III WHAT THE CRC ACTUALLY IS

1. Overview

The complete text of the CRC is attached to this document as an appendix. Becoming familiar with it takes a considerable amount of time. The presentation of the main points which follows was assembled as a practical measure. It comprises the contents of Part I (articles 1­41) and Part II (articles 42-45) of the CRC stated in their simplest possible form. A concise indication of how the different articles relate to each other is also given. This catalogue does not bring us very much closer to the core question of what each article in the CRC deals with. It does however indicate who the CRC should protect, how and it what way.

Article 1    Definition of the "child"
* A human being who has not yet reached the age of 18 years
* Domestic legislation: majority can be attained earlier than at 18th birthday; if so, age limit of 18 is not in force.

Article 2

 

Non-discrimination
* Boys and girls have equal rights
* Does not necessarily mean that children and adults have equal rights

Article 3

The "best interests of the child" principle
* Earlier confirmed in 1959 DRC
* See CRC articles 9, 18, 20, 21, 37, and 40
Article 4 Implementation
* States Parties shall take all appropriate legislative, administrative, and other measures
* Depends on human, economic, and organizational resources
Article 5      Parents
* Other human-rights instruments such as the 1966Convention on Civil and Political Rights (articles 23-24) emphasise the importance of family and parents
* See also CRC articles 7, 9, 10, 18, and 29

Article 6

 

 Survival rights
* Mostly linked to U5MR, also now to HIV-AIDS
* Right to life before birth (e.g. the abortion question) left open

Article 7

 

Birth registration: the right to know one's parents
* Main purposes related to trafficking in children 
* Minimum standards of registration• name, sex, date of birth, where born, names and nationality of parents

Article 8

 

Identity
* Preparation of this article was connected with the disappearance of children under the regime of the Argentine junta during 1970s and 1980s
* Identity is related to family history and relations between famil members, e.g. siblings, parents and grandparents, other relatives, and extended families
Article 9 Separation from parents
* Legally-confirmed criteria, grounds for interference * Children have the right to personal relationships, and direct contact with both parents
Article 10            Family reunification
* Deals with many types of refugees such as people who have been tortured and violated, also so-called "economic" refugees
* In connection with "anchor-children", parents have the right to follow them

Article 11

 

Illicit transferee, and associated non-return
* This article does not relate to financial motives, but to emotion-related action by a child's biological parents
* Compare with CRC Article 35 (trafficking), which is linked to financial or commercial motives, and to sexual exploitation

Article 12

 

Participation
*Meaning is, in a way, the right to be heard
* No biological age limit• this article is based on cognitive age and on psychosocial maturity

Article 13

 

Freedom of expression
* Includes freedom to seek, receive and impart information and ideas of all kind, also stated in Article 17
*Some restrictions: public order

Article 14

 

Freedom of thought, conscience, and religion
* Freedom of thought and of conscience are perhaps odd principles in themselves -who knows what anymone elsehas in her or his mind?
* Many reservations linked to freedom of religion

Article 15

 

Peaceful assembly
*Articles 12-14 emphasise individual participation, Article 15 underlines collective participation
* Adults have political rights but children do not. Art. 15 therefore offers some kinds of right as substitutes for political rights

Article 16

 

 

Right to privacy
* It is difficult to be precise about what "privacy" actually means - it is close to integrity, self-determination, the right to control some issues, the right to secrecy and to human dignity
* One possible definition: "Privacy is a social ritual by means of which an individual's moral title to her or his existence is conferred."

Article 17

 

Media
* The only article in all human rights agreements which takes account of the mass media.
* A rather restricted view of the main tasks of the mass media

Article 18

 

Family
* It has been argued that many CRC articles are too "individual" because the family is the fundamental group in society
* Article 18(1) anyway highlights the essential responsibilities of parents and the best interests of children

Article 19

 

 

Violence
* Can be of four types: (1) physical, (2) mental, (a) active, and (b) passive; and four combinations: 1 + a, 1 + b, 2 + a, and 2 + b. This article covers all of them.
* The primary article when dealing with violence in the home and bullying (for example at school).

