Mme. Claire Brisset, Ombudsperson for Children of the French Republic – Children’s Rights
Children have rights. For us today to say that is to state the obvious. However, the history of their rights is a very recent one which is less than a hundred years old. It is also a history which has not yet achieved all its objectives.
I – History
The history of children’s rights begins with Janusz Korczak in Poland. He was a paediatrician who was seen as subversive because he dared to speak of love and respect. His book “How to love a child” (1914) brought him both celebrity and some very solid opposition. He wrote, ” Instead of allowing them to judge for themselves, we impose a blind respect for age and experience upon them. We have the audacity to accuse them of our own faults.” And of adults he didn’t hesitate to say, “it’s you who create the fertile ground for revolution.” His most important work is moreover called, “The Child’s Right to Respect.”
Was he really listened to from the inter-war period onwards? It is difficult to say. Perhaps. In any case the young League of Nations, which came into being as a result of the first mass suicide of the 20th century, the 1914-1918 war, did create a Committee for Child Protection in 1919, which for the very first time called state sovereignty into question on the issue of children’s rights. More was needed and in 1924 the League of Nations drew up the “Geneva Declaration,” the first far off attempt at what would one day become the Convention (on the Rights of the Child). Korczak criticised this text, the fact that it encouraged rather than obliged member states. In other words, inspired by a holy anger, he asked the international community to go much further and draw up a treaty.
Everything sank with the Second World War, or at least it seemed to. Korczak was imprisoned in the Warsaw ghetto with the two hundred Jewish orphans he was trying to protect. Before allowing himself to be willingly taken by the nazis to the gas chamber in Treblinka, he wrote in his diary, “Is the world in a spiral of continually increasing evil, or is it going ever upwards and onwards, amidst those who fall, in pursuit of an ideal?”
Europe awoke in 1945, in ruins. Yet despite the genocide, despite the massacres, children’s rights were not forgotten and in the Universal Declaration of Human Rights of 1948. We can read the following somewhat timid phrase, “All pregnant women and all children have the right to special care and attention.” But this was at the level of a declaration only and remained so until 1959 when the United Nations General Assembly unanimously adopted a “Declaration of Children’s Rights”. This once again took up the principles of the declaration of the League of Nations and stated, “humanity owes children the best it can offer.” It then listed a dozen fundamental rights that would later provide the framework for the Convention.
One essential aspect was of course lacking, that of obligation. No one was obliged to change their domestic laws. For that we have to wait.
Meanwhile, from 1946, the United Nations had created UNICEF, which at that time was responsible for attending to the basic needs of children, their survival and protection. But children’s rights still had no legal basis. In 1976, the United Nations decided that 1979, 20 years after the promulgation of the Declaration on children’s rights, would be the International Year of the Child.
1979 was a decisive year. It was a year when events seemed to move very fast. What happened in that year? The Vietnam War had been over for four years, but it had metastasised into the neighbouring country. A lead weight fell down onto Cambodia and what was referred to as “a particular form of Asian communism” flourished.
It was in 1979 that this horror was discovered. The Vietnamese army went into Cambodia, and the world discovered that the third genocide of the century, after those of the Armenians and of the Jews, had been taking place for four years. Hundreds of thousands of children and adults were exterminated and a people of the living dead, of survivors inhabited Cambodia. One third of the population died. There is no doubt that this trauma played its part in the growing awareness of children’s rights. Poland did not forget its own past or Korzcak, and asked the UN to begin work on a real convention, an international treaty which would at last give life to children’s rights.
1979-1989 – Ten years, this is how long it took the United Nations to draw up such a treaty. It seemed both a short and a long time. A long time because there was an urgent need for the treaty. A short time because the political and cultural concepts surrounding the area of children’s rights differed enormously.
To give some examples of these difficulties: what is the definition of a child, from what age until what age, fourteen, fifteen, 21 years? These questions explain the compromise: any human being under the age of eighteen except in countries where the age of maturity is fixed at a lower age.
From what age can a child carry arms, 15 years, 18 years? The Geneva Convention put the limit at 18 years. Was there going to be a guaranteed age limit of 15 years- lower than in the Geneva Convention? There have since been additional protocols.
What freedom of religion, of thought, of conscience should be mentioned in the text?
1989 – Despite all these stumbling blocks, the convention was completed and the UN General Assembly unanimously adopted it on November 20. It entered into force less than a year later on 20 September 1990, after being ratified by 20 member states. Ten days later, on the September 30, 1990, a summit of heads of state meeting in the same place gave it formal consecration. Today, it has been ratified by all the states in the world with two exceptions: The United States of America and Somalia. Why?
II – The basic provisions of the convention
I would like to:
– Underline particular points.
– Remind you about those issues which still today remain problematic.
– Ask a few questions.
1 – The right to a name and nationality (article 7)
It is not easy to spontaneously decide what is the first right of a child. Is it to be fed, cared for, educated? Of course the convention does insist on these essential rights at some length, but the one it places just after the “inherent right to life”, which is more of a principle, is not of the same order. The right the convention puts in first place is none other than the right to live in human society, which is to say the right to have an identity, a name, a nationality.
