Child Rights and International Discrimination Law

Implementing Article 2 of the United Nations Convention on the Rights of the Child

Marit Skivenes, Karl Harald Søvig, Marit Skivenes, Karl Harald Søvig

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429665097
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Societies and states are at a crossroad in how children are treated and how their rights are respected and protected. Children´s new position and their strong rights create tensions and challenge the traditional relationships between family and the state. The United Nations Convention on the Rights of the Child was adopted unanimously by the General Assembly of the United Nations in 1989 and came into force in 1990. Article 2 places states under an obligation to accord primacy to the best interests of the child in all actions concerning children and to ensure and regulate child protection.

This book offers a comparative and critical analysis of the implementation of Article 2 of the United Nations Convention on the Rights of the Child. In order to examine how Article 2 is being implemented, it is essential to have a sound understanding of the obligations it emposes. The opening chapters will explore the precise content of these obligations in terms of the legislative history of the text, its underlying philosophy, its amplification by the United Nations Committee on the Rights of the Child, and subsequent authoritative interpretations of it by courts around the world. The book will then drill down into the conceptual and theoretical challenges posed by the very nature of the obligations and will offer in-depth exploration of the long-running 'rights v welfare' debate that has always presented something of a challenge in giving effect to children's rights. Contributors are leading academics in the children's rights field drawn from a wide range of countries and jurisdictions worldwide, including those with common law, civilian and mixed traditions. Disciplines represented in the book include law, psychology, political science, childhood studies, social work and anthropology.

By drawing together the various facets of Article 2 and analysing it from a range of perspectives, the volume provides a coherent and comprehensive inter-disciplinary analysis on discrimination and the rights of the child.

1 Discriminating against children

Katre Luhamaa, Marit Skivenes and Karl Harald Søvig*

Introduction

This book discusses discrimination of children and the effects of discrimination in different areas of life. The textbook definition of discrimination is that a person or a group of individuals are treated differently, in a negative way compared with others. Central to the non-discrimination discourse is a distinction between differential treatment and discrimination. While the former is acceptable and, in some situations, required, the latter amounts to violation. We can talk about discrimination when there is a certain legal criterion whereby the practice or treatment or rule is not justifiable. The prohibition of discrimination does not call for a boundless ban on differential treatment, but once the criteria of discrimination are met, the prohibition applies. As Fredman (2018) points out, central to the divide between differential treatment and discrimination is the discussion of what kind of justifications are acceptable for differential treatment and to what extent the concrete legal system accepts the concept of remedying the effects of discrimination. No one would recommend the same shoe size for all children. Even though this may be regarded as a form of equal treatment, it would obviously be a form of discrimination toward all children not fitting into the given size. This example illuminates how anti-discrimination is a matter of tailor-making, which in turn also explains why discrimination is such a complex issue. Even if the starting points are simple, actual assessments can be a challenging task since so many factors have to be considered. This leaves both the national authorities and supervisory bodies with leeway in terms of discretion, which often results in an assessment of whether a given measure is proportionate to the legitimate aims pursued.

The disadvantages of being treated differently may or may not be directly harmful for the individual or group of individuals to be labelled discrimination, but a clear example of discrimination would be, holding all things equal, boys are given more pay than girls for helping with chores at home. In Chapter 3, David Archard expands on the conceptual dimensions of discrimination. A key point in studying discrimination is that discriminatory actions involve some form of exclusion and may concern both material and non-material matters. The Convention on the Rights of the Child (UNGA 1989) has prohibited discrimination in one of its four main pillars, Article 2:

1 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.

2 States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

Article 2 in the CRC forms a self-standing right of non-discrimination on a wide list of prohibited grounds. Non-discrimination is also a general principle that covers all the rights included in the CRC.¹ Therefore, a wide set of characteristics are listed as a no-zone for discriminatory behaviour, including not only direct discrimination, such as that involving race and gender, but also indirect discrimination owing to, for example, parental beliefs. The topic of discrimination is additionally complicated as it often is expressed as a combination of factors (cf. CRC Committee 2007, para. 8) present in various aspects and times of life.

