1

The University of Reading

The Negotiated
“Child” in The United
Nations Convention on
the Rights of the Child

Joshua R. Lange
Dissertation submitted for the
Degree of MA (Res) in Children’s
Literature
Department of English and
American Literature
September 2009
 2

Contents
Article 1 of the The United Nations Convention on the Rights of the Child:.................3
Abstract........................................................................................................................4
Chapter 1: the Shifting Child of My Mind......................................................................5
Chapter 2: The Child of Human Rights.......................................................................15
The 1924 and 1959 Declarations of Children’s Rights...............................................16
Adjusting the Limits of Human Rights........................................................................19
Article 1 in the Travaux Preparatoires........................................................................24
Chapter 3: The Child of Philosophy, Religion, and Law...............................................32
PHILOSOPHY - The unfinished child............................................................................32
RELIGION - Cute little baby autonomous Jesus...........................................................34
Abortion: It takes a child to execute a child..............................................................36
LAW – The finished child............................................................................................39
Chapter 4: The Child of Society and Politics...............................................................42
Separation of society and child..................................................................................42
Separation of government and child..........................................................................44
Separation of parent and child...................................................................................46
Separation of family and child....................................................................................47
Chapter 5: The Child of Technological Innovation......................................................50
The present-future consumer.....................................................................................50
Clone baby - It takes a child to rectify a child............................................................52
Summary....................................................................................................................54
Chapter 6: The Child of Human Rights Stakeholders: an Article 1 Experiment..........55
Introduction................................................................................................................55
Methodology..............................................................................................................56
Survey design analysis...............................................................................................57
Results.......................................................................................................................59
Discussion..................................................................................................................61
Conclusions................................................................................................................64
Works Consulted........................................................................................................67
Endnotes:...................................................................................................................75
Endnotes:
 3

Article 1 of the The United Nations

Convention on the Rights of the
Child:

For the purposes of the present Convention, a

child means every human being below the age of
eighteen years unless under the law applicable to
the child, majority is attained earlier.
 4

Abstract

As ‘the child’ has been interpreted by several court systems to imply that

before a certain age or state of maturity the ‘state’ has control over the

human being but at another it doesn’t, the global form of Children’s

Rights has dawned, and has implications for various cultures with

working children, cultures with high religious/anti-abortion values, and

cultures that value parents’ and family rights. This MA (Research)

dissertation focuses on 'adult' conceptions of 'childhood', referring to how

philosophies, moral constructs, and Children' Rights instruments

construct 'the child' through negotiations of terminology which change in

time and space; this allows proponents of the doctrine to project their

chosen childhood(s) onto a society or group of societies through civil and

case law, then demand that those societies adhere to those legal

precedents 'in spirit'. But with so many definitions of 'a child,' can

decision-makers themselves agree on what is 'a child' 'not a child' and

'both a child and not a child' in examples which contradict the law? And

what is the point of Article 1 'the definition of the child' anyway if ‘best

interests’ and ‘maturity’ trump age at the domestic level of decision-

making and other Articles in the same Convention have different age

norms?1 A survey is taken by Children's Rights stakeholders and results

are reported in chapter six discussing these questions. One result

suggests that some people involved in Children’s Rights are so adamant

in their belief that a foetus is ‘not a child’ that they are willing to demote

the human foetus to a lesser status than a human clone. Negotiable

 5

terminology allows for decision-makers to bargain in individual

circumstances regarding the subject, in this case 'the child.' Then, two

seemingly contradictory conceptions of language - adaptability and

universalization - combine to make these instruments "living."

