Introduction
Human rights are often been equated with legally enforceable claims against the state and/or other individuals[1]. The phrase ‘human rights’ is used in a generic or global sense to include all rights or claims that are regarded as fundamental or inalienable, and thus including first, second, and indeed third generation rights such as the right to self-determination and the right to enjoy the environment. Human rights uphold the basic dignity of the individual as a human being; every human being, because they are human, is said to deserve humane treatment. Thus, the basis for protecting human rights is of course, vulnerability to attack from those who feel that certain individuals, because of their conduct, have forsaken their right to dignity.
Domestic law attempts to uphold the fundamental rights of its citizens, the protection of such rights has benefited from the movement to protect these rights in international law[2]. Such a movement gives human rights a global significance and provides a mechanism by which to use universally agreed standards to judge the legitimacy of each state’s record of protecting such rights. The protection of human rights by states depends on whether the state upholds and maintains the basic tenets of the rule of law. In essence the rule of law insists that states and governments follow basic principles of constitutional fair play. The doctrine accepts that the law has essential characteristics which distinguish it from arbitrary and unfair rules and in turn the human rights movement presupposes that the legal system will reflect those characteristics and provide the basis for protecting our fundamental rights.
International law on the Rights of the child is based upon the premise that international law is a valuable tool for those seeking to improve the daily lives of children. The history of the international law on the rights of the child is a curious tale. Children’s right were the first to be protected by an international clarion call, and yet little appeared to change. As the 21st century dawn, the fact that children’s rights are now reflected in binding international legislation implies that the treatment of children by governments is no longer simply a matter of domestic concern. Hence the central issue is not one of law, but of respect, and of recognition that children as human beings are entitled not only to care and protection, but also to participate in decisions involving their own destinies to a greater extent than is generally recognized.
Definition of a Child
Although definition of childhood is a social construct, it is no more than adulthood, and the arbitrariness of the definition is not a reason for denying the existence of specific rights attaching to childhood[3]. While the question ‘what is a child’ has been posed, it is a dehumanizing approach. The question ought to be who is a child; and who is a child is an artificial construct.[4] From the traditional perspective, a child has been defined as a comparative negative: a child is an individual who is not yet an adult. Van Bueren contends that this definition is laden with religious, cultural, physical and psychological practices and beliefs. According to her, there are only two points in contention: the beginning of childhood and the end of childhood. The general rule is that a child becomes a human being only when it achieves an existence independent of its mother[5]. This suggests that the beginning of childhood commences when upon becoming a human being legally so to say. However, states hold such conflicting views as to when childhood begins that they cannot be reconciled simply by the device of a treaty. Some states believe that the concept of childhood includes the entire period from the moment of conception, others limit it to a specific period in the womb, whilst others align with the general principle that childhood begins at birth (upon becoming a human being). Because of the contentious nature of the issue of the beginning of childhood, the convention on the Rights of the Child (1989) does not restrict a state’s discretion to provide under its domestic law the point when childhood begins[6]. The point at which childhood begins has become and, some would argue has necessarily become, conterminous with the right to life[7]. Hence, under the convention, the beginning of childhood and therefore life itself is to be determined by the states parties’ own domestic legislation[8]. Not minding that states have the right to legislate on the beginning of childhood, few cases decided on the protection of the right of unborn child reflect how the issue is been treated by international law.
The issue has also arisen within the council of Europe. In Paton V. United Kingdom the European Commission of Human Rights had to decide whether the unborn child is protected by article 2(1) as the question had been expressly left open in the previous cases of Bruggeman and Scheuten[9]. It was observed by the commission that the same point had also been the subject of proceedings before the Constitutional Court of Austria. It was found by the Austrian Constitutional Court that article 2(1) of the European Convention does not extend to unborn life. While the European Commission in like manner rejected the contention that the foetus has an absolute right to life[10] but noted that ‘certain rights are attributed to the conceived but unborn child, in particular the right to inherit.
From the limited case law and treaty law it would appear that international law protects the beginning of childhood from birth. By virtue of Convention on the Rights of the Child states are not prohibited from extending their definition of a child to pre-birth, but such protection cannot be read into customary international law nor into treaty provisions which protect the right to life, unless they expressly state as in article 4(1) of the American Convention that the right to life is protected in general from the moment of conception. Nevertheless, there are, however, specific exceptions where protection is extended to the unborn. For example Article 6(5) of the International Covenant on Civil and Political Rights allows sentences of death to be imposed but not carried out on pregnant women, and article 6(4) of the Geneva Protocol No.1 1977 goes further and prohibits the actual pronouncement of the death penalty on pregnant women. Both of these prohibitions, by directing the exception at the pregnant mother, avoid a definition of childhood.
Another fundamentally contentious issue relates to the end of childhood or the attainment of adulthood. There exist traditional differences between societies and cultures as to the role of children within the family and the community, leading to inevitable differences in how communities view the duration of childhood. From traditional setting there are a number of factors which are commonly applied to determine the end of childhood: the attainment of a particular age, the ability to perform specific acts or the capacity to perform particular functions.
It is trite to state that neither the 1924 nor the 1959 Declaration of the Rights of the Child defines the end of childhood. But article 1 of the Convention on the Rights of the Child profers a definition of a child which implicitly states the end of childhood. Thus it states:
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
The African Charter on the Rights and Welfare of the Child (1990) provides in Articles 2 thus: for the purposes of this chapter, a child means every human being below the age of 18 years. This has copiously been adapted by the Nigerian Law on Child Right. It provides: “child” means, a person under the age of eighteen years”.[11]
Despite the limitation of end of childhood at eighteen years, there are however, a number of international treaties concerning children which do set an upper age limit of applicability for that particular treaty. Such governments would have been easier to accomplish, as many concern only one aspect of a child’s life. In both the Hague Convention on Civil Aspects of International Child Abduction 1980 and the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 1980, a child is defined for the purposes of the convention as being under 16. The International Covenant on Civil and Political Rights, which prohibits the imposition of sentences of death on people who committed crimes below the age of 18, but omits the use of the word child. The Supplementary Convention on the Abolition of Slavery 1956 prohibits the delivery for purposes of exploitation of persons under the age of 18. Similarly the International Labour Organization Convention Concerning the Minimum Age for Admission to Employment 1973 sets 18 as the minimum age for any employment that is likely to endanger a person’s health, safety or morals and establishes a general minimum age of 15 for employment.[12]
The truth remains that the international community is still some way from agreeing on a universal definition of childhood, and it is at least arguable a to whether such a universal definition is even desirable. There does, however, appear to be a trend emerging in contemporary international law that the rights of the child should be applicable to as many as possible under 18 evidenced by the adoption of recent standards on juvenile justice and by the definition of child in the African Charter on the Right and Welfare of the Child[13]. By linking the international definition of childhood to the national law on majority, the convention attempts to accommodate the existing cultural and religious diversities reflected in national age limits.
