“Childhood and Rights: Reflections on the UN Convention on the Rights of the Child”. Childhood’s Today.

Vol 2 (2):1-14.

Childhood and Rights:

Reflections on the UN Convention on the Rights of the Child

Catarina Tomás1

Abstract:
This article focuses on the review of the main themes and issues that have appeared in
the literature on the UN Convention on the Rights of the Child (1989) with regard to
debates about children’s rights in the context of globalisation.
Nearly two decades after its birth, it is necessary to carry out a detailed reflection on
and revision to the Convention, since the situation of childhood and of children in the
world has been overtaken by a number of problems, ambiguities and exclusions. This
convention is a normative and symbolic landmark connected with children's rights and
still requires a great deal of critical thinking.

Introduction
Children’s rights have been formally consecrated by means of changes
introduced into the legislation. The development of the discourse related to the
promotion of children’s rights has been a fact within social and political institutions, yet
we are very far from an ideal situation of respect for these rights. It is, nonetheless,
important to characterise the process of constitution of children’s rights, which led up to
the worldwide legal and normative model that exists today – the Convention on the
Rights of the Child (henceforth referred to as CRC).
This article focuses on the reflections about the CRC associated with the process
of globalisation, namely in the promotion of two mechanisms: legislative harmonisation
and uniformisation, on the one hand, and standardisation regarding the worldwide
conception that children have rights, on the other. The article attempts to highlight the
need to discuss the CRC starting with the concept of childhood cosmopolitism. In other
words, approaching the issue from a down-top perspective using the contributions of
non-hegemonic actors and paradigms.
There is nowadays a widespread ongoing discussion over children’s rights. It is
not a recent discussion and thus it takes on a more complex form. This discussion turns

1
Sociologist, Universidade da Beira Interior and LIBEC, University of Minho, Portugal
Email: catarinatomas@gmail.com

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into a global question; however, it has to be carried out in a context which goes well
beyond the limits of neoliberal hegemonic globalisation. This view considers that our
societies are ruled by order and progress, and therefore need only consolidation.
Nevertheless, the search for social emancipation, through lawful means, is a counter-
hegemonic process and, for this reason, suffers from severe resistance.
Legislation protecting children had its beginning in the 19th century, when the
child was the object of the first legal act which established the minimum age for working
in the coal mines (Mines Act, 1842). We may state that, in social and historical terms,
the “discovery” of childhood and its distancing from the world of adults became a
process of protection and promotion of its rights, especially in the 19th and 20th
centuries. The questions that arise now are to know how we can characterise the 21st
century in relation to childhood and children. Will this be the time for promotion and
guarantee of children’s rights? Will this period be one of construction of a new paradigm
which no longer considers children’s rights as extra rights (Leach 1994), that is, as
specific rights of a social group which are built at the expense of other rights?
These and other issues will the focus of further reflection.

Globalisation, Childhood and Rights

The globalisation of the themes associated with childhood resulted, mainly in the
80s of the 20th century, in a significant growth in international actions in favour of the
defence of children’s rights. This phenomenon has resulted in the multiplication of
NGOs, social movements, meetings and forums dedicated to childhood. The
collaboration between NGOs, governments and UNICEF, according to Pilotti (2001),
reinforces the confidence in the capacity of the international community to influence
governments through resolutions and recommendations, especially those that are
elaborated and approved at the United Nations.
There is now a transnational movement, even if emerging, fighting for children’s
rights, which is called childhood cosmopolitism (Tomás and Soares, 2004; Tomás,
2006). It is a form of counter-hegemonic globalisation, a project where various battles,
projects, actors, pluralities and diversities cohere, most of the time collaborating among
themselves, in the defence children’s rights. This is something which can be seen in the
role of and in different action plans undertaken by various organisations (UNICEF,
Childwatch International, International Save the Children Alliance, among others),
governmental programs, private programs, scientific areas and legislative production.