Chapter 1: the Shifting Child of My Mind

Before imagining that I would ever question the applicability of the CRC, I moved

for the first time from the USA - to Japan, where I first lived outside of the US; that is, the

US considered under the Westfalian system. With a background in management I moved to

Japan expecting a job teaching business-English. However, my Japanese employer required

that teachers teach all ages, including infants from 13 months old. I was terrified, not only

because of my lack of qualifications and experience in teaching – or even in the presence of

- young learners, but because of my own culturally-defined assumptions of legal liability in

regards to working with children. In my culture, for instance, the primary grades teacher is

legally restricted from touching the children. In the school I taught at in Japan, however,

touching children was expected of teachers – both from parents and the school

administration. Although I received acculturation and teaching young learners training from

the Japanese, this did not prepare me for the ‘culture shock’ of touching children. It was

through the experience of confronting what I knew to be fear and actually touching children

that I began to know more about children and question my own assumptions about a ‘single,

unitary conception’ of the child as a ‘victim’ in need of ‘protection’. Through observing

 6

some precocious infants and young children acquire language and respond in surprisingly

intellectual ways through several modalities my ideas of the child as a ‘passive responder’

were quickly replaced by a recognition of the child as an ‘active participant’ in its own

understandings and development.

This slight broadening of my conceptions regarding ‘childhood’ and ‘education’ led

me to learn more about Piaget’s ‘assimilation’ and ‘adaptation’ theory, as well as

developmental ‘stages’, but these stages revealed themselves to be insufficient in practice.

Although the active involvement of the very small child is an important concept to keep,

logico-mathematical stages were not useful in my context, as my Japanese employer

arranged children into classes according to language ability rather than age: so, for example

a 9-year old could be in a class with a 5-year old, with these two children progressing

similarly in grammar and vocabulary acquisition. In addition to this, the theory of Multiple

Intelligences (Gardner) which I first read about in college seemed to show in these

children’s diverse problem-solving and production capacities and the ways I conducted my

own practice, and included a caveat about culture. One 3 year old child’s ability to read

music, for example, was not addressed in either the ‘behaviourist’ or ‘developmental’

conceptions of the child, nor in ‘genetic’ theory - neither of the child’s parents were

musically-inclined. Although Piaget’s theories have great significance and are instructive

for the ‘normalised’ Euro/US child’s capabilities, reliance upon these theories can only

clearly identify logical ‘developments’ that occur consistently in a cultural context but are

only part of the human being’s intelligence array.

Hitherto I had only experience teaching adults, meaning those who paid their own

rent, so to speak, and had an economic incentive to learn a language – survival in Miami and

London – and weren’t so playful!2 And teenagers could also be well-behaved. They

followed their parent’s3 orders...most of the time, and had a high regard for ‘Sensei.’ One of

any age could easily buy large cans of beer or cigarettes in a vending machine on a street
 7

corner in Japan. I don’t think it was the police presence that kept the so-called ‘adolescents’

in check, however - there were very few police on the streets in Japan, another huge contrast

with the USA in relative terms (Lindner, US Police State). I think it was more about the

teenagers following the guidelines, which reflects a larger cultural and well-known ‘sense of

shame.’ So, in addition to the notion of ‘toddler’ and ‘infant’ that I had previously ‘known,’

and which was shaken up when teaching in Japan, the notion of ‘adolescence’ had also been

twisted and turned. On the opposite end of the spectrum, I had already encountered what I

consider 30 and 40 year old ‘adolescents’ –for example those who pee on cars for laughs

(see chapter six).

After completing some organisational research into the customer/consumer, parent/child

purchase-decision process for private-school tuition through Cambridge University ESOL,

and a lengthy reflection on Freud’s “Dora,” with much William Blake and Emily Dickinson

(and whoever else won’t be identified for brevity and memory) in my free-time, I finally

settled on the position that ‘the child’ exists within a multitude of interpretations outside of

him/herself, all of which can be neatly codified within adult narrative structures and their

complementary statistics. For instance with the working knowledge that 75-85% of youth

offenders reoffend (confirmed by statistics as 75% in the UK/Wales, Kate Akester, 2009,

and known since my own days as a youth offender) governments proscribe these pre-

determined “youths” before they’ve even paid their penalty. That is one neatly codified

child! But all of the so-called answers hitherto had only led to more troublesome questions

like ‘how can I teach content X when variable Y is indeterminable?’