Of course such a right seems to be self-evident. And yet…in today’s world more than 40 million children who are born each year are not declared, recognised or registered. For the whole of their lives they will not have proper papers and most of them will not be able to officially either go to school, or receive medical treatment, nor later get married, take out loans or emigrate to another country etc.
2 – The right to education
This chapter of the Convention does not only cover the right to go to school – which more than 100 million children are today deprived of, of whom two thirds are girls.
The Convention sets out a much broader right to education. It deals not only with the quantitative dimension of schooling (education is compulsory for all children), but also with the qualitative dimension of education, its style and even quite explicitly sets out its responsibility to encourage the development of the child’s full potential. This is clearly stated in articles 28 and 29, which ask that schools “develop the child’s personality and talents” with the reminder “to ensure that school discipline is administered in a manner consistent with the child’s human dignity.”
Such concepts continue to help our thinking today at a time when the debate about the role of school is not a clear-cut one. Is school the place where knowledge is transmitted (where values and not only knowledge are transmitted) or is it the place where children and adolescents can receive education that is based on a much broader understanding?
3 – The best interests of the child
A lot has been written about this cardinal notion of the Convention. Leaving to one side its strange formulation in French (“best interests” is rendered in article 3 of the Convention in French as “supérieur” which begs the question superior to what?), this notion does point out one thing quite clearly to us. In their definition of the legal rights of the child, those who drafted the text have set out not only individual violations but also collective violations of children’s rights, and this is one area where this text is highly original.
For example, it mentions both wars and armed conflicts which have a bloody effect across our planet and individual forms of violence, violence within the family, sexual or other forms of violence.
When the text stigmatises “traditional practices which prejudice children’s health,” it seeks not only the protection of an individual child but it also seeks the much-needed change in the law in those countries where they are practised (female circumcision).
This is also true about what the Convention says about work and exploitation or sexual violence in whatever forms these may take. Each time this double requirement is reiterated: that the child’s rights be respected both individually and collectively.
4 – Freedom of expression, of opinion, of “thought”
The Convention states that any child “capable of forming his or her own views ” (art 12) should be able to voice their opinion on any matter of direct concern to them, and that this opinion should be “given due weight in accordance with the age and maturity of the child” (art 12).
This really is a subversive article. But there is more, for the Convention states as a logical follow up to this that every child has the right to “freedom of thought, conscience and religion.” (art 14)
Of course, the drafters have been careful as they immediately add that this freedom must respect the freedom of the parents to “guide” their child in how they may exercise this right. The Convention also states that religious freedom can be subject to limitations “prescribed by law.” (art 14)
Despite this careful use of language, we can see how essential it is that this fundamental freedom, that of thought, should be enshrined in law for the first time.
5 – The rights and prerogatives of parents
Contrary to a number of hasty interpretations of the Convention which have been made over the past decade and more, the Convention in no way tears up the rights and prerogatives of parents. These rights are reaffirmed in many of the articles, particularly regarding the “common responsibility” of both parents concerning the upbringing and development of children (art 18) and the responsibility of the State to help them in this task.
From the preamble onwards, the Convention restates the primordial role of the family for the development of the child. The family is referred to as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children.”
Nevertheless this article remains the cause of some concerns and is the root, among others, of some opposition to the Convention, particularly in the United States of America.
III – Today – the story continues
Fifteen years after the Convention came into force, has it really changed the way the world thinks about its own children?
Pessimists would say no, because war continues to hit populations in Africa, the Middle East and elsewhere head-on, and children everywhere are the first victims. Malnutrition continues to affect nearly 200 million children and forms the basis for deadly infectious diseases.
In today’s world, 10% of children do not reach their fifth birthday in the countries of the South, whereas in the countries of the North there are fewer than 10 deaths per 1,000 before the age of five. Finally, access to education is very meagre for girls, who are more likely to be exploited at work, suffer sexual violence, be deprived of their basic rights and who die at a much higher rate than their brothers before their fifth birthday.
These are only some examples. Nevertheless the Convention has begun to radically change some fundamental ways of looking at things. The way of looking at the injustice between the countries of the North and the countries of the South, an injustice which children themselves are particularly concerned about. The perception that violence is unacceptable, in the North and in the South and within the family.
Victor Hugo wrote of Gavroche “his parents threw him into life with a kick.” He was a forerunner. While violence towards children is deeply anchored, the patriarchal or proprietorial ways of viewing children no longer go unchallenged. We now see children as having rights.
The road ahead is a long one. There is a way to go before we can reply to Victor Hugo when he asked in “Contemplations”:
“Where do they go all these children, of whom not a single one smiles?”
I will close with some radical questions:
Are children our equals?
In other words, are we willing to give up some of our own sovereignty for them?
Are we ready to undertake the difficult exercise of guiding them and setting them limits at the same time as respecting them fully as individuals and as human beings who have rights?
Are we at long last ready to look at adolescents as individuals? The Convention defines children as being between the ages of 0 and 18 years.
We know that the rights of the child and how they are exercised are not the same according to children’s ages. Have we actually begun the work to individualise the rights of children? This is a huge question, to which for the moment there is no reply.