Research proposal: “Understanding Children’s Rights”
By Marieke J. Hopman
Contents
Introduction
0.The ground level, or foundation: this level will build up the theoretical and methodological framework for the research
0.1Levels of law: epistemological framework
0.2Methodology for socio-legal field research on children’s rights
1.Children’s rights in practice: field research
Case study 1: The child’s right to education (art. 28, 29 CRC) in the Central African Republic and the Netherlands
Case study 2: The best interest of the child (art. 3 CRC) in the Turkish Republic of Northern Cyprus (TRNC) and the Netherlands
Case study 3: The right to be protected against sexual exploitation in the United States: Massachusetts and the Netherlands
2.The second level, or overarching level: a more general philosophical/legal reflection on the socio-legal position of the child in the international legal community
2.1Literature review: the socio-legal position of the child in the international legal community
2.2A philosophical analysis of the three case studies
3. Expected results
Literature
Introduction
Although we only recently celebrated the 25th anniversary of the 1989 UN Convention on the Rights of the Child (hereafter CRC), it seems that the need for legal protection of children is one of the few things that generate an extremely high level of consensus in the international legal community. At the same time, however, children’s rights are grossly violated on a daily basis andon a global scale. In fact, despite the popularity of the human rights and children’s rights discourse, UNICEF director Anthony Lake argued that in 2014 ‘Children have been killed while studying in the classroom and while sleeping in their beds; they have been orphaned, kidnapped, tortured, recruited, raped and even sold as slaves. Never in recent memory have so many children been subjected to such unspeakable brutality’.[1] It seems therefore that there is no legal domain in which the discrepancy between formal law and social reality is as great as when it comes to children’s rights.
How can this be?Maybe we are asking the wrong question.[2] The working hypothesis of the proposed research is that to understand children’s rights, we have to analyze the socio-legal position of the child within the international legal community, specifically moving beyond the de jure / de facto distinction. To this purpose, it will start by creating a new epistemological framework and a corresponding (qualitative) research methodology to research children's rights.
Children’s rights researchers argue that one of the most immediate needs in the research field is the need of conceptual and analytical instruments for the understanding of children’s rights.[3] Children find themselves in an interesting socio-legal position; they are often positioned as a kind of possession of the parent, even though they have individual rights. They are positioned as citizens of the state, even though they have never contracted. They are sometimes positioned as active agents, sometimes as passive objects. The fact that the CRC has been ratified by 190 UN countries[4], however, seems to imply that there is a universal consensus on the position of the child in the international legal community; namely, a young person who has a need of special protection, participation and provision rights.[5]
The proposed research is an interdisciplinary research, combining philosophy, law and sociology in trying to understand children’s rights. The proposed research will consist of three interconnected parts:
- The ground level, or foundation: this level will build up the theoretical and methodological framework for the research
- The first level, or the level of the legal field: this level will consist of three case studies, cases related to the CRC, which will be subjected to field research and legal research
- The second level, or overarching level: this level will include a more general philosophical/legal reflection on children’s rights in the light of the international community
Ultimately, the aim of the research is to create a new understanding of children’s rights which opens up (possibilities for) social transformation.
0.The ground level, or foundation: this level will build up the theoretical and methodological framework for the research
At the ground level of the proposed research I want to look into possible new analytical and conceptual instruments for understanding children’s rights, posing a theoretical framework consisting of the following elements:
0.1Levels of law: epistemological framework
To understand the position of the child in the international legal community, understanding law as (any kind of) formal law that addresses citizens seems to be a too limited perspective. To say that children have a de jure right to education, though they are not de facto educated, leaves us with limited understanding of the actual socio-legal situation of the child whose right is violated. I intend to argue that there is in fact a legal distinction between a situation in which a child has a formal right to education but is deprived of education by a government whose unwritten policy is to prevent, say, Muslim children from entering the school, and a situation in which a child has a formal right to education but is deprived of education because armed conflict has rendered going to school unsafe.
In many countries formal laws related to children are in perfect harmony with the CRC and other international treaties, and yet discrepancies between formal law and government policy are common. The government (in some cases) actively pursues a different policy than is written down in formal law – and this is publicly well-known, including the consequences of transgressing this “unwritten law” (as is the case with the example of the Muslim child). In this situation, the “formal law” turns into a meaningless piece of paper, a useful tool for avoiding interference by the international community. In some situations, the government pursuing a different policy than dictated by the formal law is not publicly known – such as, for example, the secret military recruitment and training of homeless children. In this case, this is the level of hidden power. This threefold distinction (formal written law, law for the community and non-public law) can serve as a starting point for a framework which can be used to understand the position of the child in the international legal community.