Armed with some theoretical and practical understandings of the problems

surrounding children and educational theory, there would be no turning back to previous

conceptions of ‘childhood’ and it became very clear to me that to continue this investigation

properly I would have to look at perspectives which question everything about childhood,

rather than determining its biological or ‘natural’ state. With this in mind, and after more
 8

teaching practice with young learners in Germany, the MA(Res) in Children’s Literature

seemed appropriate as the next step in this investigation into the applicability of theory.

The context of the MA was my next fate, sitting alongside several others who, like

myself, seemed unprepared for the style and content of the method of inquiry used

throughout the course. Titles such as “What is an Author?” and “Peter Pan: or, the

impossibility of children’s literature” are complex pieces of literary theory that a novice of

theory in this area can easily get confused about. So, to garner a better comprehension of

these and other concepts covered on the course, the theory course professor (Dr. Lesnik-

Oberstein) amongst others used what could be defined as ‘inquiry into individual responses

to a given text or texts seminar-style’; seminar defined as a lecture with student participation

throughout. This style had the advantage of safeguarding her from putting her own positions

somehow in a ‘right’ or ‘correct’ position; however, the disadvantage of this method was

that many things were covered time and time again - and with limited face-time this

prevents examination of a wider body of literature with a connected speaker! But taking the

analysis a little further over the two-year duration of the course, and questioning my own

discipline I realised two things: 1) that even if there had been a more structured theory class

we would still be confined to the texts that were available to us or made available to us (as

individuals or a group), and 2) the reliance on accepted theories can only be a temporary

phenomenon. The concession I make here is that to prepare an individual for doctoral study

it is perhaps much better to ensure that that individual can think on their own, rather than be

persuaded in a limited context.

But wait! Can an individual ever think on their own? Or does the ‘limited face time’

and ‘texts examined on the course’ amount to yet another contextual constraint leading to

Rimbaugh’s conclusion “Je et un autre”? or Bruner’s “Narrative Construction of Reality”?

Even the personal pronoun their above denotes ‘more than one’, which is supposed to
 9

concede to conventional ‘his/her’ written English, yet paradoxically refines the language in

spoken and colloquial form both with native and non-native English speakers (Smith, pc).

The middle term of the line of reasoning seems to be the pronoun that remains in question:

as “you” and “I” can only really exist within this text, within this context, the context which

is put forth and is knowable to you and I, but at the same time unknowable to either you or I

outside of the context in which you and I exist – because, in fact ‘you’ can only ‘know’ the

text and context in which ‘you’ are exposed to and are a part of. Or, as Nietzsche

(1885:549) has observed, “’subject’ ‘object’ ‘attribute’ – these distinctions are fabrications

and are now imposed as a schematism upon all the apparent facts. The fundamental false

observation is that I believe it is I who do something, suffer something, ‘have’ something,

‘have’ a quality.” The interplay between the subject ‘I’ and verb ‘have’ creates a space

between the language where ‘reality’ must exist and therefore becomes questionable; this is

the contextual space where the fictional child (Rose) must reside, an empty space void of

reality but nevertheless containing meaning through silence (Foucault) or lack of signifier.

Contextualisation of the child is therefore no exception to ambiguous pronouns, and

during these MA musings, when I first read the words the UN Convention on the Rights of

the Child, it seemed quite odd that it was ‘the Child’ rather than ‘Children’s.’ In English, the

word ‘child’ is a noun, but it is used in the CRC as a subject-pronoun. To my ears, ‘the

child’ is a delexicalised, dehumanised version of ‘he/she.’ At least ‘he/she’ has a gender, a

sex to latch onto: but without a specific genderised pronoun to inhabit, ‘the child’ is born.