The facets of discrimination

Discrimination denotes treatment of a person that is less favourable in comparison with others on grounds unrelated to merit, usually because he or she belongs to a particular group or category. The principles of equality and non-discrimination are the foundations of international law and international human rights law as they are principles or rights enshrined in each and every global or regional international human rights instrument (see, e.g. Henrard 2008, paras 6–28 or Makkonen 2012, pp. 113–213).

The general substance of the right to non-discrimination as protected in Article 2 of the CRC has been analysed before: Abramson (2008) and Besson (2011) have commented on the legal meaning of Article 2, and Kutsar and Warming (2014) have edited a textbook on the implementation of Article 2. The theoretical basis of non-discrimination, although debated, is often positioned as dignity and equal respect toward every individual (see e.g. Smith 2011). Both of the concepts are also present in the first paragraph of the preamble of the CRC, which recognises the inherent dignity and equal rights of all members of the human family. Nevertheless, international and regional human rights, as well as national legal systems, are not consistent in their theory and practice toward defining principles and the content of the right to non-discrimination and have developed a wide range of typologies to address this matter. As the current book takes a global although selective approach into the implementation of Article 2 of the CRC, and the approaches of the various authors vary in regard to the substantive meaning of non-discrimination, the relevant theoretical concepts are generally sketched here to assist the reader.

Formal equality requires a consistent procedural practice with foreseeable results. Such an approach fails to respond to the whole range of differences present in society and may lead to unequal results (see e.g. the discussion in Fredman 2018). A wider approach to equality would require equality of results seen either as a more equal distribution of benefits, a better result for a specifically identified group of individuals or as requiring a certain outcome. Equality of opportunity forms an alternative middle ground for the two former approaches (Fredman 2011, 4–19). All of these approaches are often grounded in the concept of dignity, a principle and a right that also forms part of many current constitutions (see, e.g. McCrudden 2013).

A second and closely connected distinction used is differentiation between direct and indirect discrimination. Direct discrimination concerns differentiation explicitly on a particular ground, such as gender. While there is no uniform and universally accepted definition of “indirect discrimination”, it generally covers measures that are neutral on their face, but that have or are likely to have a disproportionate impact, without objective and reasonable justification, on a group distinguished by that ground (see, e.g. Collins and Khaitan 2018). While direct discrimination can be relatively easily identified in individual cases, indirect discrimination requires a more systematic approach, analyses the effect of the law or policy for a wider group, and is dependent on the legality of the justifications used. New approaches to affirmative action and prevention have blurred the line even further (see e.g. Lippert-Rasmussen 2018).

Structural discrimination has some similarities to the unintended effects of discrimination, and concerns a wide range of institutional social and organisational structures. For example, would the educational system with dominantly white, Caucasian persons being teachers and academic staff represent an institution that is structurally favouring white persons, and thus have an embedded form of discrimination in regard to people of colour? A much too well-known example of structural discrimination involves the Jim Crow laws in the U.S., which commanded the segregation of people of colour and whites in a range of public spaces, including schools, hospitals, and public transportation. There was no differentiation between races, but the result was the massive discrimination of people of colour.

Some of the distinctions mentioned above – direct discrimination and formal equality – are concerned with the concrete individual and their treatment. Others, such as indirect discrimination and equality of results, look at the effects of the treatment of a certain group and whether the cumulative effect for this group disadvantages them. This is a particularly relevant distinction when looking at cultural practices such as female genital mutilation or the effects of a lack of sanitary facilities on girls in school. The topic of discrimination is furthermore complicated by multiple discrimination, which is particularly relevant in regard to children who, by the nature of their existence, constantly face age and other types of discrimination, such as that based in gender, disability or ethnicity.