Family as a Basis for the Right of the Child
Murdock in his claim that family is a universal phenomenon defines it as:
“The family is a social group characterized by common residence, economic co-operation and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved relationship, and one or more children, own or adopted, of the sexually cohabiting adults”.[14]
In the Australian case of Mehmet V. Mehmet,[15] the court was content to rely, at least in part, upon two nineteenth century English Masters of the Rolls: Romily MR: … the primary meaning of the word “family” is “children”;[16] and Jessel MR, The word “family” has various meanings … in (one) sense, the word includes children only; thus when a man speaks of his wife and family, he means his wife and children. How every word which has more than one meaning has a primary meaning … what then, is the primary meaning of “family”?
Although international treaty law salutes the family as the basic unit upon which society is organized[17] the family is a concept in transitional development. There is an essential dichotomy surrounding the family: it is conceptualized both as a cohesive association of autonomous people and as a group of individuals subject to a higher law which protects competing claims. Unlike the definition of child, international law lacks a treaty definition of family and it would be too simplistic to conclude that part of the problem is that, there is no convention on the Rights of the family. The fundamental issue of definition would still have to be resolved.
According to the Human Rights Committee, the International Covenant on Civil and Political Rights requires that for the purposes of article 17, the term family must be given a broad interpretation to include ‘all of those comprising the family as understood in the society of the state party concerned’[18]. The Human Rights Committee accepts that there is not a simply universally binding definition of family and has invited states to indicate in their reports the meaning given in their societies to the ‘family’. Similarly in the case of Cziffra and Nineteen Mauritius Women the Committee observed that the ‘legal protection or measures that a society can afford to the family may vary from country to country and depend on different social, economic, political or cultural conditions and traditions’.[19] The approach of the Human Rights Committee is based upon the state party’s definition of family. Prudently, the Human Rights Committee does not seek to impose a universal definition of family which would apply to all cultures for all time. There are, however, cultural traditions which are contrary to the child’s best interests. In Cziffra the Committee accepted that the definition was culturally sensitive, but placed limits on its flexibility by requiring that the definition had to be ‘without discrimination’, in other words in accordance with international human rights law. Although the definition is flexible when a group of persons is regarded as a family by domestic legislation it must be given article 23 protection[20].
In the nineteenth century, Auguste Comte proposed what was to become a constant theme in sociology: that the family is primarily instrumented in the conversion of the individual into a social being[21]. This is the process of ‘socialisation’, whereby the individual learns to adjust to the prevailing order, and takes on the norms (standards of conduct in given situations) in his or her set. By being socialized, the individual can predict the likely course of events in most situations because he or she has the appropriate expectations. Socialization is the means whereby individuals learn the ‘culture’ of their society ‘the way of life of its members; the collection of ideas and habits which they learn, share and transmit from generation to generation[22].
According to Van Bueren, two approaches can be ascertained in international law to the triangular relationship of the child, the family/community and the state. The historical approach in Western Countries has been to regard the family as akin to a tiny state in which parents are absolute monarchs[23]. This is illustrated by legislation in Colonial America, where the family was seen as the exclusive institution for the social control of children. In 1646 the Commonwealth of Massachusets enacted, for example, the Stubborn Child Statute, which provided that stubborn or rebellious sons above the age of 15 could be put to death on the complaint of the parents[24]. The second and more contemporary approach is to regard the family as a community of individuals possessing specific rights. This is the approach enshrined in international law.
Historically, international law has sought to safeguard the privacy of the family and has not attempted to regulate the quality of the relationships within the family. Hence the linking of the two concepts of privacy and the family in article 17 of the International Covenant on Civil and Political Rights and of the Privacy and Family life in article 8 of the European Convention on Human Rights. This has led to a policy of minimum intervention, which left the child vulnerable to the abuse of family members. This “hands off” approach is slowly changing, and international law is gradually and reluctantly moving into unfamiliar areas in which effect of a ruling of a human rights tribunal is tantamount to deciding the role of the family in the upbringing of children,[25] although tribunals appear reluctant to acknowledge this openly. In this light, the privacy of the family is no longer sacred. Therefore, in order to protect the rights of the child, human rights fora are now having to consider issues concerning state responsibility balanced against the privacy of individual family members[26]. On the one hand international law respects the privacy of family members, while on the other hand the state is under a duty to intervene where there is a risk that members of the family may be abusing the child. International law is therefore establishing boundaries within which states are under a duty to ensure that parental power is properly exercised and within limits.
The family was acknowledged as the principal instrument for the socialization of the child, but socialization is only slowly beginning to be perceived as a desirable goal if it encourages the teaching of participation skills within the family. This process may be described in rather darker fashion, as being a means of ensuring conformity with norms through the collective control of behaviour, achieved by individuals internalizing such controls through exposure to example and education. It continues throughout one’s life, although attention has been concentrated upon the childhood stage where the process is at its most intensive and the role of the family as a socializing agent is at its most influential. The learning involved in socialization develops the social self, the totality of attitudes that a person makes of him or herself.