“Man” is man without an article, and to add a definite article in its current usage creates a

connotation of ‘the best at something’ , for example in the motion picture title “You the

Man.” Yet ‘the child’ is obliged to be ‘the’ – this makes him...or her a unitary, single

manifestation of the definite article, thus a complete contrast to “the man” or “the woman,”

in that “the child” is not referring to a single person, but at all ‘children’; ‘the child’ is now

the arbitrary object of a claim to universality as defined by age (as evidenced in the CRC).
 10

However, in the strictest sense of the language, the plural of ‘child’ is ‘children’ and the

absolute term is ‘all children,’ so ‘the child’ refers to an individual child yet connotes much

much more than “a” child. In addition, there is much spoken about ‘the girl child’

(Burman) rather than ‘girls.’ Who is this esoteric child? In which context does he/she

reside? Why and how is ‘she’ different from ‘girls’ or ‘children’? And most importantly, if

‘the child’ denotes a universal body of children, how can ‘the girl child’ be separated from

‘the child’?

‘The girl child’ is a prisoner of her context. She must embody both ‘the child’ and

‘the girl child’ simultaneously to exist – ‘the girl child’ cannot be ‘she’ for that is too

specific – yet the formulation of ‘the girl child’ relies on the exact same specificity as ‘she’

whilst succeeding to make the signified completely ambiguous. At least “she” requires

some sort of signified object. But the ‘girl child’ is a theoretical construction of ‘she’

defined by ‘age’ ‘gender’ ‘maturity’ and ‘the other.’ The girl child is ‘other’ because the

girl child is defined as something different from the CRC’s normalised ‘child’ (ibid) and

related to maturity, ‘girl’ in the English language usually connotes more immature version

of ‘woman,’ like in the 60’s pop song title “Girl, You’ll be a Woman Soon.” Nevertheless,

whether seen as immature or ‘other than’ the child, ‘the girl child’ is a product of (her)

environment, and only exists within the language of (her) Conventional context.

But before looking further into the problem of definitions in the CRC and its related

documents, as well as the conceptions of a sample of Human Rights practitioners, the

question of the definability of ‘the child’ in relation to ‘human rights’ has raised a

fundamental question to me about ‘rights’ in general: if children are indeed ‘human,’ why

do they need a separate and particular declaration of ‘human’ rights? And which

‘childhoods’ are decided upon? For example, is the baby clone considered a child? How

about the teenage mother with two kids? One debate which rages – especially in the USA

(one of two countries that haven’t ratified the CRC) – is on the foetus within the mother.
 11

The child then, when seen to have a ‘special status’ is considered a value item by the state,

at least economically (Mayo & Nairn) and socially (Burman). All these aspects had to be

explored as well as sex in light of psychoanalysis and its connection to ideas of

development; symbolic and linguistic relationships, penal institutions, schools, religious

communities and families!

And gender – but the discussion would never tire!

So, thinking about the audience, time and space constraints ie context,

Article 1 of the CRC– the definition of the child - is paramount. As a matter of fact,

it is the de facto principle of the Convention. Both Stainton-Rogers and Fottrell speak of the

“paramouncy principle” in which the rights of ‘the child’ take precedence over other rights

instruments. But without a definition of the child all references to the child are void except

through national or domestic law. Burman argues that the idea of the universal child cannot

logically coexist with a culturally defined child, and given the implications of a separable

‘girl child’, a socio-economically-neutral child, a desexualised child, or even a vulnerable

child, the universal interpretation of ‘the child’ is the key to the Convention’s legitimacy,

and if diffused arguably contradicts its paramouncy.

Using the Multiple Intelligences training that I have come to appreciate, I would

reckon that a deeper understanding of the implications of Article 1 can come about through

considering it from several angles and applying the knowledge to novel situations. Of

course that is in the context which I learned of teaching the same topic through several

modes of transfer: experiential or hands-on, foundational/existential, narrative/social,

logical/mathematical, and aesthetic (roughly aligned to the eight intelligences). To gain

what Howard Gardner defines as “genuine understanding,” I will look at Article 1 from

several windows: its legitimacy as law – as accepted by major religious and philosophical

doctrines; its philosophical, sociological and psychological underpinnings; its symbolic and
 12

linguistic relation to other Human Rights instruments; and its definitions in the context of

Human Rights stakeholders and emerging technologies.

