Social Imaginaries and Children’s Rights
The United Nations Convention on the Rights of the Child (“CRC” or “the Convention”) is the global community’s agreed vision for its children. It establishes a set of values and norms, agreed by the world’s governments over a quarter of a century ago to inform laws and guide State action and social attitudes. It is a key expression of global states’ conception of childhood and one that has been influential, to varying degrees, in shaping wider social imaginaries in the member states of the United Nations.
The Convention was adopted by the United Nations (“UN”) General Assembly in 1989 after 10 years of negotiation between the world’s governments (42 of whom participated in the drafting Working Group). Within its text, education features prominently not just in two dedicated provisions (Articles 28 and 29) but also through references to education for particular groups of children (such as children with disabilities and those in detention) and to specific topics to be included in education (health and drug education). Given that its standards have been endorsed in law by 196 member states of the UN (in fact, all members bar the USA), the Convention is a high profile and comprehensive statement of the world’s aspirations for its children and their education.
A Contested Yet Powerful Global Vision for Children
The Convention is the first legally binding human rights treaty that provides bespoke rights for children. However, it is not the first articulation of them internationally. Its forerunners, the Geneva Declaration (1924) and Universal Declaration on the Rights of the Child (1959), were conceived and endorsed as part of the global response to the suffering of many children in the wake of the two world wars. The 1924 Declaration, promoted by Eglantyne Jebb, the founder of Save the Children, reflects a construction of childhood that is particular to the social and political context of the time, with its overriding concern for children’s welfare and protection. Its text, well intentioned but profoundly paternalistic, states: “The child that is hungry must be fed, the child that is sick must be nursed, the child that is backward must be helped, the delinquent child must be reclaimed, and the orphan and the waif must be sheltered and succoured.” The 1959 Declaration modernized the terminology on childhood and extended the agreed aspirations for children to include matters such as the child’s right to an identity, but it did not go so far as to afford children the autonomy rights that characterize human rights instruments for other protected groups. Nor at that stage was the UN prepared to move beyond a non-binding declaration and embed its promises into a legally recognized human rights treaty.
While the CRC is the most widely and rapidly ratified international human rights treaty, its path to adoption as a legally binding human rights instrument by the UN General Assembly in 1989 was neither easy nor fast. Much of that delay can be attributed to the discussion, theoretical and practical, about the existence or extent of children’s rights to autonomy and in particular to participate in the decision-making that impacts on their lives. It was not until the late 1970s, prompted by the work of the child “liberationists” (in particular John Holt and Richard Farson) and aligning with the feminist movement for equality, that the demand for children to be acknowledged as independent rights holders began to gain ground. This relatively tardy path to recognition in international human rights law (a Convention for women was agreed two decades previously) was in large part due to an ongoing debate about what rights entail as well as who can have or exercise them. This discussion is fraught often but perhaps no more so than in relation to children (see Tobin 2013). The resistance is often linked to perceived inadequacies in children’s capacity to make rational decisions in their own lives and therefore in their ability to “claim” or exercise their rights (Archard 2014), a position that has been evolving both in law (e.g., the landmark Gillick decision in the UK) and in the scholarship that emerged from a new sociology of childhood scholars (such as Jens Qvortrup and Allison James). Legal theorists have debated and discussed the nature of rights for decades, choosing children and their perceived lack of capacity as a “test case” for rights more generally (MacCormick 1976).
The drafting of the CRC provided an opportunity for the world’s governments to discuss, describe, and ultimately determine its position is this contested debate, not only providing a collective vision of a world in which children thrive and develop but also defining children’s own role and entitlement to influence those processes. Its predecessors had gone some way in paving the road for children to be recognized as rights holders. However, the vision that they offered was one of protection and welfare rather than autonomy and capacity for self-determination. During drafting, discussion of the latter continued to be contentious, often because of the perception that affording these rights to children would impinge on the authority of parents, a particular concern in the USA and the main reason it has not yet ratified the CRC. For the treaty to be adopted by the UN, the draft had to be accepted unanimously so the product, while having global endorsement, is the inevitable result of significant political negotiation.
Compromises were reached so that the diverse states of the UN were able to find a consensus on the conditions of childhood that they could live with and embrace collectively. The end product covers all of the key socioeconomic rights (education, health, and an adequate standard of living) as well as civil and political rights (to identity, expression, association, and conscience). It places an obligation on states to protect children from abuse, neglect, and economic and sexual exploitation and includes protections for particularly vulnerable groups of children including children with disabilities, children in detention, and child soldiers. Even so, it has been described as “a beginning but only a beginning” given a series of gaps in coverage, including its neglect of citizenship rights as well as the needs of gay and lesbian young people and adequate provision for children with disabilities (Freeman 2000).