Article 20

 

Substitute home
* For children who cannot live temporarily or
permanently with their parents (see also Article 19)
* See CRC Article 25
Article 21 Adoption
* Both national and international adoptions are covered in this article
* See also CRC articles 10(2), 12, 25, and 35

Article 22

 

Refugees
* States Parties shall take appropriate measures to ensure that children are given humanitarian assistance
* See also CRC articles 9-10

Article 23

 

Disabled children
* Disability includes many kinds of physical, intellectual or sensory impairment
* Article 23 is based on special assistance and has nothing to do with negative discrimination

Article 25

 

Review of treatment
* Child abuse in foster placements, hospitals, adoption placements, boarding schools, etc
* Periodic control by independent professionals

Article 26

 

 

Social security
* This article is based on the model where society and the state are responsible for social security
* Developing countries have different systems (social security is usually based on families)

Article 27

 

Material assistance by parents
* Article 5 emphasises parents' responsibility
* In many countries, the state provides direct support and
demands repayments from non-contributing parents
Article 28 Education
* Primary education compulsory and free for all children * Prevention of discrimination (girls vs. boys, dropping out of school)

Article 29

 

Aims of education
* Achieving fullest potential offered by a child's personality, talents, and mental/physical abilities
* Respect for parents' differing values

Article 30

 

Minorities
* See CRC articles 8 (identity), 20 (ethnic, religious, cultural, linguistic background), and 29 (aboriginals) * Also based on CRC Article 2 (non-discrimination)

Article 31

 

Leisure
* Covers free time, rest, leisure, play, and recreational activities
* Hectic pace of life in some rich countries where children can be "small adults" — this is contrary to this article
Article 32 Child labour
* CRC leaves biological age open, ILO has different rules * ILO deals with type of work (which industry, night work), certain general age limits
Article 33 Drugs
* Includes alcohol, tobacco, narcotics, psychotropic substances
* No rules in CRC regarding pregnant women (FAS/ FAE)

Article 34

 

Sexual exploitation
* See also the CRC's Optional Protocol
* Trafficking and the so-called UN Palermo convention in 2000

Article 35

 

Trafficking
* See also CRC Article 11
* CRC Article 35 attempts to prevent not only sexual exploitation (Article 34) but also any kind of economic exploitation (child labour and sexual abuse)
Article 36 All forms of exploitation
* Concrete rules are given in CRC articles 32-35, here they are stated in a very abstract manner
* Covers for example, medical experimentation

Article 37

 

Cruel treatment or punishment
* Corporal punishment is prohibited
* As the death penalty is a possibility is a possibility in the USA, it is often said that this is one of the main reasons for that country to remain outside the CRC

Article 38

 

Armed conflict
* See also the CRC's Optional Protocol
* Article 38(2) is not in line with the Article 3(1) principle of childrens' best interests

Article 39

 

Rehabilitation
* See also CRC articles 19, 32, 33, 34, 35, and 36
* All appropriate measures: physical, psychological, and social support and assistance
Article 40 Juvenile justice
* This article relates especially to CRC Article 37 * The question of biological age limits is left open

Article 41

 

 

Existing standards and other human rights plus domestic legislation
* If other legal arrangements than the CRC are more efficient, the former apply
* For example, according to national law X, only adults can participate in armed conflict, but Article 38(2) allows minors of age 15-17 years to do so. In such a case, X is in force, not CRC Article 38(2)

Article 42

 

Making the CRC widely known
* Audience is both children and adults
* Instruments such as brochures, posters, radio or television programmes, playing cards for children or other games, computer software, etc.

Article 43

 

Committee on the Rights of the Child * Comprises ten experts
* Concentrates on certain specific issues which change from year to year, in 1996 the theme was " The Child and the Media"

Article 44

 

Reporting obligations of State Parties
* To the Committee on the Rights of the Child every five years
* Reports shall contain adequate information linked to statistics, problems, violations, and measures of implementation
Article 45 Cooperation with UN agencies and other bodies
* UNICEF is the most important
* International meetings such as world summits for Children
   

As already pointed out, this catalogue does not bring us much closer to the question of what the CRC is all about. It does however serve as a customised list which can be used to locate specific articles and associated background factors.