Remedy and duty bearer

Affirmative action involves measures and policies that aim to compensate for the long histories of discrimination faced by minorities and women. Various mechanisms are involved in affirmative action, and states have different views and approaches on how to best compensate for past discrimination. Often, young minorities and females may receive special consideration when seeking education or employment. Alternatively, some approaches institute a fixed quota system so that a certain percentage of students must be of a specific gender or minority background. Yet another approach, critical to quotas and special considerations, focuses on recruitment strategies and targets certain groups in campaigns and advertising. Recently, the CRC Committee has also stressed the importance of budget-related decisions in combating discrimination (CRC Committee 2016d, paras 41–44), and has recognised and stressed the role of business and the private sector in creating a wider discrimination-free environment and value system (CRC Committee 2013a, paras 13–14).

The core duty bearer of human rights is the state. The obligations rest with all branches of the state, being the legislature, judiciary and administrative organs. A statutory provision can as such be a violation of the right to non-discrimination. However, often, it is not legislation as such that is problematic, but rather how it is enforced – or not – that is the core of the matter. It should also be noted, as with many other human rights issues, that the state can also be held responsible for the conduct of private individuals or entities. The state is responsible for respecting – and securing – the right to non-discrimination. If more boys than girls are born in a country, the state may have an obligation to examine the causes of this situation, even though the driving force is the conduct of individuals (see Chapter 11 by Huawen concerning development in China). Many discriminatory practices are taking place within the family sphere. This leaves the state with a difficult task since it is also under a human rights obligation to respect family life. The right to family life does not prevent the state from intervening to target discriminatory practices, but in such situations, the state – and its supervisory bodies – must balance the interests that are at stake.

CRC Committee’s focus on discrimination

As mentioned above, the CRC Committee, in its first years of practice, introduced non-discrimination and Article 2 as one of the first pillars.² In General Comment No. 5, it emphasises that the non-discrimination obligation “requires States actively to identify individual children and groups of children the recognition and realisation of whose rights may demand special measures” (2003, para. 12). The Committee highlighted the “need for data collection to be disaggregated to enable discrimination or potential discrimination to be identified”. Addressing discrimination may require “changes in legislation, administration and resource allocation, as well as educational measures to change attitudes”. The Committee also stressed that “the application of the non‑discrimination principle of equal access to rights does not mean identical treatment”.

CRC Article 2 is unique in that “disability” is used as a prohibited ground of discrimination (see now also the UN Convention on the Rights of Persons with Disabilities (CRPD) Article 5 regarding quality and non-discrimination). In General Comment No. 9 on the rights of children with disabilities (2007), the Committee held that this explicit mention of disability can be explained by the fact that children with disabilities belong to one of the most vulnerable groups of children (para. 8). The Committee stressed that “discrimination takes place – often de facto – in various aspects of the life and development of children with disabilities”, thus emphasising that combating discrimination stretches beyond legislation (see also Chapter 10 by Boezaart). Additionally, the Committee paid attention to girls with disabilities and held that they are often even more vulnerable to discrimination because of gender discrimination. As seen in several contributions to this book, many questions relating to discrimination have a gender dimension (see for example Chapters 7 and 11).

Measures combating discrimination

In General Comment No. 9, the Committee introduced three main measures (para. 12):

1. Legislative tools (e.g. include explicitly disability as a forbidden ground for discrimination)
2. Effective remedies in case of violations; ensure that these remedies are easily accessible to children and their parents and/or others caring for the child
3. Conduct awareness-raising and educational campaigns targeting the public at large and specific groups of professionals with a view to preventing and eliminating de facto discrimination.

Even though these measures are given in the context of children with disabilities, they have the potential to be regarded as general measures of combating discrimination.

Several forms of child discrimination have existed (and have been targeted) for a long period. In recent years, both international and national institutions, as well as public movements, have taken a wider approach to discrimination and expanded the focus of types of discrimination faced by children as well as the different negative results of discrimination. Furthermore, the CRC Committee has shown the importance of proactive measures in budget planning in combating discrimination (CRC Committee 2016d, paras 41–44) and has discussed the effects of discrimination using the example of street children ...