Protecting children is one of the chief aims of international human rights law (IHRL) today. And rightly so. With children routinely being trafficked for commercial sex, millions living in institutions or on the streets, and others falling prey to ritual sacrifice in Uganda, the international community is absolutely right to focus on protecting children.
But the primary way in which IHRL seeks to protect children is actually undermining the very objective which it purports to uphold. IHRL seeks to protect children through a rights-based framework. This is accomplished through the Convention on the Rights of the Child (CRC), a U.N.-sponsored treaty that effectively serves as a “children’s bill of rights.” And who doesn’t love “rights”? They sound great, and what harm could come from giving a group of people more rights?
Quite a bit, actually. Lynne Marie Kohm, Dean and Professor of Regent Law, persuasively argues in her article, Suffer the Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. Int’l. L. Rev. 57 (Summer 2009), that the entire idea of a “rights-based framework” for children has been devastating. Rather than protecting children by imposing duties on adults and using the traditional “best interests” standard, a rights-based framework treats children as capacitated individuals, effectively imposing on children the impossible duty to be their own advocate. A rights-based framework also separates children from their caregivers, especially when corresponding duties are not imposed on them. As Dean Kohm states, “Children are protected only when adults have a duty to provide that protection, rather than cloaking children with the right to do so themselves.”
A recent example of the destructive effects of a rights-based framework is seen in the recent controversy surrounding the Bodnarius, the Norwegian family whose five children were taken by the state child welfare agency, the Barnevernet, because of “Christian indoctrination.”
Apparently the Barnevernet first seized the older two children from school without the parents’ knowledge or consent. The agency then went to the Bodnarius’ home, took their two boys, and arrested the wife, who was taken to the police station for interrogation along with her baby. Officials also arrested the husband at his work and took him to the police station. After several hours, the Bodnarius were allowed to leave with their baby, but not with their other children. The next day, the Barnevernet returned to the Bodnarius’ home and seized the baby as well.
If this sounds more like the Soviet Union than a western democracy to you, you’re not alone. How could such draconian measures be taken in the 21st century, especially with an international treaty dedicated to protecting children? Unfortunately, this situation is a natural outflow of the CRC’s rights-based framework. Under the CRC, articles 13 and 14, children are granted the right to free expression and freedom of thought, conscience, and religion. And while the CRC references the “rights and duties” of parents, it does so only in connection with “provid[ing] direction to the child in the exercise of his or her own rights ... .” Thus, the CRC effectively pits parents against their own children, requiring parents to facilitate their children’s “rights” while ignoring their own convictions and obligations.
Instead of strengthening the bond between parent and child, a rights-based framework separates them. And while the “separation” may often just be metaphysical, in the case of the Bodnarius, it was physical—and potentially permanent. Despite its popularity, it is high time to revisit the CRC and the use of a rights-based framework to protect children.
S. Ernie Walton is Administrative Director of the Center for Global Justice, Human Rights, and the Rule of Law. Ernie also serves as a member of Regent Law’s adjunct faculty teaching International Law and National Security Law.