The starting point of the process of socialization is the fact that the newborn baby is helpless, being not merely physically dependent upon older people, but lacking necessary behaviour patterns. A child responds to approval or disapproval, and follows parental example. Clearly, care, such as that involved in the availability of adults capable of providing appropriate stimulation, is crucial. Thus, the words of Lord Hailsham L.C in Richards V. Richards[27] to the effect that “the court ought not to continue itself to a consideration of purely material requirements or immediate comforts” would seem to involve an awakening legal cognizance of the sociological view that “To be born into a high socio-economic stratum does not guarantee a propitious child-rearing-milieu. But the physical environment in which the child is brought up will still be influential, with much dependent upon whether the family income is sufficient to generate the proper nourishment, housing, clothing and play space.”
It is worthy to understand that judicial allusions to socialization generally arise only in the case of those few children whose upbringing chances to attract the attention of the court. The primary focus of the law is on that minority of families which suffer formal failure (usually through divorce, more rarely through compulsory care proceedings) and it plays little part in buttressing the functioning family and the parent-child relationship. It is open to question whether, were the state to take more active role in socialization, there would be fewer ‘failed’ families and ‘better’ parenting. However, the importance of socialization to the state has been recognised in so far as education has become primarily the state’s responsibility. The concept of responsibility is particularly important for children as it helps educate others in the potential value of children’s contribution toward society, a potential often overlooked[28].
The African charter on the Rights and Welfare of the Child also provides for the duties of the child towards the family[29]. The African Charter provides that children have a responsibility to work for the cohesion of the family to respect parents and elders at all times and to assist them in cases of needs. These reciprocal rights and responsibilities of the child under the African Charter are seen as an integral part of family life.
Best Interest of the Child
The Declaration of the Rights of the child enshrines the principle that children are entitle ‘special protection’ and that such special protection should be implemented by reference to ‘the best interests of the child’, which shall be the paramount consideration. Thus article 3(1) provides
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.
Although the best interests of the child is common in domestic legislation. It is not expressly incorporated into many major human rights instruments. Within the domestic context the best interests’ standard, at least as it has been applied traditionally, grants broad discretion to the decision maker, thus leading to a lack of uniformity on a domestic level[30] which is multiplied on the international level. This is not surprising. There is a lack of agreement over what constitutes children’s interests, let alone their best interests.
Best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child. Thus the convention challenges the concept that family life is always in the best of interests of children and that parents are always capable of deciding what is in the best interests of children. It has been observed that the traditional use of the best interests’ standard robs individuals of the chance of questioning decisions, as the discretion may be based on unarticulated and unconscious predictions. Any decision taken in the child’s best interests ought to take into account the inherent inability of any legal system, national, regional or international, adequately to supervise not only family relations but all interpersonal relationships, and therefore ought to recognize the difficulty in making long term predictions. The concept of the best interests of the child, however, needs to be more than ‘raw judicial intuition’, as society relies upon law and international society relies upon international law to provide objectivity and an element of predictability.
One observation made about the convention is that it does not refer to their best right but to their best interests, interest arguably being a broader concept and a precondition of rights[31]. Hence best interests within the African Charter also implies that cultural traditions will not be accepted whereby they impede internationally protected rights of children. Nevertheless because a treaty is read as a whole, under the convention the child is given a much greater role in deciding what is in the child’s best interests than in the traditional approach. Because the convention on the Rights of the child is primarily an instrument of international human rights law, it incorporates a rights approach which would be wholly underlined if article 3(1) allowed back in either traditional best approach or an extreme stance of cultural relativism.
The significance of the provisions of article 3 is underlined by the fact that these provisions cannot be the subject of any reservation. This significance is further highlighted in the jurisprudence of domestic courts where, for example, in the United States, a US district court recognized the conventional ‘best interests’ principle as a principle of customary, international law.
Right to Education
The right to education is provided for in the convention on the Right of the child. Article 28 of the United Nations Convention on the Rights of the Child requires states to:
“Recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity…
(a) Make primary education compulsory and available free to all
(b) Encourage the development of different terms of secondary education… make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity;
The first specific global reference to the right of a child to education was enshrined in principle 7 of Declaration of the rights of the child 1959. The child is entitled to receive education. Although the rig ht to education extends to both adults and children, the principle of compulsory education is only applicable to children. It is a principle which implies that it is in the best interests of the child that children are not entitled to refuse education below a specific level. Many children could like to be able to attend compulsory education but because of a combination of factors, including that necessarily to contribute to the family’s basic survival, the distance of rural schools, traditional opposition to the education of girls and the imposition of school fees, they are unable to receive even the minimum of education.
Education has much to contribute to both individual and national development. Education is essential for children because it helps realize their full potential. International law, however, is not exclusively concerned with the child’s right to education, as is made clear by article 26 (1) of the Universal Declaration of Human Rights, “Everyone has the right to education. As far as children are concerned, although they are the principal beneficiaries of education, the focus of international law has been not on the rights of the child but on the right of parents to exert a degree of control over a child’s education. Hence, it is somewhat ironic that the right to education has appeared more frequently in discussions on the international rights of the child than any other right.
To assist states in attaining improvements in the exercise of individuals’ right to education the General Assembly declared 1990 as international literacy year[32]. This reflected the recognition that elimination of illiteracy constitutes a prerequisite for ensuring the right to education, and should be regarded by states as a priority. The motivations for the right of compulsory education was to keep children off the streets and away from crime and disorder. Children were seen as both perpetrators and victims of crime, and the idea of a cycle of deprivation and delinquency is not a twentieth century one. As early as 1535, concern was being expressed at the danger of vagrants’ children growing up knowing nothing other than how to beg[33]. The Tudor Government answer to this problem was a combination of education and punishment; pauper children could be removed from their parents and placed as apprentices or servants so that they could learn a trade or skill which would keep them safe from having to commit crime when they would be punished as severely as adults including suffering the death penalty. Prior to the adoption of the convention on the Right of the child it was only possible to challenge the imposition of specific forms of educational disciplinary measures on the basis that they fell within the general prohibition of torture, cruel, inhuman ad degrading treatment and punishment.
The questions which have not been posed by international human rights tribunals are firstly, decisions concerning the type of education so that education is in conformity with a child’s religions and philosophical convictions, and secondly, which rights, if any, have children under international law if they disagree with their parents’ choice of education.