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We can define the discussion on children’s rights and the CRC as a legitimate
agonistic space (Nunes and Matias, 2003), i.e. a space “where conceptions confront
each other which are distinct or opposed to the problem under debate, just as are the
actors [who are legitimately admitted to this space] who give voice to these
conceptions” (ibidem:132).
It is important that children’s rights be discussed at the level of procedures, in
their social dimensions, in a perspective of inclusion and of fulfilment of citizenship and
of globalisation. Additionally, it should be examined from a critical standpoint in relation
to a historical process which is characterised by its attempt to impose supposedly
universal and unquestionable preconceptions onto children. It is necessary, still, to
strengthen the notion and the agenda of children’s rights, and to think with an
emancipated logic in relation to children. If we do not, we will soon run the risk of finding
children’s rights being concerned only with instrumental rationality, with technical and
rational formalism and with the logical and coherent application of the laws.
The discussion which has so far prevailed about children’s rights is one of legal
concern, often in opposition to the structural complexities and the social, economic,
political, cultural and ethical conditions. There has clearly been an attempt to
monopolise this in what childhood is intended to be, a kind of ideal childhood, the idea
of the global child. We can see this attempt, for example, in the analysis of the reports
produced by the various countries that ratified the CRC. There arises yet another
question which is that of the social and political appropriation by governments and by
organisations and institutions of the discourse on the rights of the child and the best
interest of the child.

CRC: harmonisation, uniformisation and standardisation

Although the UN proclaimed the Declaration of Human Rights on 10th December
1948, right back in the middle of the last century, the specific themes of childhood did
not feature. Only in 1959 did the General Assembly of the United Nations promulgate
the Declaration of the Rights of the Child.
The year of 1979 was also important because it celebrated the International Year
of the Child. A UN working group, proposed by the Polish government, began to
prepare a Convention on the Rights of the Child. However, only towards the end of the
last century, with the adoption by the UN, in 1989, of the International Convention on
the Rights of the Child (CRC), was the child considered to be a full citizen, complete

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with the capacity to be the bearer of rights. The CRC was promptly adopted and
followed by the Action Plan for the implementation of the World Declaration on Survival,
Protection and Development of the Child, at the World Summit for Children, in 1990.
The CRC is the most ratified of all the treaties on human rights and implies an
array of important changes in the social group of childhood, namely the substitution of
the traditional concept of participation, recognising for children similar rights to those of
adults. The governments that approved the CRC committed themselves to allow
children to expand their capacities in a context without hunger, without poverty, without
violence, without negligence or other injustices or hardships, respecting at the same
time their civil, economic, social, cultural and political rights. In this way, the treaty came
to endorse, as has already been stated, that the child be considered, for the first time, a
being in possession of rights and fundamental liberties.
UNICEF argued that all programmes to be implemented should reflect the
principles of the CRC, which would then become a reference, regardless of whether a
country had ratified it or not. The CRC became, therefore, a model of global consensus.
With the UN Convention, children’s rights were no longer an option, a question of favour
or mere sympathy. They are a source of clear legal obligations that the 193 Member
States (until February 2007) should implement. Thus, the change in national legislations
in order to endorse the CRC can be understood as a phenomenon of trans-
nationalisation of the juridical field (Santos, 1995). In fact, the idea, which has been
emphasised, is that the protection of children’s rights is not only within the exclusive
competency of nations, but has assumed a more and more “global” configuration. For
this reason, it is mandatory for the national states to follow the international legal
instruments, which regulate this area. Despite all this, it is necessary to recall the
weakness that characterises the principle of universality of a right and the values that it
defends.
We may, however, state that the CRC, associated with the process of
globalisation, has had important effects on contemporary societies, namely in the
promotion of two mechanisms. The first one is legislative harmonisation. The CRC is
the first international instrument which is legally binding and which incorporates the
complete range of human rights – civil and political rights, as well as economic, social
and cultural rights. In ratifying the CRC, national governments have committed in
protecting and assuring children’s rights and have accepted the responsibility, before
the world, of enforcing this convention.