But first the concept of “genuine understanding” must be defined. Gardner, in his

1992 book “The Unschooled Mind,” categorises human understanding into three broad

classes: the intuitive learner, the scholastic learner, and the disciplined learner. The

‘intuitive learner’ is the young child equipped with language/symbolic competency who

evolves serviceable theories of the physical world; the ‘scholastic learner’ is roughly aged

seven to twenty and seeks to master literacies, concepts, and disciplinary forms of the

school; and the ‘disciplinary expert’ can be of any age and has mastered the concepts and

skills of a discipline or domain to such extent that he/she can apply such knowledge

appropriately in new situations. The stages mentioned above do not necessarily replace one

another; in fact, Gardner (and psychoanalysis for that matter) cites an abundant amount of

research that demonstrates the intuitive “unschooled” mind working in adults! For example,

researchers at MIT and other well-regarded universities found that recent university

graduates were unable to solve basic physics problems when the questions were put in a

different form from that which they were formally instructed and tested for their physics

degrees. Likewise, students who could discuss in detail the causes of the First World War

subsequently explained equally complex current events in terms of “good guy-bad guy”

scenarios. In contrast, a disciplined learner who has a “genuine understanding” of

Napolean’s Code Civile can demonstrate how it has been structurally applied to the 1948

Universal Declaration of Human Rights without being told that it has, or the musical

prodigy like Mozart who can write a piano concerto at the age of seven.

The existing principle behind Gardner’s theory is that there are multiple ways of

knowing, which are biological potentials in the individual brain. These potentials, called

“Intelligences,” can be relied upon to solve problems or create products that are valued in a

culture. Multiple Intelligences Theory, which combines evolutionary progression with

 13

socio-cultural value systems, obliterates IQ type psychometric testing and gives equal

footing of the arts and athletic abilities to sciences and maths. Yet any psycho-

developmental ‘biological’ theory can be questioned, altered or even ‘deconstructed’

(Burman), and the categories do have a lot of overlap (perhaps a good thing pedagogically,

see Donaldson). In addition what’s valued in a culture is variable, the operative and most

ambiguous words being ‘culture’ and ‘value’. Nietzsche posits that enhancements of culture

are the conditions for all growth...which makes an “Auswahl” or selection possible at the

expense of a mass (1885:134). ‘Enhancements’ are based on ‘values,’ and take note here

that an “Auswahl” in Nietzsche’s sense refers to the Darwinian case, concept of the chosen

people, and prophetic idea of the remnant (ibid, notes). Two selected are theological values

and the third is scientific method, but all valued in a culture. Thus there are many tiers of

cultural ‘value’ that can be associated with ‘the child’ and childhood(s), and the writer

acknowledges that Multiple Intelligences is only one of several man-made theories which

influenced my own a priori assumptions coming into the task – some type of Christian,

Psychoanalytical and Marxist thought to name a few more.

The ideology of Human Rights rests upon the idea of cultural enhancement through

democracy (Cooper OBE). Nietzsche asserts that democracy is mostly the remnants of

Christianity and is a weakness (master-slave morality, ibid), but Human Rights is regarded

by professionals ironically both as a fundamentally democratic document and a concept

found in early Babylon and other monarchies/empires (Cooper ibid). Multiple Intelligences

also rests on disciplines of value. But these questions are well beyond the scope of this

paper. Analysis in this essay will focus upon fundamental questions surrounding Article 1

of the CRC: what is a child? Who and how is the child defined? How did article 1 become

the definition of the child? Which gaps in meaning have been negotiated between ‘states-

parties’ and why? What age range does the law see as, for example the infant, young person,

juvenile and what is meant by ‘majority age’? Are Children’s Rights compatible with
 14

emerging technologies and traditional values or is this binding universal law merely a trope

because it has no real accountability measures?