It is obviously important that parents are given the legal capacity to intervene between the state and the child in order to be able to protect the best interest of the child, but merely because the wishes of the child and the parents frequently coincide does not necessarily imply that the child can never have an independent interest. In the light of the convention on the Rights of the child, and with the snail-slow emerging awareness of human rights of the rights of children to participate in decisions affecting their own lives, this bipartite relationship between the parent and the state has to be re-examined to determine whether the state is under any form of international legal duty to consider the wishes of the child to be educated in accordance with the child’s convictions.
The view which originally prevailed is reflected in article 26(3) of the Universal Declaration on Human Rights, ‘parents have a prior right to choose the kind of education that should be given to their children’. Parents are given this prior right because it was assumed that the interests of the child and of the parents would connate, so that there was no need to consider the separate wishes of the child. In the case of the Rights of Minorities in Upper Silesia, the permanent court of International Justice, the German Government argued that the decisions as to which school a child attends ‘depends solely upon the parents wishes’ irrespective even of the language spoken by the child. Article 13 of the International Covenant on economic, Social and Cultural Rights illustrate this approach, placing states parties under a duty to,
“Have respect for the liberty of parents and when applicable, legal guardians to choose their children schools other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the state and to ensure the religions and moral education of their children in conformity with their convictions.
It is worth noting that the convention on the Rights of the child does not contain a provision respecting the parents’ right to have their children’s education in conformity with the parents’ convictions. This was felt inappropriate for a treaty on the right s of the child.
Conclusion
The concept that children possess rights is viewed by some as a radical notion and denied by others. The denial is partly based on the belief that if children are acknowledged as rights-holders, they will cause conflict of interest, particularly within the family. Violation of children’s rights occurs on other levels which sometimes prove more difficult to identify. A failure to perceive children as separate human beings has led to breachs of their rights where actions are purportedly taken in the genuine belief that they are in the best interests of the child. Denials of the entitlement s of children do not stem from a lack of love, but from the lack of emotional maturity needed to see the child as a separate person. Hence the central issue is not one of law, but of respect, and of recognition that children as human beings are entitled not only to care and protection, but also to participate in decisions involving their own destinies to greater extent that is generally recognized.
C.T. Emejuru LL.M, M.Phil, Lecturer, Faculty of Law, Rivers State University of Science & Technology Port Harcourt.
F.C. Amadi, LL.M, Lecturer, Faculty of Law Rivers State University of Science & Technology, Port Harcourt.
[1] Foster S. (2008) Human Rights and Civil Liberties, London, Pearson, 10
[2] See Steiner and Alston (2007). International Human Rights in Context: Law, Politics, Morals, Oxford University Press, 3rd ed. 6.
[3] Van Bueren G. (1995). The International Law on the Rights of the child, Dordrecht, Martinus Nijhoff Publishers, 32
[4] Ibid 33
[5] See Enoch (1833) 5 C. and P. 539
[6] Ghandhi S. (2008). Blackstone’s International Human Rights, Oxford University Press, 96 Article 1 Convention on the Rights of the Child 1989.
[7] Van Bueren opcit 34
[8] See Baby boy case, Inter-American Commission on Human Rights Res. No. 23/81 Case 2141 (USA) March 1, 1981. where a majority judgment of the Inter-American Commission on Human Rights concluded that American Declaration of the Rights and duties of man allows each state to determine in accordance with the own domestic law the point at which life begins and the point at which the state believes it is necessary to provide protection.
[9] See Application No. 6959/75 Art 2(1) of the European Convention on Human Rights
[10] Although see Recommendation 874 (1979) of the parliamentary Assembly on a European Charter on the Rights of the Child which provides for ‘the right of every child to life from the moment of conception’.
[11] See Section 277, Child’s Right Act (2003), Cap C. 30 Laws of the Federation 2004.
[12] It permits states parties whose economies and educational facilities are insufficiently developed to set the lower age of 14 in international Humanitarian law that is special protection and assistance for those under 7. There is a prohibition on military recruitment of those under 15 in art 38(3) Conventions on Rights of the Child and in the two Additional Protocols to the Geneva Convention.
[13] Thus reflecting the preamble to the Convention on the Rights of the Child which recognizes that states should be:
“Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.”
[14] Murdock G.P. (1965) Social Structure, Collier-Macmillan, 1
[15] (1987)( FLC 91 - 801
[16] Re Terry’s will (1854) 19 Beav 580, 581
[17] See for example Art. 10 International Covenant on Economic, Social and Cultural Rights 1966, Art. 23(1) International Covenant on Civil and Political Rights 1966
[18] UN Doc A/36/40, 134-143.
[19] Ghandi and McNamee, (1991). ‘The Family in UK Law and the International Covenant on Civil and Political Rights 1986’ 5 Int Jo Law & Fam 104.
[20] General Comment on Article 23 UN Doc HRI/Gen/I
[21] Barton, C. and Douglas, G. (1996) Law and Parenthood, London, Butterworths, 11
[22] Lington, R. (Ed) (1945). “Present Conditions in Cultural Perspective” in the Science of Man in World Crisis, 203.
[23] Van Bueren, opcit, 72
[24] During the nineteenth century Connecticut, Massachusets and Pennyslvania rejected English common law and created a system of family law based upon Puritan Religious beliefs about how families were to be ordered and authority distributed.
[25] See for example comments of the European Court of Human Rights on the exercise of material rights in Nielsen V. Denmark
[26] See generally Lillich, (1981). The Family in International Law; Douglas, (1988). “The family and the State Under the European Convention on Human Rights; 2 Int Jo Law 8 Fam, 76.
[27] (1984) AC 174, 205
[28] Van Bueren, (1991) ‘A New Children’s Treaty, The African Charter on the Rights and Welfare of the Child, in International Children Rights Monitor.
[29] See also Art. 11(2) of the American Convention on Human Rights.