0.2Methodology for socio-legal field research on children’s rights
To research the socio-legal framework in which the child is positioned, in relation to a specific legal (children’s) right in a specific legal order, a qualitative research methodology is required. Especially in the light of the aforementioned epistemological framework that aims to go beyond the formal law/social reality dichotomy, qualitative field research is a precondition for understanding the position of the child in relation to a specific right, in a specific cultural context.
I propose to combine literature research, legal research and field research. For the field research I intend to use the academic method of concept mapping, as described by Trochim (1989), Petrucci & Quinlan (2007) and Kinchin et al. (2010): a ‘mixed-methods strategy that captures the rich conceptual data from communities of interest on a particular question or topic’,[6]combined with Socratic dialogue.[7] This method of concept mapping is used in different academic disciplines, mostly in social sciences, but rarely in legal research.[8] The method can be used to discuss the meaning of certain concepts with relevant parties (in this case: children, adults, professionals working with children, actors from the socio-legal field such as NGO employees and children’s rights lawyers, and government officials).
The idea is to place the individual in its current socio-political situation; to look for both what the law actually is in relation to children’s rights, according to the respondent, at this moment in this situation (the “actual-ought”) and what people think it should be (the “should-ought”).
1.Children’s rights in practice: field research
As explained above, the intention of the proposed research is to study the position of the child within the legal order on different levels. Taking that law is not just something you can understand by studying law books and jurisprudence, but granting that law is more complex and has to be understood in relation to social reality and locality, the research will include three case studies:
1.1Case study 1: The child’s right to education (art. 28, 29 CRC) in the Central African Republic and the Netherlands
1.2Case study 2: The best interest of the child (art. 3 CRC) in the Turkish Republic of Northern Cyprus (TRNC) and the Netherlands
1.3The right to be protected against sexual exploitation (art. 34, 35 CRC) in the United States: Massachusetts and the Netherlands
Since the CRC poses children's rights as universal, thereby implying a universal understanding of the child within specific legal orders, I have chosen to research each children's rights article in two profoundly different socio-legal cultures, assuming that this will grant a more profound understanding of the socio-legal position of the child in the international community.[9]
These case studies have been selected based on the challenge they pose for the modern conception of children’s rights. They raise questions regarding the child-adult distinction, questions of agency versus structure, subject/object distinction, etc. In addition, they have been selected for their potential to provide new information about the wrongs from which children suffer. For each of the cases, there are indications that these children’s rights articles are grossly violated in a certain state, yet they are under researched. By using this approach I can both present new, necessary and useful data on children’s rights violations, create awareness and start my research from a relatively fresh and open position, the latter being an advantage for testing and developing the new theoretical framework. Each of the case studies focusses on one specific article of the CRC and concentrates on understanding these cases in their specific cultural, yet simultaneously global, contexts.
For a reflection on how the three cases are internally connected, see 2.
Case study 1: The child’s right to education (art. 28, 29 CRC) in the Central African Republic and the Netherlands
With current tensions in the Central African Republic (CAR), many public buildings have been closed and schools are often out of operation –many have been closed since the start of the conflict, which means they have been closed for more than three years. Hence, education is inaccessible to many children. To address this problem, school kits are being distributed and the UN are creating so-called “Temporary Safe Learning Spaces”.[10] This practice is what is referred to by the CRC committee as “non-formal education”.[11]
In the Netherlands the situation is completely different. There are sufficient schools and materials. However, according to the 2014 report by the Dutch NGO Coalition for Children’s Rights, there are concerns about the quality of education, in particular the ability of teachers to guide the social-emotional development of children.[12] In addition, in 2012 it was made public by the Dutch minister of education that annually about 16.000 children do not attend school in the Netherlands.[13] It is unclear who these children are exactly. A 2012 report by Trimbos Institute indicates that many girls ages 12-18 from the Roma community do not attend school. The report suggests this problem but also argues that this phenomenon has not been sufficiently researched.[14]
Case study 2: The best interest of the child (art. 3 CRC) in the Turkish Republic of Northern Cyprus (TRNC) and the Netherlands
“The best interest of the child” as mentioned in the CRC art. 3 is addressed to “all actions considering children”, by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, state parties and individuals legally responsible for the child (parents, legal guardians, others).
