The language of children’s rights - Aof the Universal Periodic Reviefrom the perspective of

The language of rights is a particularly forceful device in both moral and political debate (Birnbacher, 2009). The UPR, being a peer review of states by other states, has provided a welcomed opportunity for human rights, including children’s rights, to be promoted by an interactive dialogue that is based on the principles of cooperation and equal treatment of all States, and conducted “in an objective, transparent, selective, constructive, non-confrontational and non-politicized manner” (OHCHR, 2007, A/HRC/RES/5/1). McMahon (2010), in conducting one of the earliest analysis of the UPR makes encouraging statements about its potential for freeing up the ‘alliance mentality’ that exists, for example, in the General Assembly. He says that “a frequently expressed statement amongst observers and participants in the UPR process is that by contrast to other functions of the HRC and the UN General

Assembly where regional affiliations and loyalties “lock-in” North-South conflict, the UPR recommendations process emphasizes bilateral, state-to-state relations” (McMahon, 2010) An inference in McMahon’s comment is that the UPR has the potential of being less political in nature than any other UN mechanism produced thus far, which, presumably, gives greater potential for human rights to be respected and implemented on the ground.

The UPR also at first glance seems to have gained significant moral force for compliance. The fact that not one state has reneged on its review speaks volumes about the peer pressure this new mechanism has generated. Comments made by the representatives of three permanent Missions interviewed for this research support this viewpoint. Many delegations of SuRs have been headed by minsters along with a sizeable team of specialists to assist with the State’s response to questions posed during the interactive dialogue. Sen (2011) notes that the largest Commonwealth delegation was Malaysia with a team of 32 members. Such attention gives support to the view that there is a strong moral force felt by states to ‘perform well’ on the UPR stage.

Within the UPR framework, one could expect children’s rights to hold significant prominence, given the virtual universal ratification of the Convention on the Rights of the Child (http://en.wikipedia.org/wiki/Convention_on_the_Rights_of_the_Child#cite_note-untreaty-0). Does this stand up in practice? Because the main objective of the UPR is to improve human rights on the ground, using the Charter of the United Nations, the UDHR and human rights instruments to which states are party to, then children’s rights certainly have a legitimate place in the review agenda.

Nonetheless, at the political level, children’s rights have to compete with other needs and priorities - both civil and social - especially when it comes down to a financial allocation in a nation’s budget. The debate can be even more intense for poorer countries that experience pressure from powerful international money lenders such as the International Monetary Fund (IMF) and the World Bank, influenced by neo-liberalist ideologies, to prioritize development over social needs (Hart, 2008). Hart claims that

the indebted governments of poorer nations have found themselves on the receiving end of measures imposed by the International Monetary Fund that have often required them to open up their economies to Western capital and to surrender a large degree of control over budgetary allocation, including two areas such as health and education.

In such situations, this cannot be a favourable developing context for the children and their related human rights. Consider the case of Malawi. At its UPR, Malawi rejected several recommendations similar to Mexico’s (“Make primary education compulsory, in conformity with article 28 of the Convention on the Rights of the Child”, (OHCHR, 2011, A/HCR/16/4)) that called for both free and compulsory primary education. Yet it accepted softer forms of recommendations that did not insist on education being free and compulsory, such as the one from the Holy See to “make education one of its top priorities, and reinforce equitable access to higher education - based on academic and educational standards” (OHCHR, 2011, A/HCR/16/4). Here we see a state caught between the call for legal compliance of article 28 of the CRC, which it has rejected, and the moral pressure to ensure its population is well educated. Without knowing the details of why it rejected the calls for free and compulsory primary education, one can guess that the poverty of the country would be a key factor – it simply cannot afford to do so. Malawi ranks among the world’s most densely populated and

least developed countries and its economy depends on substantial inflows of economic assistance from the IMF, the World Bank and individual donor nations. Since 2009 it has experienced a general shortage of foreign exchange, which has damaged its ability to pay for imports and struggles to pay for major infrastructures within the country such as transport and electricity (Malawi - CIA - The World Factbook, 2012). It seems, then, that Malawi has rejected calls that it knows it will find almost impossible to deliver at this present time but nonetheless it still sees its obligation to improve the situation of education for its citizens. The state’s decision to reject free and compulsory primary education appears to be both pragmatic and realistic. We see here the interplay between politics and the economy and perhaps even outside pressures influencing its decisions in this matter.

Hart (2008) contends “the inseparability of politics from economics is central to the notion of political economy”. That is to say, he does not see politics and economics as two distinct fields but rather as two aspects of power, the workings of which are bound up in each other. He notes that Jonathan Nitzan and Shimshon Bichler have argued against a dualist or interconnected view of politics and economics but goes on to say that “it takes no great imagination to envisage situations in which the acquisition and exercise of political power involves economic power in some form”.

Hart’s view is that politics and economics go hand in hand when it comes to policy making and implementation. If there is congruence between political will and the economy, then it is more likely that policies and programs will be implemented. Thus, if children’s rights hold prominence with government, it is more likely that they will be properly respected through policies and adequate budgetary allocation.