[30] See in relation to the United States of America, ‘The Best Interest Doctrine: Its Application in Divorce, Modification and Non-Parental Custody Disputes which Surveys Case Law and the different application of best interest; 8 J. Juv. L. 184 (1984)
[31] See Kleining, (1978) Crime and the Concept of Harm, who analyses the different meanings of interest 28
[32] Proclaimed on 7 December 1987
[33] Pinchbeck I. and Hewitt M., (1969). |. Children in English Society, vol.1, 95
Domestic law attempts to uphold the fundamental rights of its citizens, the protection of such rights has benefited from the movement to protect these rights in international law[2]. Such a movement gives human rights a global significance and provides a mechanism by which to use universally agreed standards to judge the legitimacy of each state’s record of protecting such rights. The protection of human rights by states depends on whether the state upholds and maintains the basic tenets of the rule of law. In essence the rule of law insists that states and governments follow basic principles of constitutional fair play. The doctrine accepts that the law has essential characteristics which distinguish it from arbitrary and unfair rules and in turn the human rights movement presupposes that the legal system will reflect those characteristics and provide the basis for protecting our fundamental rights.
International law on the Rights of the child is based upon the premise that international law is a valuable tool for those seeking to improve the daily lives of children. The history of the international law on the rights of the child is a curious tale. Children’s right were the first to be protected by an international clarion call, and yet little appeared to change. As the 21st century dawn, the fact that children’s rights are now reflected in binding international legislation implies that the treatment of children by governments is no longer simply a matter of domestic concern. Hence the central issue is not one of law, but of respect, and of recognition that children as human beings are entitled not only to care and protection, but also to participate in decisions involving their own destinies to a greater extent than is generally recognized.
Definition of a Child
Although definition of childhood is a social construct, it is no more than adulthood, and the arbitrariness of the definition is not a reason for denying the existence of specific rights attaching to childhood[3]. While the question ‘what is a child’ has been posed, it is a dehumanizing approach. The question ought to be who is a child; and who is a child is an artificial construct.[4] From the traditional perspective, a child has been defined as a comparative negative: a child is an individual who is not yet an adult. Van Bueren contends that this definition is laden with religious, cultural, physical and psychological practices and beliefs. According to her, there are only two points in contention: the beginning of childhood and the end of childhood. The general rule is that a child becomes a human being only when it achieves an existence independent of its mother[5]. This suggests that the beginning of childhood commences when upon becoming a human being legally so to say. However, states hold such conflicting views as to when childhood begins that they cannot be reconciled simply by the device of a treaty. Some states believe that the concept of childhood includes the entire period from the moment of conception, others limit it to a specific period in the womb, whilst others align with the general principle that childhood begins at birth (upon becoming a human being). Because of the contentious nature of the issue of the beginning of childhood, the convention on the Rights of the Child (1989) does not restrict a state’s discretion to provide under its domestic law the point when childhood begins[6]. The point at which childhood begins has become and, some would argue has necessarily become, conterminous with the right to life[7]. Hence, under the convention, the beginning of childhood and therefore life itself is to be determined by the states parties’ own domestic legislation[8]. Not minding that states have the right to legislate on the beginning of childhood, few cases decided on the protection of the right of unborn child reflect how the issue is been treated by international law.
The issue has also arisen within the council of Europe. In Paton V. United Kingdom the European Commission of Human Rights had to decide whether the unborn child is protected by article 2(1) as the question had been expressly left open in the previous cases of Bruggeman and Scheuten[9]. It was observed by the commission that the same point had also been the subject of proceedings before the Constitutional Court of Austria. It was found by the Austrian Constitutional Court that article 2(1) of the European Convention does not extend to unborn life. While the European Commission in like manner rejected the contention that the foetus has an absolute right to life[10] but noted that ‘certain rights are attributed to the conceived but unborn child, in particular the right to inherit.
From the limited case law and treaty law it would appear that international law protects the beginning of childhood from birth. By virtue of Convention on the Rights of the Child states are not prohibited from extending their definition of a child to pre-birth, but such protection cannot be read into customary international law nor into treaty provisions which protect the right to life, unless they expressly state as in article 4(1) of the American Convention that the right to life is protected in general from the moment of conception. Nevertheless, there are, however, specific exceptions where protection is extended to the unborn. For example Article 6(5) of the International Covenant on Civil and Political Rights allows sentences of death to be imposed but not carried out on pregnant women, and article 6(4) of the Geneva Protocol No.1 1977 goes further and prohibits the actual pronouncement of the death penalty on pregnant women. Both of these prohibitions, by directing the exception at the pregnant mother, avoid a definition of childhood.
Another fundamentally contentious issue relates to the end of childhood or the attainment of adulthood. There exist traditional differences between societies and cultures as to the role of children within the family and the community, leading to inevitable differences in how communities view the duration of childhood. From traditional setting there are a number of factors which are commonly applied to determine the end of childhood: the attainment of a particular age, the ability to perform specific acts or the capacity to perform particular functions.
It is trite to state that neither the 1924 nor the 1959 Declaration of the Rights of the Child defines the end of childhood. But article 1 of the Convention on the Rights of the Child profers a definition of a child which implicitly states the end of childhood. Thus it states:
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
The African Charter on the Rights and Welfare of the Child (1990) provides in Articles 2 thus: for the purposes of this chapter, a child means every human being below the age of 18 years. This has copiously been adapted by the Nigerian Law on Child Right. It provides: “child” means, a person under the age of eighteen years”.[11]
Despite the limitation of end of childhood at eighteen years, there are however, a number of international treaties concerning children which do set an upper age limit of applicability for that particular treaty. Such governments would have been easier to accomplish, as many concern only one aspect of a child’s life. In both the Hague Convention on Civil Aspects of International Child Abduction 1980 and the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 1980, a child is defined for the purposes of the convention as being under 16. The International Covenant on Civil and Political Rights, which prohibits the imposition of sentences of death on people who committed crimes below the age of 18, but omits the use of the word child. The Supplementary Convention on the Abolition of Slavery 1956 prohibits the delivery for purposes of exploitation of persons under the age of 18. Similarly the International Labour Organization Convention Concerning the Minimum Age for Admission to Employment 1973 sets 18 as the minimum age for any employment that is likely to endanger a person’s health, safety or morals and establishes a general minimum age of 15 for employment.[12]
The truth remains that the international community is still some way from agreeing on a universal definition of childhood, and it is at least arguable a to whether such a universal definition is even desirable. There does, however, appear to be a trend emerging in contemporary international law that the rights of the child should be applicable to as many as possible under 18 evidenced by the adoption of recent standards on juvenile justice and by the definition of child in the African Charter on the Right and Welfare of the Child[13]. By linking the international definition of childhood to the national law on majority, the convention attempts to accommodate the existing cultural and religious diversities reflected in national age limits.