Although the Convention is open to a dynamic and evolving interpretation, it is a vision that has been articulated for (some would argue imposed upon) one group (children) by another (adults). While this is arguably the case for all human rights treaties (they are negotiated and agreed by political elites and powerful advocacy groups), one of the most cogent challenges to the notion of the CRC as a global social imaginary is the fact that children had almost no input into defining these values and norms, leading Freeman to observe that there is “not a little irony in having a Convention which emphasises participatory rights (in Article 12) whilst foreclosing the participation of children in the formulation of the rights encoded” (2000, p. 282). Children may agree with much of what adults have chosen for them but still have their own views on the content, style, and interpretation of it. Had they been involved in contributing to the global, legal statement of the imagined ideal states of childhood it is likely that it would have been expressed differently, with matters such as the right to play or to vote in elections being given greater priority or included respectively (Lundy et al. 2015).
Others argue that what has been included represents a Western vision of childhood and one that has been imposed on other countries, particularly the global south. This is a criticism of human rights standards more generally and those who defend the universality of the values expressed draw on the engagement of many diverse countries in drafting and the fact of ratification, albeit that many countries ratify subject to sweeping reservations (e.g., that they will comply only so far as that is compatible with Sharia law). In contrast, it has been suggested that most States have accepted the universalism of the standards but blame poor progress in implementation on the disconnect between the attitudes of the government and the values of the people. Harris-Short (2003, pp. 176–177) argues that, if international human rights are to be effective, the individual and his or her culture, beliefs, and values must become constitutive of international human rights law and international society as a whole: “the whole system must undergo a fundamental transition from a society of states to a society of humankind.” This approach has links to a further body of thinking on “living rights” for children, that is, the rights that are shaped and crafted by children themselves (Hanson and Nieuwenhuys 2012).
The ongoing plight of many of the world’s children also belies the notion that the CRC has in fact been globally endorsed. Child deaths, exploitation, hunger, and illiteracy exist in all societies and are prevalent in many in spite of the global aspirations. King, drawing on autopoietic theory, suggests that those who endorse the Convention have been carried away on “a magic carpet’ of excessive optimism” (1994, p. 385). Blame is attributed to the fact that it is not “real law,” given its nontraditional and arguably weak enforcement mechanisms. In response, it can be argued that it is important that this type of global imaginary exists even if it is incomplete, not fully embraced, and/or limited in terms of its implementation and enforcement. It is, in many respects, an imaginary in the making. Even recalcitrant States, those who have ratified the CRC without being persuaded by its values, can over time be prompted by the international peer pressure and ultimately acculturated to it is norms (Lundy 2012). Social attitudes too can follow suit with public attitudes (e.g., to corporal punishment or child labor) shifting in line with the implementation in law of these global norms. Freeman (2000) argues that its existence in law is important since law is an important symbol of legitimacy – an accomplished fact – which is difficult to resist. Moreover, a focus on what remains to be done, considerable though those challenges are, can obscure its many achievements, not least its incorporation into domestic law and policy in many countries (Lundy et al. 2013).
Global Norms for Education: Balancing Pragmatism with Idealism
Education rights have been a consistent feature of international human rights law. Although education is not a right that is exclusive to children, it is one enjoyed mainly by them and one that is recognized as crucial to their development and ability to enjoy their other rights. The CRC, in articulating bespoke rights for those under the age of 18, thus provided a fresh platform on which to build on the agreed global aspirations for education with a specific focus on children. In doing so, it emerged that one article was insufficient to capture all aspects of this particular articulation of global governments’ imaginary for children with the result that the drafters chose to expound it in two lengthy provisions: Article 28 focuses primarily on issues of access to education, while Article 29 addresses the aims of education.
Article 28, in addition to reiterating rights of access to primary, secondary, vocational, and higher education, includes new provisions requiring discipline to be administered with dignity and for States to take measures to promote regular school attendance. Although there is a requirement to implement the rights progressively (that is, striving for continuous improvement), Article 28 in particular contains several qualifications and limitations that reflect the actual rather than the ideal situation in many of the signatory States. Only primary education has to be free. States are obliged to “encourage” secondary and vocational education and to “take appropriate measures” which include the introduction of free education and offering financial assistance in case of need. In this instance, the imaginary is far from the collective notion of the ideal and indeed the actual experience of many children.