With regard to the TRNC, there are many reasons to wonder whether a certain practice can be argued to be in the best interest of the child, starting with growing up on internationally disputed territory. In addition, socio-economic circumstances in the TRNC are poor and under researched. For people who live on this internationally disputed territory, there is no way out. There are hardly any options to make money on this part of the island, and very few will ever have the option to leave the 3000 km2 of the island, including children who grow up in this impasse. There is a lack of data on children’s rights violations in the TRNC. SOS Children’s Village, who run a village in the TRNC, argue that ‘The political situation in North Cyprus has an effect on the lives of children. The fact that the country is not recognised means that international funding for projects is not always available’.[15] No studies specifically into the situation of children’s rights in the TRNC have been conducted.[16] However, there are some signs in popular media that indicate violation of children’s rights in the area.[17]
In the Netherlands, the political and economic climate is theoretically ideal for the realization of the best interest principle. The country has been in a state of peace and prosperity for a long time. One would expect that an agreement to always honour the best interest of the child would easily be made a primary consideration. However, the best interest of the child has a particularly obscure role in jurisprudence. For example in 2004 a 16 year old offender has been tried as an adult for shooting his teacher, even though several experts testified to his immaturity and how it would be in his best interest to be tried as a child.[18] In addition, many children’s rights professionals point to the obscurity of the best interest article. It remains unclear what should be considered what “the best interest of the child” are, and who is to decide on these.[19]
Case study 3: The right to be protected against sexual exploitation in the United States: Massachusetts and the Netherlands
The issue of commercial sexual exploitation is a difficult and obscure issue in any culture. It is often widely condemned and the subject of heavy penal and social consequences.[20] Yet it is also a global common practice, currently involving almost 7 million children globally, according to recent estimates.[21]
In the US, there is little data available on the commercial sexual exploitation of children (CSEC), due to there being ‘no national reporting measure currently in place to provide accurate reporting of the numbers […]’.[22] According to Estes & Weiner (2001) there is a ‘widespread societal disbelief concerning the nature, extent and severity of the CSEC within the United States’.[23] There is a clear need for further research into the subject[24], especially in relation to the child/adult/government distinction, as Marcus et. al. (2012) suggest, who write about ‘the arbitrary division between child and adult built into the Trafficking Victims Protection Act (TVPA) and the Commercial Sexual Exploitation of Children (CSEC) paradigm’, which according to them ‘exclude the majority of market-involved adolescents from (…) protection and support’, and ‘vanish the very real problems and needs of highly vulnerable young people attempting to survive in difficult situations’.[25]
In the Netherlands, the issue of CSEC is put relatively high on the political agenda. Attention is given to both children being exploited in the Netherlands, as to the role of Dutch nationals who are involved in sexually exploiting children worldwide. Unlike the US, the Netherlands have a National Plan dealing with Sexual Abuse of Children. Whether all counter measures are actually effective in prevention of sexual exploitation of children remains nevertheless questionable.[26] A lack of data concerns the sexual exploitation of boys.[27]
2.The second level, or overarching level: a more general philosophical/legal reflection on the socio-legal position of the child in the international legal community
2.1Literature review: the socio-legal position of the child in the international legal community
An interesting scholar who questions the socio-legal position of the child, specifically in relation to commercial sexual exploitation of children, is Prof. Julia O’Connell Davidson. In her work, she questions the popular socio-legal image of the vulnerable child who needs protection, adding that children in fact can be ‘victims of victimhood (i.e. harmed by the fact that they are socially imagined as objects, without subjectivity or agency)’.[28] She discusses children as being socially constructed as beyond or outside the social contract.[29]
Other relevant scholarly works on the subject are by philosophers Archard, Schapiro and Worsfold, who question the meaning of the concept of childhood in relation to the child's legal position. In law, interesting work has been done on (justification of) children’s rights, such as work by Alston, Freeman, Hanson, Liebel. In sociology, several scholars discuss the social position of the child in the international community, such as Boyden, James, Prout, Jenks. In history, Goodwin and Finn have analyzed the historical position of the child from a ‘Just Practice perspective’, hoping the historical exploration will ‘help grasp contemporary struggles over the care and control of children’.[30] I am hoping to connect these works to works in philosophy of law and political philosophy that deal with the subject of the individual’s position in relation to the legal order, in particular contract theory (Hobbes, Rousseau, Kant) combined with the critique of social-legal power as expressed by Foucault and Nietzsche.[31]