Family as a Basis for the Right of the Child
Murdock in his claim that family is a universal phenomenon defines it as:
“The family is a social group characterized by common residence, economic co-operation and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved relationship, and one or more children, own or adopted, of the sexually cohabiting adults”.[14]
In the Australian case of Mehmet V. Mehmet,[15] the court was content to rely, at least in part, upon two nineteenth century English Masters of the Rolls: Romily MR: … the primary meaning of the word “family” is “children”;[16] and Jessel MR, The word “family” has various meanings … in (one) sense, the word includes children only; thus when a man speaks of his wife and family, he means his wife and children. How every word which has more than one meaning has a primary meaning … what then, is the primary meaning of “family”?
Although international treaty law salutes the family as the basic unit upon which society is organized[17] the family is a concept in transitional development. There is an essential dichotomy surrounding the family: it is conceptualized both as a cohesive association of autonomous people and as a group of individuals subject to a higher law which protects competing claims. Unlike the definition of child, international law lacks a treaty definition of family and it would be too simplistic to conclude that part of the problem is that, there is no convention on the Rights of the family. The fundamental issue of definition would still have to be resolved.
According to the Human Rights Committee, the International Covenant on Civil and Political Rights requires that for the purposes of article 17, the term family must be given a broad interpretation to include ‘all of those comprising the family as understood in the society of the state party concerned’[18]. The Human Rights Committee accepts that there is not a simply universally binding definition of family and has invited states to indicate in their reports the meaning given in their societies to the ‘family’. Similarly in the case of Cziffra and Nineteen Mauritius Women the Committee observed that the ‘legal protection or measures that a society can afford to the family may vary from country to country and depend on different social, economic, political or cultural conditions and traditions’.[19] The approach of the Human Rights Committee is based upon the state party’s definition of family. Prudently, the Human Rights Committee does not seek to impose a universal definition of family which would apply to all cultures for all time. There are, however, cultural traditions which are contrary to the child’s best interests. In Cziffra the Committee accepted that the definition was culturally sensitive, but placed limits on its flexibility by requiring that the definition had to be ‘without discrimination’, in other words in accordance with international human rights law. Although the definition is flexible when a group of persons is regarded as a family by domestic legislation it must be given article 23 protection[20].
In the nineteenth century, Auguste Comte proposed what was to become a constant theme in sociology: that the family is primarily instrumented in the conversion of the individual into a social being[21]. This is the process of ‘socialisation’, whereby the individual learns to adjust to the prevailing order, and takes on the norms (standards of conduct in given situations) in his or her set. By being socialized, the individual can predict the likely course of events in most situations because he or she has the appropriate expectations. Socialization is the means whereby individuals learn the ‘culture’ of their society ‘the way of life of its members; the collection of ideas and habits which they learn, share and transmit from generation to generation[22].
According to Van Bueren, two approaches can be ascertained in international law to the triangular relationship of the child, the family/community and the state. The historical approach in Western Countries has been to regard the family as akin to a tiny state in which parents are absolute monarchs[23]. This is illustrated by legislation in Colonial America, where the family was seen as the exclusive institution for the social control of children. In 1646 the Commonwealth of Massachusets enacted, for example, the Stubborn Child Statute, which provided that stubborn or rebellious sons above the age of 15 could be put to death on the complaint of the parents[24]. The second and more contemporary approach is to regard the family as a community of individuals possessing specific rights. This is the approach enshrined in international law.
Historically, international law has sought to safeguard the privacy of the family and has not attempted to regulate the quality of the relationships within the family. Hence the linking of the two concepts of privacy and the family in article 17 of the International Covenant on Civil and Political Rights and of the Privacy and Family life in article 8 of the European Convention on Human Rights. This has led to a policy of minimum intervention, which left the child vulnerable to the abuse of family members. This “hands off” approach is slowly changing, and international law is gradually and reluctantly moving into unfamiliar areas in which effect of a ruling of a human rights tribunal is tantamount to deciding the role of the family in the upbringing of children,[25] although tribunals appear reluctant to acknowledge this openly. In this light, the privacy of the family is no longer sacred. Therefore, in order to protect the rights of the child, human rights fora are now having to consider issues concerning state responsibility balanced against the privacy of individual family members[26]. On the one hand international law respects the privacy of family members, while on the other hand the state is under a duty to intervene where there is a risk that members of the family may be abusing the child. International law is therefore establishing boundaries within which states are under a duty to ensure that parental power is properly exercised and within limits.
The family was acknowledged as the principal instrument for the socialization of the child, but socialization is only slowly beginning to be perceived as a desirable goal if it encourages the teaching of participation skills within the family. This process may be described in rather darker fashion, as being a means of ensuring conformity with norms through the collective control of behaviour, achieved by individuals internalizing such controls through exposure to example and education. It continues throughout one’s life, although attention has been concentrated upon the childhood stage where the process is at its most intensive and the role of the family as a socializing agent is at its most influential. The learning involved in socialization develops the social self, the totality of attitudes that a person makes of him or herself.
The starting point of the process of socialization is the fact that the newborn baby is helpless, being not merely physically dependent upon older people, but lacking necessary behaviour patterns. A child responds to approval or disapproval, and follows parental example. Clearly, care, such as that involved in the availability of adults capable of providing appropriate stimulation, is crucial. Thus, the words of Lord Hailsham L.C in Richards V. Richards[27] to the effect that “the court ought not to continue itself to a consideration of purely material requirements or immediate comforts” would seem to involve an awakening legal cognizance of the sociological view that “To be born into a high socio-economic stratum does not guarantee a propitious child-rearing-milieu. But the physical environment in which the child is brought up will still be influential, with much dependent upon whether the family income is sufficient to generate the proper nourishment, housing, clothing and play space.”