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The main consequence of the normative character attributed to the CRC was that
of obliging all Member States to adopt an active standpoint, adapting their respective
legislation to the text of the Convention, in the sense of ratifying it. Its universal
character produced this effect because it provides the whole world with common
universal norms of values, in relation to childhood. We may then confirm that the CRC
rebuilt the legal space of each country, a fact that created a certain amount of
uniformisation. However, this is not free of conflict, argument or critical voices, mainly
on the part of some African2 and Arab3 countries which ratified the CRC, but pointed out
its western and hegemonic spirit. Indeed, and in spite of the universal character of the
Convention, certain countries have not made its approval possible, or have maintained
a reserved position, since some principles seem to be incongruent with their legislation
already in force.
Simultaneously, it is a mistake to anticipate of the Convention “the same
expectations found in internal legislations. By its nature, it is more difficult to assure
efficient cooperation and uniform application at the international level and, in the
absence of a supranational authority, demand action at various levels” (Duncan, 2001).
The other mechanism is uniformisation and standardisation regarding the
worldwide conception that children have rights, that they are subject to rights and to the
conception of what should be the “ideal childhood”4.
As Pilotti (2001) says, the dissemination of the CRC in the 90s of the 20th century
could be characterised as the circulation of a text without a context. The author also
argues that, in the face of this, the attempt is to contextualise the CRC within the
globalisation of the dominant ideas about children’s role in contemporary western
society. In particular, some vital processes of modernity are highlighted, such as the
functions and images attributed to childhood in the context of the consolidation of
individualism and of the State.

2
The Organisation of African Union (OAU – 1963), replaced by the African Union (2002), was the first
regional organisation to adopt its own treaty on the Rights of the Child in Africa. Mozambique adopted its
own Declaration of the Rights of the Mozambican Child in the 5th session of the Popular Assembly.
3
It should be noted that the effort of the Arab countries in relation to childhood protection at the
institutional level was started by the ministers of Social Services in 1979 with the social work strategy of
the Arab world. In the same year, the Arab League and the council of Social Service ministers proclaimed
the rights of Arab children in the Charter of Rights of the Arab Child, a series of rights aimed exclusively
at Arab children, excluding foreign children who live in Arab countries and/or the non-Arab minorities of
these countries.
4
To know more on this matter cf. Tomás (2006).

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One other question arises from this: “the parallel and simultaneous occurrence of
the same phenomenon in different countries does not make a global phenomenon,
unless the endogenous causes, different from one country to another, have among
them structural resemblances and share elements of common and transnational
causes” (Santos, 2001:92). Is that the case with children’s rights?
The CRC has given greater visibility to the way local, national, transnational and
international levels have looked at children’s rights, but it has also given a legal and
symbolic framework to the notion of childhood. Consequently, the way children live has
improved and they are now recognised as social actors, at least from the symbolic and
theoretical standpoint.
We can therefore consider the 80s and 90s of the 20th century as years of
intense codification of the rights of the child and the creation of social justice for
children. However, the legal, abstract and universal norms have not always
corresponded to social practices.
To J. Hilary, of the Save the Children Fund (2002), the world seems to be moving
away from the compromise to create a better future and the initially assumed
commitments are fading away. The author also emphasises that Somalia and the USA
have neither signed nor ratified the CRC, and that it is, for that reason, difficult to
validate the global agreement without the support of all the countries of the world.
There is a formal consecration of children’s rights, but the lack of priority given in
their implementation and promotion is obvious at nearly all levels. On the one hand, the
international conventions and treaties reinforce and legitimise the groundwork, as
documents ratified by governments. And, on the other hand, these same documents
have a weak impact on the child population, and their mere endorsement does not offer
guarantees of implementation, promotion or even security. Indeed, if there is no
supervision over the way in which each country promotes and guarantees the CRC,
besides the periodical writing of reports for the International Committee on the Rights of
the Child, it is easy to see that, in a decade’s time, we will still be only saying that it is
the most ratified international document. This mainly happens when there is some
discrepancy between the written law and its application. The basic rights to protection,
to provision and to participation are universally recognised for children. The problem
resides in the way they are, or not, put into practice.
There is a variety of difficulties and resistances related to the applicability of the
CRC after its ratification, mainly due to cultural mechanisms through which global ideas