Before going further, it is pertinent to consider the social construct of childhood with a view to seeing what images of children prevail in the political arena. As already noted, if the image is one that is treasured, the greater is the potentiality for children’s rights to be respected. The reverse can be true as well.

* * * 3.2 Images of the Child

Holzscheiter (2010) maps out three historical images of childhood: the unruly/irrational child, the immanent child and the innocent child. The image of the unruly or evil child constructs the child as an immature and irrational human being in terms of morality, sin and guilt, full of mischief and violence whereas parents and public authorities represent the authority to tame these children and to lead them towards a state of reasoned behaviour and civilized conduct.

The image of the immanent child, according to Holzscheiter, can be traced back to the writings of John Locke and his concept of the immanent child – “a human being with potential, incomplete, yet-to-be – which is utterly ignorant and unreasonable and moves towards reason while becoming an adult” (Holzscheiter, 2010). In a similar way, Achard refers to Locke’s writings, seeing children as “the recipients of an ideal upbringing, citizens in the making, fledgling but imperfect reasoners and blank sheets filled by experience” (Achard, 2004).

Holzscheiter says that “both the immanent child and the evil child images share an understanding of children as largely human beings who should be guided towards adulthood, responsibility and rationality as quickly and straightforward as possible”.

Concerning these first two images, James (2009) draws our attention to the division often drawn between adult ‘human beings’ and children ‘human becomings’, namely that children’s lives and activities in the present are envisaged mostly as a preparation for the future:

Prior to the 1970s it was precisely such a view of children that predominated within the social sciences. The study of children as individual social actors was simply not yet part of its agenda and children were studied predominantly as representatives of a category whose significance lay, primarily, in what they reveal about adult life.

James (2009) lays this particular concept of the child as a ‘human becoming’ at the door of developmental psychology. He notes that the study of children had long been its special province and expertise as far back as the late nineteenth century.

With the third image, that of the innocent child, Holzscheiter (2010) recalls Achard’s view that differentiates itself from the first two which considered the child as needing to be guided towards adulthood. This third image looks on the child as ‘being’ in his/her own right as distinct from the first two that are images of ‘becoming’. Achard (2004) calls it “seeing children as children, that is not as adults, and as having certain qualities in virtue of being children”. Holzscheiter recalls that this image of ‘being’ was brought to public awareness particularly by Rousseau through his book On Education or Émile, first published in 1762, which held the perception that the child was essentially good, angelic and without sins – a reverse view of the first two images which held ‘adulthood’ as the ideal. Whereas the innocent child claims childhood as being the ideal - children are blessed with a natural goodness that is lost in adulthood. Holzscheiter summarizes by noting that “all three images of the child still find their contemporary counterparts in Western societies today.”

* * *

3.3 Emergence of the child into the international political arena

A significant milestone, marking the emergence of the child into political awareness, was the Geneva Declaration of the Rights of the Child by the League of Nations in 1924 (http://www.un-documents.net/gdrc1924.htm). Whilst, in fact, the Declaration carried no rights of children as such, but rather a list of five principles necessary for the care and protection of children, the fact that its title referred to children’s rights brought a new political awareness to the understanding of the child and the image of childhood. Moreover, Holzscheiter (2010) notes that

[c]hildren, in fact, were chosen as the ‘most important rallying object of the future work [of the League of Nations] towards international harmony’. This all the more so since children were seen as some kind of neutral terrain on whose protection all State Parties to the League of Nations could agree.

This view that children are seen as ‘neutral territory’ still holds sway today, providing opportunity for children’s rights to be advanced within the political and diplomatic forum of the UPR, particularly when viewed as needing special care and protection. This view is supported by the comments made by several of those interviewed for this research paper. They were asked:

“What sway do children’s rights have in the political debate when competing with other priorities of governments?” The responses, on the whole, supported the view about neutrality on children’s issues:

• Children’s rights are politically safe – even safer than women’s issues!

• States are much more open to talking about children’s rights, they are a safe area to talk about, much safer than hot topics: torture for example.

• There is no hierarchy of human rights in the UPR. Child Rights are on a par with others. It depends on the issues relating to the SuR and the priorities of the recommending state. There is good acceptance of children’s rights though.

Children, in general, are regarded as needing special care and attention. They need the protection of the State.

However, along with her other three images of the child already mentioned, Holzscheiter (2010), introduces a fourth image of the child, that of the evolving child. Here she notes that this image emerged with the civil rights movement of the late 1960s, where child liberationists brought to the surface the idea that children should be seen as fully-fledged citizens, claiming that children should have control of their own lives and be able to participate in society – not just be seen as objects, but as subjects in their own right. James (2009) refers to this to as a ‘paradigm shift’ in childhood image and a break with tradition.