It is worthy to understand that judicial allusions to socialization generally arise only in the case of those few children whose upbringing chances to attract the attention of the court. The primary focus of the law is on that minority of families which suffer formal failure (usually through divorce, more rarely through compulsory care proceedings) and it plays little part in buttressing the functioning family and the parent-child relationship. It is open to question whether, were the state to take more active role in socialization, there would be fewer ‘failed’ families and ‘better’ parenting. However, the importance of socialization to the state has been recognised in so far as education has become primarily the state’s responsibility. The concept of responsibility is particularly important for children as it helps educate others in the potential value of children’s contribution toward society, a potential often overlooked[28].
The African charter on the Rights and Welfare of the Child also provides for the duties of the child towards the family[29]. The African Charter provides that children have a responsibility to work for the cohesion of the family to respect parents and elders at all times and to assist them in cases of needs. These reciprocal rights and responsibilities of the child under the African Charter are seen as an integral part of family life.
Best Interest of the Child
The Declaration of the Rights of the child enshrines the principle that children are entitle ‘special protection’ and that such special protection should be implemented by reference to ‘the best interests of the child’, which shall be the paramount consideration. Thus article 3(1) provides
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.
Although the best interests of the child is common in domestic legislation. It is not expressly incorporated into many major human rights instruments. Within the domestic context the best interests’ standard, at least as it has been applied traditionally, grants broad discretion to the decision maker, thus leading to a lack of uniformity on a domestic level[30] which is multiplied on the international level. This is not surprising. There is a lack of agreement over what constitutes children’s interests, let alone their best interests.
Best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child. Thus the convention challenges the concept that family life is always in the best of interests of children and that parents are always capable of deciding what is in the best interests of children. It has been observed that the traditional use of the best interests’ standard robs individuals of the chance of questioning decisions, as the discretion may be based on unarticulated and unconscious predictions. Any decision taken in the child’s best interests ought to take into account the inherent inability of any legal system, national, regional or international, adequately to supervise not only family relations but all interpersonal relationships, and therefore ought to recognize the difficulty in making long term predictions. The concept of the best interests of the child, however, needs to be more than ‘raw judicial intuition’, as society relies upon law and international society relies upon international law to provide objectivity and an element of predictability.
One observation made about the convention is that it does not refer to their best right but to their best interests, interest arguably being a broader concept and a precondition of rights[31]. Hence best interests within the African Charter also implies that cultural traditions will not be accepted whereby they impede internationally protected rights of children. Nevertheless because a treaty is read as a whole, under the convention the child is given a much greater role in deciding what is in the child’s best interests than in the traditional approach. Because the convention on the Rights of the child is primarily an instrument of international human rights law, it incorporates a rights approach which would be wholly underlined if article 3(1) allowed back in either traditional best approach or an extreme stance of cultural relativism.
The significance of the provisions of article 3 is underlined by the fact that these provisions cannot be the subject of any reservation. This significance is further highlighted in the jurisprudence of domestic courts where, for example, in the United States, a US district court recognized the conventional ‘best interests’ principle as a principle of customary, international law.
Right to Education
The right to education is provided for in the convention on the Right of the child. Article 28 of the United Nations Convention on the Rights of the Child requires states to:
“Recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity…
(a) Make primary education compulsory and available free to all
(b) Encourage the development of different terms of secondary education… make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity;
The first specific global reference to the right of a child to education was enshrined in principle 7 of Declaration of the rights of the child 1959. The child is entitled to receive education. Although the rig ht to education extends to both adults and children, the principle of compulsory education is only applicable to children. It is a principle which implies that it is in the best interests of the child that children are not entitled to refuse education below a specific level. Many children could like to be able to attend compulsory education but because of a combination of factors, including that necessarily to contribute to the family’s basic survival, the distance of rural schools, traditional opposition to the education of girls and the imposition of school fees, they are unable to receive even the minimum of education.
Education has much to contribute to both individual and national development. Education is essential for children because it helps realize their full potential. International law, however, is not exclusively concerned with the child’s right to education, as is made clear by article 26 (1) of the Universal Declaration of Human Rights, “Everyone has the right to education. As far as children are concerned, although they are the principal beneficiaries of education, the focus of international law has been not on the rights of the child but on the right of parents to exert a degree of control over a child’s education. Hence, it is somewhat ironic that the right to education has appeared more frequently in discussions on the international rights of the child than any other right.
To assist states in attaining improvements in the exercise of individuals’ right to education the General Assembly declared 1990 as international literacy year[32]. This reflected the recognition that elimination of illiteracy constitutes a prerequisite for ensuring the right to education, and should be regarded by states as a priority. The motivations for the right of compulsory education was to keep children off the streets and away from crime and disorder. Children were seen as both perpetrators and victims of crime, and the idea of a cycle of deprivation and delinquency is not a twentieth century one. As early as 1535, concern was being expressed at the danger of vagrants’ children growing up knowing nothing other than how to beg[33]. The Tudor Government answer to this problem was a combination of education and punishment; pauper children could be removed from their parents and placed as apprentices or servants so that they could learn a trade or skill which would keep them safe from having to commit crime when they would be punished as severely as adults including suffering the death penalty. Prior to the adoption of the convention on the Right of the child it was only possible to challenge the imposition of specific forms of educational disciplinary measures on the basis that they fell within the general prohibition of torture, cruel, inhuman ad degrading treatment and punishment.
The questions which have not been posed by international human rights tribunals are firstly, decisions concerning the type of education so that education is in conformity with a child’s religions and philosophical convictions, and secondly, which rights, if any, have children under international law if they disagree with their parents’ choice of education.