Article 29, in contrast, includes a very broad and ambitious account of the goals of education, addressing many current national and transnational dilemmas. Article 29 defines the aims of education to include quality education as well as tolerance, equality, and respect for human rights. Notably, it expands the aims of education in Article 13 of the International Covenant on Economic Social and Cultural Rights to include two entirely new themes: one on respect for identity and culture (29 (1)(c)) and the other on respect for the natural environment (29(1)(e)). For example, it requires education to be directed to “the national values of the country in which the child is living, the country from which he or she may originate, and civilizations different from his or her own” as well as the “preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups, and persons of indigenous origin.”
The Convention also recognizes that the aims of education are not just delivered through what the child is taught in the curriculum but how the child is treated in the classroom and beyond. Addressing children’s rights “in” education is considered to be crucial if the aims of education are to be learnt through experience. The Committee has emphasized that students do not lose their rights when they pass through the school gate: children should enjoy their civil rights to freedom of conscience, privacy, and expression as well as protection from abuse and neglect and cruel, inhuman, and degrading treatment. Moreover, all of this must be provided without discrimination and must give his or her views due weight; and his or her best interests must be a primary consideration in all decisions affecting him or her. As such, the Committee has stated that Article 29 has “a qualitative dimension which reflects the rights and inherent dignity of the child; it also insists upon the need for education to be child-centred, child-friendly and empowering, and it highlights the need for educational processes to be based upon the very principles it enunciates” (UN Committee on the Rights of the Child 2001, para. 2).
Several of its provisions underscore the vision of child-centered education. Of most relevance in this context is Article 12, one of the most widely cited but misunderstood provisions of the CRC (Lundy 2007). Crucially, it recognizes that children are not just able to express their views but that they are entitled to do so in all matters affecting them. Not only does Article 12 establish the entitlement of students to be heard but, when read along with other key provisions of the CRC, it defines how this should be operationalized. In particular, it places emphasis on the obligation of duty-bearers (including educationalists) to ensure that children’s engagement is in itself rights-respecting. Unlike adults who also have a right to freedom of expression, children are also entitled to have their views taken seriously. At the heart of the human rights agenda is the desire to ensure that the State (and its agents) do not exercise power in a way that undermines a person’s right to be treated with dignity and equality. Ensuring that those who do not hold power may nonetheless exert influence on their own lives is one important dimension of this.
In spite of the global vision articulated in the CRC and some evidence that its standards are influencing law, policy, and practice in education (Lundy 2012), there is no country in which all children receive acceptable education in safety and security, with equal access to good-quality teaching and learning and in an atmosphere which respects their identity, culture, and values. Moreover, there are some groups of children (e.g., those in detention, children with disabilities, and many indigenous children) who experience fundamental and persistent disadvantage and some contexts (such as conflict, forced migration, and extreme poverty) which pose significant challenges for implementation. However, the fact that global consensus was achieved on education rights in the CRC at all is notable given the scale of the challenge and the diversity of the nations and cultures that embraced it. While States are afforded considerable discretion as to how they respond to implementing education rights in practice, the existence of a worldwide accord on the need for and content of children’s rights and education is important in and of itself, irrespective of patchy, unsatisfactory, or reluctant implementation. Much progress has been made in education through rights-based advocacy and monitoring and it appears that there continues to be a high degree of continuing support for education rights not just among NGOs but also the world’s governments.
The UNCRC is an important global conception of what constitutes a desirable society for children. The views and experiences of the societies in which it has been implemented (to varying degrees) do not always align with its articulation of a desirable childhood but they have undoubtedly been impacted by it. Moreover a question arises as to whether the vision agreed 25 years ago and articulated in the Convention on the Rights of the Child, remains appropriate and/or will endure. It has been suggested that the CRC has failed to keep pace with recent developments in children’s lives such as the use of new technologies and increased use of drugs and alcohol. However, if the social imaginary changes, as it already has and will undoubtedly continue to do, experience suggests that the CRC may be flexible enough to adapt and cope. It is a living instrument, one that is currently embracing practices (such as the use of social media and cyber-bullying) that were barely envisaged a quarter of a century ago. Moreover, part of its enduring strength rests in its connections with and capacity to bolster other movements and imaginaries, for example, the case for inclusionary practices in schools or the student voice movement. These may have developed independently but they draw frequently on the perceived additional legal and moral imperative as well as the global reach of the CRC to define their terms and practices. The Convention will, for the foreseeable future, continue to be a concrete, if incomplete and contested, expression of the world’s aspiration for its children, shaping law and policy as well as influencing social attitudes.
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