At around the same time, Holzscheiter (2010) recalls that there was public outcry regarding the issues of child abuse and neglect within the family, which led to greater intervention in family affairs by government regulatory bodies. Following this intrusion into the privacy of the family, there emerged calls for a greater emancipation of the child and for an active participation in decisions by the child concerning his/her best interests (Holzscheiter). This image bought with it a new dimension to children’s rights, a group of rights that includes freedom of expression and involvement in decision-making, that children should be given ‘voice’ in decisions being made about them. James (2009) gives an example of children having ’agency’ in decisions that affect them:

In their research on children’s experience of abusive families in Australia, Mason and Fallon (2001) reveal children exercising agency in the form of choice – that is choosing not to reveal their experiences to agencies. This ‘choice’ similarly reflects children’s understanding of familial care, which serves to balance out the inequalities associated with the exercise of power and control.

Thomas (2007), in his writings on politics and sociology, draws attention to the distinction between ‘participation’ and ‘consultation’ when it comes to children’s involvement, noting that participation can refer generally to taking part in an activity, or specifically to take part in decision-making, whereas in consultation children’s views are sought but do not participate at the stage where decisions are actually made. He quotes research by Kirby et al. (2003) where 146 organizations involved with children’s activity were surveyed. Thomas draws attention to their report, which suggests that

most participation is locally based and in small organizations or agencies, and is most likely to involve generic youth work or community regeneration than other areas; that a very wide range of children and young people are involved ... but the most common age group is 12-16 year olds; and that most participation focuses on service development or delivery with less attention given to policy or strategic development.

In other words, children’s participation is seen mostly at the local level and in small organizations. Thomas (2007) notes that the engagement of children with central or local government is more along the lines of consultation, to ‘listen’ to children and young people when developing policy or planning services, rather than participation. In another research conducted by Kirby, Thomas recalls the conclusion that “young people were having little impact on public decision-making, although there was evidence that good participatory work improved young people’s confidence and skills as well as giving them opportunities to make friends”. This was certainly true with the following example.

Here we see children’s agency through participation, in the context of UPR. It centres around a submission prepared by a group of children in India in 2011, under the guidance of the NGO

“Edmund Rice International”. A group of young people were guided through the process on how to prepare a submission, identifying for themselves the issues they wished to bring forward in their submission. Just prior to India’s review in May 2012, three young people representing the whole group that prepared the submission came to Geneva and met with several Permanent Missions to lobby for their recommendations. As well, they met with representatives from the Permanent Mission of India and engaged them in a 2-hour discussion. One member of the children’s delegation was mute and so was accompanied by an interpreter for her sign language. At first the Indian delegation took a polite but condescending view in their discussions with the young people but as their responses were met with more questions and informed comments by these young people, the tone of the meeting moved from one of simply

‘listening’ to one of fruitful and engaging dialogue. It was an enriching experience both for the children and the adults who were privileged to meet with them (NINEISMINE, 2012).

* * *

3.4 Analysing children’s rights in the political context

An analysis of how certain Child Rights issues at the UPR are treated may provide insight into political, religious or cultural influences within the forum of the UPR. A sample of recommendations on children’s issues is taken to provide a basis for this analysis.

Research for this study reveals that 83.3% of children’s rights recommendations in the 1st cycle were accepted by states - well above the 73.1% for all recommendations accepted. An observation is that this seems to reflect a high level of respect for children’s rights in this context. Nonetheless, closer scrutiny of recommendations rejected by states may offer insight into the more contentious issues among children’s rights. Are they contentious across the board or are they more culturally or ethnocentrically based? Such a consideration may also help one understand cultural differences and hence the varying viewpoints applied to children’s rights that states bring to the floor of the UPR.

Renshaw’s study (2010) on the status of children’s rights in the first seven sessions of the UPR revealed that the most rejected Child Rights issues are Corporal Punishment, Juvenile Justice, Children in Armed Conflict, and Ethnic Minority Groups. All these are significantly ahead of any other category of rejected recommendations about children and all of them are rights that are contained in the CRC. Analysis of the first three reveals that there is a different group of

‘rejecting’ states for each of these issues; that is to say, it is not just the same states that are rejecting these recommendations. For example, recommendations relating to Juvenile Justice

were rejected the most by Asian states⁴; whereas states from the Latin American and Caribbean Group⁵ were well ahead of others in rejecting Corporal Punishment. Concerning Recruitment into the Armed Forces/Children in Armed Conflict, the rejecting states were fairly evenly spread across African, Asian and Western states⁶.

To take the issue of corporal punishment, by way of example, the NGO “Global Initiative to End All Corporal Punishment of Children” has released its ‘Progress Report 2012’ on the situation of corporal punishment in the Caribbean. The report claims that while substantial progress has been made on banning corporal punishment in situations outside the home, no state or territory in the Caribbean has yet achieved prohibition in the home (Prohibiting corporal punishment of children in the Caribbean – Progress Report 2012). It further notes that “despite high levels of corporal punishment experienced by children and high levels of approval of corporal punishment expressed by adults, research also shows some ambivalence in adult attitudes towards corporal

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