In a standard UK university report style (LearnHigher) integrated with Gardner’s

learning for understanding concept, the analysis will review the relation of Article 1 to the

literature of several of what Gardner calls ‘disciplines’ (foundational, narrative windows),

follow on with a questionnaire of people in the field (experiential, logical windows), and

finish with the discussion and conclusions (novel situation). The University of Reading has

given me a pre-defined scope of 1) a set word limit...20,000 2) a set relation to a set

topic...childhood 3) a set format...MLA and 4) a negotiated outcome...a Master of Arts

(Research) Degree. Perhaps all this is sounding very “universal,” and at the same time

“negotiated” but with a purpose – to indicate to the reader that this dissertation is like

Gardner’s educational philosophy of the child being connected to the constructed norms of

law, politics and religion in human rights: interdisciplinary but portrayed as a single, unitary

whole.
 15

Chapter 2: The Child of Human Rights

The perspectives of ‘knowledge’ about ‘a subject’ have been

questioned in modern contexts at least since Nietzsche. Many of what

Foucault refers to as Nietzsche’s ‘perspectives’ are at play in the power

relations which combat to construct what philosophers might consider

knowledge of the being, knowledge of human nature, knowledge of God,

&c. In Nietzsche’s terms an “invention” [Erfindung] - from Foucault’s

view when this historically-produced ‘child’ is constructed it is the result

of multifarious identities struggling against one another in some sort of

balancing act. Foucault, when referring to Nietzsche (121), speaks of this

construction as “the spark of two swords” - not made of the metal but

consisting of an effect of the touching metal. The presence of so-called

‘scientific knowledge’ would then have to mirror what emotionally-bias

human beings created, not a ‘thing on its own’ void of larger structures

at the fore. The ‘child’ as it is termed in Article 1 of the CRC, would then

from this view be a normalised negotiation of a power apparatus: an

exchange, if you will, of energetic power particles which produce a

singular child stuck in inertia – a unitary being in isolation, a rather

particular definition – for the sake of Human Rights. But as will be shown

in the following sections, ‘the child’ is not a single spark, as there are

many swords in the last century, notably the 1924 and 1959 Declarations
 16

on the Rights of the Child, which have chinked definitions that seem to

constrict ‘the child’ over time rather than liberate ‘it’.

The 1924 and 1959 Declarations of Children’s Rights

The ‘Rights of the Child’ was proposed by a non-governmental

organisation (Save the Children International Union) and adopted by the

League of Nations in September 1924 in a “non-binding resolution”

(Buck). It consisted of five points, and spoke of “backward” and “waif”

who needed shelter (Principle2) and a child who “must be put in a

position to earn a livelihood” (Principle 4). This was the first modern

International movement to empower children with human rights (Kuper);

but from another viewpoint, this document, aka ‘the Geneva

Declaration,’ puts an undisturbed definition of ‘the child’ as a passive

recipient of adult provision. For example, each Principle is written in the

passive, so that “the child must be given/fed/nursed/protected” by “men

and women of all nations”. Nowhere in the 1924 Declaration does ‘the

child’ act: ‘it’ is only given the means to ‘earn a livelihood.’ Yet the

Declaration includes “talents” as a definite pre-rights possession of each

individual child by indicating “its talents” (Principle 5) and therefore

supports the view given earlier that Human Rights are indeed

democratic; but in the 1924 Geneva Declaration that only applies to

“men and women” decision-makers:‘the child’ is defined as ‘it,’ neither

 17

male nor female. Nevertheless the supposed adults responsible for

implementation are defined as “men and women of all nations.” Thus

there is a spark: ‘it’ and ‘men/women’ are divisible into ‘the child.’

As definitions of ‘the child’ changed and particularly after the

events of WWII there was consensus at the United Nations that an

expanded Declaration was necessary, this time consisting of ten

principles and including various new provisions which can be seen in the

1989 Convention, e.g. the right to a name and nationality (Principle 3)

and the right to leisure and recreation (Principle 7), as well as the

recognition of ‘the child’ as a ‘him’. Whether ‘it’ and ‘him’ are two

different sparks or the same is unquestionable: they are both specific

relative to gender, meaning one is ‘genderless’ and the other ‘one choice

of two’ ironically ‘genderless’ still includes a gender in the signified.

