The Rise and Demise of Children's International Human Rights

Article excerpt

PART A--Introduction

Writing in 1973, Hillary Rodham Clinton proclaimed that "The phrase 'children's rights' is a slogan in search of a definition." (1) While this assessment may have been accurate in 1973, the intervening 36 years have rendered this comment obsolete. As my paper will demonstrate, the United Nations has now achieved outstanding success in promulgating a comprehensive set of international human rights for children. Sadly, however, these normative standards have not yet been translated into the delivery of tangible benefits and services to children on the ground in many countries. Part B of my paper will briefly trace the historical development of children's rights at the national level. Part C will survey the emergence of children's international human rights during the course of the 20th century. Part D will involve a contemporary stocktake or report card on the degree to which these international human rights have favourably impacted on children's lives. Part E will endeavour to identify those factors which are impeding a fuller realization of children's international human rights. Finally, Part F will articulate a "14-Point Plan" in terms of reform proposals designed to achieve more effective implementation of these international normative standards.

PART B--The Historical Development of Children's Rights Under National Law

(1) Early Maltreatment

The notion that children have, or should have, rights is of relatively recent origin. Historically, children were regarded as socially insignificant and were consequently maltreated. Children received no special care or protection by the State. The use of children as political hostages and as security for debts is recorded in Babylonian history. (2) Sexual abuse of children, child sacrifices and the infanticide of female and illegitimate children occurred in the ancient world. (3) As unwanted or weakling children were considered a drain on the family, they were frequently abandoned or sold into slavery or prostitution. (4) What we now consider to be childhood was thought to be an unimportant transient period of physical and mental immaturity culminating in the assumption of adult responsibilities at an early age. Even as late as the 18th century, children were commonly regarded as human chattels, economic assets or property of the parents (predominantly the father). Parents enjoyed an absolute right to their children's obedience, services and earnings, and full control over their person and property. (5)

(2) The Patria Potestas Doctrine

Until the 19th century, the ability of parents to mistreat their children with virtual impunity was attributable to the pervading and enduring influence of the Roman civil law doctrine of patria potestas, translated as paternal power or authority. This Latin phrase denoted the aggregate of those powers and rights which, by the Roman civil law, belonged to the father as head of a family in respect of his wife and children. (6) Originally it was of very extensive reach, entailing prerogatives of ownership in the children themselves and virtually unfettered paternal control over them. Western legal systems, civil and common law alike, adhered to a modern, mitigated version of patria potestas until the 18th century. (7) The puissance paternelle of the French Civil Code gave the father unchecked authority over his child's person and property until age 21.8 According to Sir William Blackstone, the common law regarded the father in most cases as his children's guardian. (9)

(3) The Common Law and the Parens Patriae Doctrine

Despite the support of the early common law for paternal authority and its rigours, in time the English Courts of Chancery relied increasingly on the perms patriae doctrine to extend benevolent protection to the vulnerable child. Literally translated, this Latin phrase means father or parent of the country, (10) and it was used to describe the power of the King or the Crown to act in loco parentis to protect the person or property of children. …