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are received in local contexts. In addition, there are also cultural specificities in the
national process of incorporating the principles consecrated in international human
rights agreements (Pilotti, 2001), as well as the social, economic, political and legal
specificities of each country.
Beyond this, the application of some civil rights to children, in the CRC,
demonstrates that this idea is not universally accepted, due to the dual perspective
towards children. Actually, they are viewed as individual citizens, on the one hand, and
as dependent, on the other. This ambiguity defines the position of children, since they
are already invisible as individuals from the statistical and legal points of view and seen
as subordinate to adults.
We may confirm that children’s lives has improved significantly in recent decades
and that many changes continue to unfold; however, time and a profound change in
structural conditions and in social and economic policies are necessary in order to
promote and guarantee the rights of children. Besides, it is still important to transform
the authoritarian, paternalistic and discriminatory practices, which have characterised
the everyday life of children in the whole world. Thus, it has become imperative to follow
“the laws and agreements which have already been agreed on and ratified” (Rizzini,
2004:34).

Is the Convention a juridically inflexible and immutable text?

Nearly two decades after its birth, it is necessary to carry out a profound
reflection on and revision to the functioning of the CRC. For example, in view of the
improvement of its efficiency and its adaptation to the changes which have been
produced in contemporary societies.
Bissell (2001) considers that the nation-states that participated in and later
approved the CRC are the authors and guardians of the globalisation of childhood.
However, the question continues to be that of knowing if the nation-states, in the
framework of a hegemonic globalisation, really have the power or authority to act
according to the responsibility that is given to them. This seems to be a challenge
contained within the wider question of the sovereignty of the state. Another question is
that of knowing that if everyone defends the perspective of children as social actors, it
will make it into a collective belief.
On the one hand, children’s rights have been gradually adopted and applied in
different countries because states share the same interstate system and the political

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changes are in part conditioned by economic development. “[O]n the other hand, these
same reasons suggest that evolution varies significantly from one state to another,
according to its position in the interstate system and to the national society in respect of
the world-economy system” (Santos, 1995:22).
In spite of being considered a fact by the majority of western countries, the
conquest of a body of rights for children is still found today in many civilisational
contexts as being very close to the one which characterised the beginning of the road in
the construction of such rights.
Besides this, it is urgent to reflect on a group of concepts, present in the CRC,
which are vague, indefinite, ambiguous and highly contested (Nelken, 1998; Van
Bueren, 1998; Freeman, 2000).
When we refer to article 12, which upholds the idea of participation, the CRC
states that all children capable of formulating their own judgement have the right to
express their opinion on the subjects that affect them. However, there is some
ambiguity over the form in which, in the adult world, the question of participation is
understood. In upholding the capacity of discernment as a crucial ability for the child to
gain participation in its everyday world, this has opened a wide range of interpretations
that depend on the objectives of the adults, apart from preventing the access of the
child to the exercise of participation (Smith, 1997; Tomás and Soares, 2004). Moreover,
when the tendency is frequently to idealise and naturalise childhood and the social and
cultural world of children, it becomes necessary to deconstruct these premises, which
implies questioning their relation with adults as a limitation to their existence.
The same problem arises with the term maturity. Lucchini considers that
“maturity is defined by cognitive competences and empathetic capacities. The child is,
therefore, capable of anticipating what is expected of him or her and, consequently, is
also capable of deciding if he or she wants to or should respond to these expectations”.
(2003:12). The theme in itself is subjective and fairly constrained because it does not
consider the life contexts in which the child is to be found.
For Geiβler (2001:11), who bases his ideas on the principle of the indivisibility of
human rights, all rights in the CRC can create an individual complaint. Nevertheless,
they do not reflect the prevailing point of view in international jurisprudence, according
to which civil and political rights can be obtained by legal action, whereas the economic,
social and cultural rights may not.