2. Who is protected, and how

Articles can be examined according to whether they concern childrens' rights (articles 1-41) or administrative regulations concerning their enforcement. In the case of the former, the main observation is that they provide very comprehensive coverage of all the sectors that are usually realised in everyday life. From this perspective, the CRC can be considered to achieve comprehensive coverage. It is also possible to say that:

The CRC

  • is an international codification of children's rights from a human rights perspective
  • emphasises the importance of human dignity, equality, and non­discrimination
  • is based on four types of rights: survival rights and rights linked to protection, provision and participation
  • was adopted by the UN General Assembly on 20th November 1989
  • entered into force internationally on 2nd September 1990
  • superceded the 1959 Declaration of the Rights of the Child
  • is based on the principle of the child's best interests
  • contains 54 articles in three parts; Part I deals with childrens' rights, parts II and III with administrative rules
  • is a binding human rights instrument for human beings who have not yet reached an age of 18 years
  • is, from the legal-technical viewpoint, seen as being founded on some kind of norm-overlap system: the CRC is indivisible and its articles are interdependent
  • has many primary rules, many exceptions and many additional exceptions to these exceptions (i.e. it is difficult to fully absorb)
  • is a collective instrument — it does not allow an individual legal suit in a concrete case
  • is primarily focused on children — but the importance of parents/ family is mentioned on several occasions
  • is not alone, the only agreement in force — there are two optional protocols (OP) relating to the (i) involvement of children in armed conflict (entered into force internationally on 21st February 2002), and (ii) the sale of children, child prostitution and child pornography (entered into force internationally on 18th January 2002).
  • allows reservations and declarations

Every viewpoint opens further viewpoints and also on each viewpoint's relationship to others. This became clear in even the first characterisation, according to which the CRC is an agreement concerning human rights for juveniles. On closer examination, this turns out to be incorrect - human rights apply equally to all humans regardless of their age. It would be quite absurd to bluntly state, from an adult viewpoint, that children have had their own human rights confirmed. This is not the case.

If we start by opening up the individual points contained in each item in the highly-summarised catalogue above, the result is that answers to the apparently simple question What is the CRC? lead are so complicated that the information value they have is minimal And since the single fundamental target of the presentation in this book is to improve the quality of the information, not to increase the degree of uncertainty, the appropriate course of action is to be satisfied with stating what is most essential about the CRC Because estimation of significance leads to the presentation of subjective comments, there can, in principle, be many opinions concerning any chosen viewpoint. Also, from the author's viewpoint, the idea that the CRC emphasises childrens' needs, position and rights primarily targets the protection of children and the cultivation of their individuality. Respecting childrens' individuality requires that both human rights and the special rights that belong to juveniles are confirmed for under-18s.

It is customary to state that there are five types of human rights and three types of special human rights for children. Classified in this way, human rights consist of (1) economic, (2) social and (3) cultural rights, (4) civil rights and (5) political rights. For their part, childrens' special rights concern (a) protection, (b) childrens' rights to care and (c) childrens' rights to be heard in matters that concern them. It is possible to say that human dignity = (1) & (2) & (3) & (4) & (5) + (a) & (b) & (c)•

As far as under-18s are concerned, the model has however failed, since children do not have the same rights as adults such as the right to emigrate or the right to freedom of travel. Under-18s do not even have political rights such as the right to vote in parliamentary elections and the right to stand as candidates. In this way, childrens' rights are more restricted than the human rights of adults. It is therefore approriate to abandon the "five-section" grouping of human rights and dimension the subject for children in the most universal manner possible. The diagram below shows how this can be done:

 

 

 

 

 

 

This diagram has a dual function. Firstly, it shows the author's view of what constitutes human dignity. Secondly, if the label "HUMAN DIGNITY" is replaced by "CRC", it shows the main elements that make up the CRC. The upper five elements (privacy, self-determination, equality, integrity and non-discrimination) are fundamental human rights, the lower three (protection, provision, and participation) are the main elements in childrens' special rights.

Human and special rights are closely related (especially integrity <-> protection; equality <-> provision; self- determination <-> participation) and the lines in the diagram indicate this. When a child has the right to physical and mental integrity, this also means that he or she has the right to protection.

