to the impacts of war on children.
The League of Nations, which was formed after the First World War to try and prevent future wars, adopted the Declaration of the Rights of the Child in 1924. It was drafted by the founder of Save the Children, Eglantyne Jebb. The five articles of the declaration were simple and replaced a discourse of solidarity that had animated sections within the early child-saving moments (and arguably in the International Labour Organisation (ILO) Minimum Age Conventions discussed below), with one of quasi-religious sentiment:
1 The child must be given the means requisite for its normal development, both materially and spiritually;
2 The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succoured;
3 The child must be the first to receive relief in times of distress;
4 The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation;
5 The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men.
In drawing on a Romantic and religious discourse the Declaration was framed in the language of nineteenth-century child-saving. The Declaration was not enforceable in law and was endorsed by the League as a World Child Welfare Charter. Nonetheless the very fact that the hegemonic powers in the international system framed a commitment to the ‘rights of the child’ laid the foundations for the emergence of the rights-bearing child because it incorporated the child into law, into public life, and set the child outside of the sphere of the family.
An expanded version of the League of Nations Declaration was adopted by the UN in 1959. This introduces the principle of ‘best interests’ which is an important element in the 1989 United Nations Convention on the Rights of the Child (UNCRC). It also removes the child’s right to work from the earlier Declaration (see point 4 above), replacing it with the entitlement to free and compulsory elementary education. The 1959 Declaration continued to define the child as principally in need of protection and special consideration rather than as a rights-bearing individual. It is not until the drafting of the UNCRC that the child is addressed as a rights-bearing individual, although even in the UNCRC child-saving remains a dominant theme.
The concerns of the 1924 and 1959 Declaration on the protection of children were echoed to some extent in the adoption by the ILO of Conventions to restrict child labour. The ILO adopted Minimum Age Conventions in 1919 (industry) and 1921 (agriculture). The Minimum Age (Industry) Convention (No. 5) was adopted in 1919 and ratified by the UK in 1921, the year it came into force, but it was not ratified by France until 1939 and was never ratified by the USA. The Minimum Age (Agriculture) Convention (No. 10) was adopted in 1921 but was not ratified by any of the major powers until several decades afterwards. Furthermore, Convention 10 is concerned with ensuring that agricultural labourers under the age of 14 years could combine their work with their education. The Convention therefore continued to support the gradual expansion of school education and decline in child labour that accompanied the development of technology on the one hand, and the increased need for numerate and literate citizens on the other.
UN Convention on the Rights of the Child
When a special human rights instrument for children was proposed in 1979 by the Polish government to mark the International Year of the Child, children’s rights were very low on the political agenda. The concept of a global model of childhood that the Convention implicitly expounds was far from universally accepted by the signatories. Many states entered blanket reservations to the Convention of the kind entered by Djibouti, an Islamic state, which affirmed that ‘[t]he Government of Djibouti shall not consider itself bound by any provisions or articles that are incompatible with its religion and traditional values’ (Harris-Short 2003: 135). Several states, including Singapore, entered reservations that subordinated the Convention to national law.
Given that the model of childhood encoded in the Convention follows a well-established Western discourse on childhood as a time of play, innocence and learning, it might be expected that ‘the West’ was happy to ratify the Convention without reservations. In fact, this was not the case. While the United States is the only national state that has not ratified the Convention, the UK entered reservations in respect of immigration law which were only lifted in 2008.
The final draft of the Convention was adopted by the UN Commission on Human Rights in 1989 and came into force on 25 September 1990, just over six months after the signing ceremony and nearly one month before the World Summit for Children in New York. The Summit had originally been planned as an effort to keep children’s rights on the international agenda ‘because no one had anticipated that this would happen spontaneously’ (Cohen et al. 1996: 441).
Despite the reservations entered by many participating states, and notwithstanding the low level of interest in children’s rights and even opposition to the very idea of a separate human rights instrument for children, since the Convention came into force the field of international children’s rights law has proliferated. There are now over a hundred instruments of international child law (Angel 1995; Van Bueren 1998; Saulle and Kojanec 1995).
The UNCRC is the first document of international law that expressly invests the child with political rights. Cynthia Price Cohen, who was involved in the drafting of the Convention, held the view that the US delegation to the working party was instrumental in ensuring that the Convention shifted the understanding of children’s rights towards participation (Cohen 2006). She notes that it was the USA that proposed the inclusion of articles on freedom of expression (Article 13), freedom of religion (Article 14), freedom of association and assembly (Article 15) and the right to privacy (Article 16). These are all classic liberal principles and it is fitting that the USA, which views itself as a quintessentially liberal state, should have introduced these Articles into the UNCRC; even if it is at the same time ironic, since the USA has never ratified the UNCRC. These Articles are intended to limit the power of the state over the individual, which is the classic aim of political rights. Furthermore, Article 12, which is usually cited as the Article that makes the UNCRC a participatory rights-bearing instrument, and therefore limits the reach of the state over the lives of child-citizens, does not, in fact, grant