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Another important issue is mentioned by Maehira (2004) as far as the actual

definition of the concept of a child is concerned. More specifically, the author wonders
which moment should be viewed as the beginning of a child's existence. This theme is
related to the debates over voluntary interruption of pregnancy, medically-assisted
reproduction and to the different religious and cultural questions which emerge among
countries and social groups. These were some of the issues which arose in the
preparation of the CRC and perhaps explain why there appears in the CRC “until when”
someone is considered a child and not “from the moment”, as in article 1 of the
document: “For the purposes of the present Convention, a child means every human
being below the age of 18 years unless, under the law applicable to the child, majority is
attained earlier.”
The CRC presents some more complex challenges, such as how to settle
different interests between countries. In the discussion on article 17, which deals with
children and means of social communication, the discussion was complex because the
“western” delegates defended a formulation that guaranteed the free flow of information.
According to them, this intended to fight against an attitude of censorship, as well as to
support the recognition that some means of communication were private (Hammarberg,
1999).
It is not clear whose is the responsibility of developing guidelines, only what the
nature is of these guidelines and that the state should encourage them. It is clear, once
more, the lack of precision of the Convention that “can be seen as an invitation to the
discussion of the objectives, instead of the prescription of exact methods of
implementation” (ibid: 25).
The organisational aspects of the CRC also deserve analysis and urgent debate.
The delay in the delivery of the reports of the countries to the committee is another
important issue. According to the report of UNICEF – Progress of Nations (1995), at the
end of February 1995, 35 countries were delayed, by more than two years, in the
delivery of their reports and 21 by more than a year. Ten years later, the scenario is the
same (GDDC, 2006).
The Commission of Human Rights – Working Group on Human Rights of
Children argued, during the 60th session, which took place in Geneva in 2004, that the
CRC had failed once more in the task of carrying out its mandate as the major body of
human rights in the UN. To the commission, the development was little and the
objectives achieved were few. In their opinion, this inadequate result is mainly due to

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the lack of interest demonstrated by all the states in the discussion of the situation of
human rights in the countries where economic, political and strategic interests are at
stake. This situation has led many NGOs and other observers to question the legitimacy
of the CRC.
They have argued, for example, that the fact of being a member of the CRC does
not imply regulating oneself by criteria such as the respect for and/or the promotion of
basic human rights. Therefore, many NGOs argue over the need for the reform of the
CRC, including new conditions to become a member. They warn that, in 2004, the
composition of the CRC makes it difficult to believe that the real intention of the
members is the promotion of human rights in the world, even more so when some of the
countries which have ratified the CRC have been accused by the NGOs of serious
human rights violations, among them Sudan, Nepal, the Russian Federation, China, Sri
Lanka, Zimbabwe and many others.
Besides the questions of interpretation, the CRC displays some weaknesses
which are also a part of the explanation of the difficulties in being fully promoted and
guaranteed, namely at the level of procedures (Tomás, 2000; Freeman, 2000; Gareth,
2005). Geiβler identifies some of these disadvantages: only a part of the members are
obliged to publish reports, which could lead to a loss of objectivity and the
“beautification” of the data, as well as of the analyses on the part of the states.
There is also a permanent tension between the 10 members of the Committee on
the Rights of the Child about the meetings of the committee which occur twice a year
and frequently only three to five reports are analysed, thus causing a disparity in the
total analysis of the reports.
Because of this, it has been suggested that the number of members be raised to
18, a proposal re-stated by the Commission of the United Nations for Human Rights
(Resolution 1998/76 of 22nd April). However, up to this date, no step has been taken in
this direction. The suggestions and recommendations made by the committee are not
legally binding, and depend only on the compromise adopted by the states and on
international pressure, the mobilisation of shame (2001: 9).
Freeman (2000) considers that, for the international rights of the child to have a
future, the CRC will have to be more intensively supervised; the Committee on the
Rights of the Child will have to have more powers and the reports produced by each
country are not enough, since they are a very weak device. As a consequence, other
measures of control should be considered.