In clarification, it should also be stated that humans of all ages are entitled to physical and mental integrity: a central task in human rights, basic rights and rights to freedom is maintaining this. It is at the same time an individual right and a collective duty. The right to self-determination is not, however, a fundamental requirement for integrity. If this were to be so, for example, a baby could be treated as harshly as one wished. It is therefore easy to see that a choice between either everyone's individual rights or collective rights and obligations is, in practice, impossible. A baby has the right to protection, and the carer's duty is to ensure the baby's integrity. To put it another way: it is purely of academic interest to say that either individual or collective rights can exist — they are simultaneous and tightly linked.

Equality means that all children have the right to care and protection. For children, the adult's right to self-determination means that they have the right to be heard in matters that concern them. In spite of this right to be heard, children do not always have the right to make decisions concerning themselves. Authority in childrens' upbringing, care and protection lies with adults, primarily their biological or social parents. This is the essential reason why it is not possible to examine childrens' rights by ignoring the collective rights and obligations of adults. This is how the family viewpoint enters the picture.

In connection with the CRC, it is usual to speak not only of survival rights, but also the three "Ps": Protection (P1; childrens' right to protection), Provision (P2; childrens' right to care, attention and upbringing), and Participation (P3; childrens' right to be heard, i.e. the right to be heard in matters that concern them / childrens' right to co-determination). In terms of time, the question is one of extending childrens' human and special rights. With only a small degree of exaggeration, it could be said that while articles in the 1924 Geneva declaration concentrated on P 1 , the 1959 declaration explored P1 and P2, and the CRC is based on P1, P2 and P3. New is also the fact that the significance of the family and parents is given greater emphasis in the CRC than in the 1959 declaration, which itself laid more stress on the family viewpoint than did the 1924 declaration.

The catalogue of articles highlights the comprehensive nature of the regulations and, shows, indirectly, that protection (P1) is essentially regulated by CRC articles 31-39, care and attention (P2) is dealt with in articles 17-26 and the right to participation (P3) is handled in articles 12-15. Viewed in this way, the CRC is a codification of childrens' special rights. Special rights are specifically mentioned in articles 12-15, 17­26 and 31-39. Taken together, they form an indivisible whole.

Time after time it is claimed that the CRC is a binding human rights agreement which incorporates the full range of human rights — civil and political rights as well economic, social and cultural rights. This is stated in spite of the fact that it is not completely true. Everyone knows that children do not have political rights. It is also a fact that childrens' civil rights are significantly more restricted than corresponding adults' rights. Actually, it would be against common sense for children in daycare facilities to have national voting rights and the right to stand as parliamentary candidates Similarly, many rights of freedom, such as the freedom to exist and emigrate, and the freedom to follow a profession, do not, as they stand, affect children.

The continual references made to binding are also problematical, for many different reasons. Concretisation is associated with reservations, numerous interpretations of the essential elements of particular articles, slack regulation and the so-called "principle of greater efficiency".

States Parties of the United Nations do not have to ratify the CRC, and both Somalia and the United States have not done so. Other States Parties have incorporated the whole of the CRC into their national legal systems. In doing so, they have been able to make reservations to individual articles or make limitations in scope and applicability. If a State Party has decided to make a reservation concerning a particular article, that article is not applicable. Seventy countries out of the total of 190 that ratified the CRC have made reservations and declarations. The majority of these are Islamic nations in which the position and rights of children are regulated by the Quran instead of the CRC.

Article 16 of the CRC provides an example of how there is space for interpretation in the regulations. This states that "no child shall be subjected to - - unlawful interference with his or her privacy - -". What is "lawful" interference with a child's privacy? What indeed is "privacy"? - the right to be and to be left alone (with parents or siblings)?, illegal encryption?, the right to control sensitive information concerning oneself?, the possibility to prevent publication of one's name or photograph in a newspaper? The questions are rhetorical and intended to be so. They do however indicate that the subject is a difficult one to analyse and that the article concerned can be interpreted in countless ways.

Slack regulation can, for example, be seen in Article 7 (nationality), Article 12 (taking account of childrens' opinions), Article 21 (adoption) and Article 24 (health services). Each of these emphasises different intentions that are specified in a conditional manner. States Parties should if possible strive to achieve, for example, healthcare services by degrees. The lack of any absolute requirement to do away with something that is clearly incorrect does not remove the corresponding obligation to do so.