It is obviously important that parents are given the legal capacity to intervene between the state and the child in order to be able to protect the best interest of the child, but merely because the wishes of the child and the parents frequently coincide does not necessarily imply that the child can never have an independent interest. In the light of the convention on the Rights of the child, and with the snail-slow emerging awareness of human rights of the rights of children to participate in decisions affecting their own lives, this bipartite relationship between the parent and the state has to be re-examined to determine whether the state is under any form of international legal duty to consider the wishes of the child to be educated in accordance with the child’s convictions.
The view which originally prevailed is reflected in article 26(3) of the Universal Declaration on Human Rights, ‘parents have a prior right to choose the kind of education that should be given to their children’. Parents are given this prior right because it was assumed that the interests of the child and of the parents would connate, so that there was no need to consider the separate wishes of the child. In the case of the Rights of Minorities in Upper Silesia, the permanent court of International Justice, the German Government argued that the decisions as to which school a child attends ‘depends solely upon the parents wishes’ irrespective even of the language spoken by the child. Article 13 of the International Covenant on economic, Social and Cultural Rights illustrate this approach, placing states parties under a duty to,
“Have respect for the liberty of parents and when applicable, legal guardians to choose their children schools other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the state and to ensure the religions and moral education of their children in conformity with their convictions.
It is worth noting that the convention on the Rights of the child does not contain a provision respecting the parents’ right to have their children’s education in conformity with the parents’ convictions. This was felt inappropriate for a treaty on the right s of the child.
Conclusion
The concept that children possess rights is viewed by some as a radical notion and denied by others. The denial is partly based on the belief that if children are acknowledged as rights-holders, they will cause conflict of interest, particularly within the family. Violation of children’s rights occurs on other levels which sometimes prove more difficult to identify. A failure to perceive children as separate human beings has led to breachs of their rights where actions are purportedly taken in the genuine belief that they are in the best interests of the child. Denials of the entitlement s of children do not stem from a lack of love, but from the lack of emotional maturity needed to see the child as a separate person. Hence the central issue is not one of law, but of respect, and of recognition that children as human beings are entitled not only to care and protection, but also to participate in decisions involving their own destinies to greater extent that is generally recognized.
C.T. Emejuru LL.M, M.Phil, Lecturer, Faculty of Law, Rivers State University of Science & Technology Port Harcourt.
F.C. Amadi, LL.M, Lecturer, Faculty of Law Rivers State University of Science & Technology, Port Harcourt.
[1] Foster S. (2008) Human Rights and Civil Liberties, London, Pearson, 10
[2] See Steiner and Alston (2007). International Human Rights in Context: Law, Politics, Morals, Oxford University Press, 3rd ed. 6.
[3] Van Bueren G. (1995). The International Law on the Rights of the child, Dordrecht, Martinus Nijhoff Publishers, 32
[4] Ibid 33
[5] See Enoch (1833) 5 C. and P. 539
[6] Ghandhi S. (2008). Blackstone’s International Human Rights, Oxford University Press, 96 Article 1 Convention on the Rights of the Child 1989.
[7] Van Bueren opcit 34
[8] See Baby boy case, Inter-American Commission on Human Rights Res. No. 23/81 Case 2141 (USA) March 1, 1981. where a majority judgment of the Inter-American Commission on Human Rights concluded that American Declaration of the Rights and duties of man allows each state to determine in accordance with the own domestic law the point at which life begins and the point at which the state believes it is necessary to provide protection.
[9] See Application No. 6959/75 Art 2(1) of the European Convention on Human Rights
[10] Although see Recommendation 874 (1979) of the parliamentary Assembly on a European Charter on the Rights of the Child which provides for ‘the right of every child to life from the moment of conception’.
[11] See Section 277, Child’s Right Act (2003), Cap C. 30 Laws of the Federation 2004.
[12] It permits states parties whose economies and educational facilities are insufficiently developed to set the lower age of 14 in international Humanitarian law that is special protection and assistance for those under 7. There is a prohibition on military recruitment of those under 15 in art 38(3) Conventions on Rights of the Child and in the two Additional Protocols to the Geneva Convention.
[13] Thus reflecting the preamble to the Convention on the Rights of the Child which recognizes that states should be:
“Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.”
[14] Murdock G.P. (1965) Social Structure, Collier-Macmillan, 1
[15] (1987)( FLC 91 - 801
[16] Re Terry’s will (1854) 19 Beav 580, 581
[17] See for example Art. 10 International Covenant on Economic, Social and Cultural Rights 1966, Art. 23(1) International Covenant on Civil and Political Rights 1966
[18] UN Doc A/36/40, 134-143.
[19] Ghandi and McNamee, (1991). ‘The Family in UK Law and the International Covenant on Civil and Political Rights 1986’ 5 Int Jo Law & Fam 104.
[20] General Comment on Article 23 UN Doc HRI/Gen/I
[21] Barton, C. and Douglas, G. (1996) Law and Parenthood, London, Butterworths, 11
[22] Lington, R. (Ed) (1945). “Present Conditions in Cultural Perspective” in the Science of Man in World Crisis, 203.
[23] Van Bueren, opcit, 72
[24] During the nineteenth century Connecticut, Massachusets and Pennyslvania rejected English common law and created a system of family law based upon Puritan Religious beliefs about how families were to be ordered and authority distributed.
[25] See for example comments of the European Court of Human Rights on the exercise of material rights in Nielsen V. Denmark
[26] See generally Lillich, (1981). The Family in International Law; Douglas, (1988). “The family and the State Under the European Convention on Human Rights; 2 Int Jo Law 8 Fam, 76.
[27] (1984) AC 174, 205
[28] Van Bueren, (1991) ‘A New Children’s Treaty, The African Charter on the Rights and Welfare of the Child, in International Children Rights Monitor.
[29] See also Art. 11(2) of the American Convention on Human Rights.
[30] See in relation to the United States of America, ‘The Best Interest Doctrine: Its Application in Divorce, Modification and Non-Parental Custody Disputes which Surveys Case Law and the different application of best interest; 8 J. Juv. L. 184 (1984)
[31] See Kleining, (1978) Crime and the Concept of Harm, who analyses the different meanings of interest 28
[32] Proclaimed on 7 December 1987
[33] Pinchbeck I. and Hewitt M., (1969). |. Children in English Society, vol.1, 95