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Despite the symbolic significance of the Convention, we should not forget a

historical invariable that colours the defence of the rights of the child: high consensus
and low intensity. As said before, it is the most ratified international document but the
lack of priority given to its application is a simple fact. In addition, the ignorance of the
CRC by citizens is often regarded as an obstacle to its accurate implementation and
recognition.
We then need to discuss the CRC, because after decades when very little has
been achieved, it is legitimate to ask if the expectations will ever be fulfilled. In other
words, it is necessary to ascertain whether the CRC and all the other legal texts, both
sectoral and universal, that give voice to the concern for the well-being of children and
young people and for their rights of citizenship (and, if it turns into International
Conventions on the Rights of the Child and Young People), would be obeyed or if, on
the contrary, would continue to be disobeyed. The response, as we see, can only tend
towards a certain frustration of these very expectations.
The worldwide situation of childhood is rapidly heading towards a state of frailty
as far as children’s rights are concerned, in spite of being one of the groups that is more
often referred to when themes such as inclusion, the improvement of their conditions of
life, the promotion of participation, among others, are dealt with. In fact, when the
participation of children is approached, social practices are profoundly distorted in their
nature because many times participation is confused with consultation and occasional
actions, with the appearance of participation, practices that are destitute of any political
value, often empty of significance. These are considered by Luhmann as false
emancipation (1985). Actually, this is like a trick, a false illusion of the “distinction
between superiors and subordinates, removing in this way the base of power from the
subordinate” (ibidem), a kind of advertising slogan which gives individuals the illusion
that they are participating, when in fact the results are null and void.

Critical Reflections
The worldwide situation of childhood is rife with problems, tensions and
incapacities that call for our reflection and intervention. The changes caused by
neoliberal globalisation have emphasised some of the problems of the children of the
world such as hunger, sickness, exclusion and the like. We are witnessing the
incapacity to guarantee children’s rights, in spite of the attempt to make a global system
for the sharing of values associated with childhood emerge, as made plain in the CRC.

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As emphasised before, this was the first binding international instrument where
obligations that the states should have towards children were presented and which
established an almost complete global consensus in relation to the basic rights of
children. Its centrality in discussing children’s rights is evident and the growth of interest
in children has increased because of it.
We cannot disengage the question of the CRC from the complex framework of
the development of modern citizenship, principally in the emergence of the concept of
the global or cosmopolitan citizen, an aspect that is intimately related with the promotion
and defence of children’s rights.
The Convention has emerged in a space and time of expansion of children’s
rights, especially during the period of internationalisation of human rights, in spite of the
process of preparation and drawing up having been very slow and tumultuous.
The CRC is a landmark in the history of childhood because it consecrates a
symbolic rearrangement of children’s place and because it places the child in the
position of an object for protection and, at the same time, a subject of rights. The great
hallmark was the change of paradigm of guardianship – from object of rights to that of
subject of law. It is this situation of considering the child as the subject of law that has
contributed to the change of ways of thinking and of national laws and international
instruments, which is still under way.
In relation to its nature, the CRC is a legal milestone of the utmost importance for
the signatory countries, which, on ratifying it, accepted the inevitable obligations to
adapt the legal principles and framework of their countries. In relation to substance, the
CRC is the symbol of the process of an awakening towards a more global
consciousness of the question of childhood, and to the way in which childhood and
children are considered. All in all, within the international panorama, the cause of the
human rights of children has gained new and more secure ground.
This new complex and revolutionary status has caused a real change in the
images and conceptions of childhood and children, and has also led to changes in the
legal tools of the majority of countries, mainly in the process still under way of the
rejection of interventionist models and the adoption of a legal package which is more
adequate to the reality of the CRC.
It is worth noting that the great innovation of the CRC consists of considering
children as subjects of law, a condition which emerges fundamentally out of the
recognition of their civil and political rights, challenges which imply deep social and

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cultural changes, new social and legal conceptualisations and, as a result, assessment
of the results, in the short, medium and long term. Nonetheless, it is necessary to
consider the importance of considerable critical thinking about the CRC with a view to
improving children's life conditions and effectively promoting their rights.

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