Many CRC articles set only modest criteria for childrens' rights. This approach rests on strong foundations. If the minimum standards contained in the CRC were to be partly incorporated into national legal systems as part of the ratification process, this would also allow low-level criteria in national legislation. The background to this question is primarily the "principle of greater efficiency" adopted in the CRC. It is the observation in Article 41 that "Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in: (a) The law of a State Party; or (b) International law in force for that State."

With only a slight degree of exaggeration, it can be claimed that in those United Nations States Parties that have not made reservations or exceptions to the CRC, applicability is achieved through national legislation. The CRC can therefore be characterised as a normative plan for how the needs and rights of children should in most cases be taken account of, when, for example, media representatives are considering comprehensive operations that benefit children.

3. Best interests of the child

The 1924 and 1959 declarations and the 1989 convention all place the best interests of children before the best interests of adults. In the 1924 declaration, the best interests of children are referred to once, in the 1959 declaration they appear twice. In the CRC, the best interests of children are referred to in seven different places. The following articles illustrate (from a legislative viewpoint) this aspect.

The child must be the first to receive relief in times of distress.

Principle 3 in the 1924 GDRC

The child shall enjoy special protection, and shall be given opportunities and facilities - - to enable him to develop physically, mentally, morally, spiritually, and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for his purpose, the best interests of the child shall be the paramount consideration.
Principle 2 in the 1959 DRC

The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents.
Principle 7(2) in the 1959 DRC

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.
Article 3(1) in the 1989 CRC

Comparison of the texts brings out the marching order — first children, then adults. The articles also reveal that while the 1924 declaration emphasises unusual circumstances (i.e. the first world war), both the 1959 declaration and the 1989 convention take the viewpoint of "normal" circumstances. Viewed in this way, the concept of childrens' best interests has expanded over time.

Differentiating factors are also revealed by comparing the DRC and the CRC. In the DRC, the best interests of children are tied to their parents and family, the CRC makes them an obligation for government. Its task is to promote the primacy of childrens' best interests and to implement this outside the home.

As the 1924 and 1959 declarations were not binding agreements, they could not be ratified and incorporated into national legislation. The situation with the CRC is different, since its legal status is different to that of a declaration. During the process of ratification, it is possible for a State Party to make one or more reservations. Most commonly, the making of a reservation signifies a desire to exclude the contents of the article in question from national legislation.

In almost all United Nations States Parties, Article 3(1) of the CRC is incorporated as it was drafted and was adopted as is. What Article 3(1) actually contains, no-one can precisely state. In reality, it is possible to proclaim the "best interests of the child" at any time, by any means, and in any connection. Childrens' best interests resemble a distant horizon. We can see it quite clearly in front of us, but as we move towards it, it stays as far away from us as ever.

This metaphor is however unsatisfactory, since we are "burying our heads in the sand". We have to take a position on how the principle of childrens' best interests should be understood. The author's personal opinion is as follows:

If we start from the viewpoint that parents have the prime responsibility for a child's upbringing, care and attention, then consideration focuses on the best interests of an individual child in concreto. In such a case, the family meets certain basic requirements such as: (1) that economic security is guaranteed, (2) that each family member's individual needs are taken account of in the housekeeping, (3) that adults support each other regardless of whether the household has a single parent or two, or is an extended family, (4) that adults and children have their own roles, that there is a clear generation gap between parents and children,
that even if there is conflict, there is also agreement, (7) that the family and its members interact with others outside the family, and (8) that children experience acceptance as children (human being), not just because of what they can produce (human doing). "Best interests of children" in concreto is the summation of (1)-(8). This thought experimant is made difficult by the fact that children from the same family can be different at different ages. Their best interests may not therefore be common ones. Every child in every family will require different treatment to every other child — emotionally, knowingly and in other ways.

Precisely specifying the best interests of an individual child in a positive manner is an awkward thing to do. It is always easier to state what is not in a child's best interests, i.e. what is the contrary. The question then concerns the other side of the criteria mentioned in the previous paragraph. In such a situation a family would display (a) economic insecurity, (b) inequality between the economic position of different family members, (c) mental and physical violence, and (d) continuing conflict as a consequence of marital or common-law divorce. It could also be that (e) a child would take responsibility for a parent rather than things being the opposite way round. Also evident would be (f) an inability to resolve differences of opinion, (g) disorder in social situations, and (h) children valued for human doing but not as human beings. If childrens' best interests are specified as requirements (1)-(8), the corresponding contrary indicators should be viewed in the light of criteria (a)-(h). In cases where these are extant, childrens' best interests cannot be realised.

In Aricle 7(2) of the 1959 declaration, the stated bundle of principles concerning childrens' best interests was referred to as a child's best interests in her or his own family circle. As Article 3(1) of the CRC gives best interests of the child as principles that should be incorporated in government operations, the question is no longer childrens' best interests in concreto, but their best interests at a general level (in abstracto). These can be explained in two quite different ways.

One method of clarification is to return to what has already been stated, i.e. that in connection with the CRC, it is usual to speak not only of "survival rights", but also the three "Ps": — Protection (P 1 : childrens' right to protection), Provision (P2: childrens' right to care, attention and upbringing), and Participation (P3: childrens' right to be heard, i.e. the right to be heard in matters that concern them / childrens' right to co-determination). The CRC is based on P1, P2 and P3. The best interests of children are then the sum of PI, P2 and P3.

Children have the simultaneous right to protection, care and attention, and the right to be heard in matters that concern them. When these rights are fulfilled, it means that the best interests of children have been realised. This type of concept of childrens' best interests implies that the individual best interests of children in particular individual situations are not considered.

The alternative approach is to pay attention to childrens' needs. They vary with age. It is quite impossible to start by assuming that babies, infants, young children, children just starting school or adolescents or young people on the threshold of adulthood have equivalent needs. Gender affects every situation concerning humans who are not yet adult. Girls can be in a different position to boys, and girls can have different needs to boys. Where children live also has significance. The situation in Asia can be slightly different to that in Africa or Europe or North, Central or South America. Regional differences — economic, civil and idealogical — are great.

This results in childrens' rights being understood in different ways in different parts of the world. In spite of this, there is good reason to keep childrens' needs separate from their special rights. The latter are bound to time, place, culture and ideology. Childrens' needs are not so bound. It is possible to characterise them as "having", "being" and "loving".

Having emphasises the material side, and the question concerns specific basic economic security. The primary source of this is the family, backed up by society. If a family is living in extreme distress, economic disaster or poverty, childrens' "having" needs are not met. Being is related to the preservation of each individual's dignity. Even though a child may be only half grown, he or she has their own identity, individuality and integrity. Loving means showing feelings, attention, acceptance, respect and being liked. This always brings with it a dichotomy — are we paying attention to a child's value as such (i.e. human being) or what he or she does (human doing). From the viewpoint of childrens' needs, neither deliberate acts nor omissions play a decisive role. But a child as such —with all its defects and deficiencies — exists. Children require love when adults are unable to accept their doings.

In this way, the best interests of children are shaped in abstracto as the summation of having, being and loving. Article 3(I) of the CRC targets exactly this. It is a matter of opinion whether speaking of fulfilling the three "Ps" highlights this. It is not, however, a matter of opinion whether childrens' best interests should be viewed in concreto or in abstracto. The CRC is not intended to be a set of norms designed for people bringing up children, it is a codification for shaping the machinery of government. It is for this reason that the best interests of children are emphasised at a fairly general level.

In fact, the leading principle is not protecting children, it is that decision makers remember the value and significance of childhood. When searching for the validity of the CRC and its general acceptance, the concept of childrens' best interests can be successfully connected with in just this way. We will come to see that this statement has meaning when we look at how these matters are handled in the media.

4. Non-discrimination

In broad terms, the CRC contains two types of regulations. There are those which regulate childrens' special rights and those which emphasise universal human rights. When it comes to childrens' best interests / the protection of childhood, we are talking about childrens' special rights. In its legal prohibition of discrimination and its promotion of equality, Article 2 of the CRC is a typical example of human rights principles. It is adopted almost word for word from the 1948 Universal Declaration of Human Rights in both the 1959 DRC and the 1989 CRC:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2(1) in 1948 UDHR

The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family.
Article 1 in 1959 DRC

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Article 2(1) in 1989 CRC

It is possible to claim that Article 3(I) of the CRC which emphasises childrens' best interests is based on a particular form of age discrimination — the rights of someone who is under 18 years will always prevail over those of an adult. Take the case where, for example, a 17­year-old is economically, socially and emotionally well off while someone who has reached the age of 18 years is living in abject poverty and will suffer from psychological disorder in the absence of social interaction. The 17-year-old has rights even though he or she does not need special protection, while the 18-year-old's situation is just the opposite. The CRC therefore places the 17-year-old in a better position than someone who has achieved adulthood. Viewed in this way, it appears to be moving in the direction of specific discrimination.

Attention can be directed not only to children and adults, but also exclusively to the under-18s. In connection with this age group, Article 2 of the CRC forbids all forms of discrimination. It establishes a position of eqivality between all children. The essential formulation is not however so uncomplicated. And the reason is simple: there are children of different ages.

It is possible to approach questions of age by emphasising those viewpoints which psychologists, psychiatrists and educationalists consider to be important. It is very likely that they will stress in a fairly identical manner the biological, psychological and social properties of babies, infants, children starting school and those who are a little older, adolescents and people on the threshold of adulthood, and mature juveniles. They are also likely to emphasise that changes in young people's lives take place very quickly and that in later phases the situation becomes more stable. Adults do not really change: a "37- year-old" is both biologically and psychologically the same as a "47- year-old". But a "7-year-old" is a completely different person to a "17- year-old".

Growth can be analysed by saying that the question is the cultivation of a child's healthy self-esteem and guaranteeing the preservation of her or his dignity. We also come up against the need to pay attention to the manner in which a child's cognitive and emotional side is formed in small steps, and the way her or his conception of the cause-effect relationship develops. Another question is attachment and the affection that follows this.

Attachment and affection require that children be listened to. This is not tied to age, and it is not particularly anchored in speech development. Babies can and should be listened to. Normal whimpering or crying is a signal of something that should be reacted to in one way or another. In later phases, listening happens in an interactive way. The same thing can be detected in reverse. If a child's non-verbal messages are ignored, this alone will adversely affect that child's development of self-esteem. This aspect of the issue is overlooked in Article 12 of the CRC because its significance is attributed to those who have achieved the age of cognition. In this respect, Article 12 is no more in line with Article 3(I) than it is with Article 2. If all children were to be positioned equally without any form of discrimination, the CRC would not make any difference between the extent to which children should be heard, without regard to their degree of cognitive development.

Ordinary national legislation contains regulations which address the significance of biological age as a shaper of the rights that children should have. Questions include at what age a child should go to school, becomes responsible for criminal acts, or can marry.

In the CRC, regulations concerning age are fairly abstract. Occasional references to biological age are made, but only in passing. This is revealed, for example, in Article 40 (juvenile justice), which mentions that biological age should be taken into consideration but is silent about what that age should be. The same observation can be made about Article 32 (child labour), where the question of what is or what is not a suitable biological age to start work is avoided.

From a wider perspective, one difficulty is that the CRC delegates the right to decide age norms to United Nations States Parties in a fairly-free manner, and always in accordance with the way that age-limit regulations are framed in each State Party. This has the result that the use of different criteria by different countries results in different conclusions. The principle rule in all cases is that the poorer the country, the lower is the age at which it is possible to enter working life (outside the home). In richer countries, children are given the opportunity to go to school. If and when this is so, according to Article 2 of the CRC, children are not in a position of equality.

In fact, the only exception to biological age is regulated by Article 38 of the CRC. According to this, States Parties should take all possible measures to ensure that children below the age of 15 years are not involved in conflict or in war. As this means that children aged 15-17 years can take part in hostilities, it also follows that this legal solution is not based on the regulatory intention in Article 3(I), according to which everything in the document should be viewed as being in the best interests of the under-18s. It cannot be in the best interests of a 15- 17 year-old that he or she can go to war. Since in several countries, access to weapons or a general duty to national service is only applicable to people who are 18 years or older, Article 2 of the CRC is problematical in this respect.

It is easier to explore this theme further, but there is no immediate need to do so. It is sufficient to note how difficult it is to control matters of this kind using a strict interpretation of CRC articles 2 and 3, either separately or together.