However, “him” or “her” is often used in the English language as a

default pronoun for style purposes (Strunk & White), so it cannot be

argued that “him” was intentionally chosen to include boys and exclude

girls; furthermore Principle 1 prohibits discrimination against sex, so “He”

“him” “his” and “himself” should be interpreted as ‘it’ signifying a

universal ‘child’ even though the ‘girl-child’ is not mentioned and ‘he’

alone is empowered.

Although some parts of the new declaration evolved, others

replaced (Franklin). In the 1959 Declaration ‘it’ has a sex mentioned in

the first principle which means ‘it’ and ‘men and women’ is sparked into

‘he’. In the first Principle of the 1924 Declaration ‘it’ must be “given the

means for its normal development, both materially and spiritually.” In

 18

this sense ‘it’ became Principle 2 of the 1959 Declaration, so that ‘he’

was then to be “given opportunities and facilities, by law and other

means, to enable him to develop physically, mentally, morally, spiritually

and socially in a healthy and normal manner and in conditions of freedom

and dignity.” Comparing these two statements, some similarities such as

the term normal and development occur. But the 1959 Principle seems

to expand the vaguely defined 1924 definition to include ‘physically,

mentally, etc.’ which categories all have their own definitions of ‘the

child’ which is quite separate from the ‘developmental psychology’

referred to in the drafting documents (Burman). All these categories of

development are clarifying by limiting the definition of ‘normal

development’ to fit within pre-defined spheres. “Well, we’ve covered all

the possible bases” signatories might have said in 1959, but this hasn’t

augmented the 1924 definition at all, it has only included some more

areas of influence in a seeming attempt to be democratic... “in conditions

of freedom and dignity” which would be difficult as the underlying

democratic principle would require that each ‘nation’ be ‘free’ to

determine ‘what’ a child is, as does the CRC.

The 1959 Declaration preamble regards the undefined ‘child’ as

needing “special safeguards and care”. From the perspective of this

document only the International policy-making body knows what such

‘special’ care is, as it plays Moses and “calls upon parents, upon men and

women as individuals, and upon voluntary organisations, local authorities

and national Governments to recognise these rights.” Once again ‘men

and women’ are invoked as a separable entity from ‘he-the child,’ but
 19

now the scope has broadened (or narrowed) by degrees and further

asserts that the child “by reason of his physical and mental immaturity,

needs special safeguards and care, including appropriate legal

protection, before as well as after birth.” This God-like position of

righteousness is reiterated in the preamble of the CRC as “before and

after birth” which will be touched upon later, but can the exact same

linguistic constructions such as “before and after birth” and “normal

development” carry the exact same meaning in the 1959 and 1989

documents? As ‘the child’ is represented specifically ‘before and after

birth’ in both documents, all of the 194 nations which ratified the CRC are

able to allow abortions under the CRC definition of Article 1, which

defines a child as “any human being below the age of eighteen years,” a

human being being defined as birthed. And if ‘any’ wasn’t a catch-all

phrase, Norway assured in the Working Group sessions that the preamble

paragraph 6 of the 1989 CRC included “his or her” rather than only “his”

as it was originally written (Detrick, guide). Perhaps looking at the

influence of some of the other Human Rights instruments to Article 1 of

the CRC will help to clarify, as Dr. Jenny Kuper suggests these documents

“generated an impetus towards a binding and more focused treaty

specifically on children”.

Before the forerunner to all contemporary UN Conventions

structured similarly to Napoleon's Code Civile, the 1948 Universal

Declaration of Human Rights, Human Rights texts centered on ‘acts’ (e.g.

forced labour, genocide), but alongside the creation of the UN, there was

a movement which sparked the specifying certain groups within the

 20

population, identified by their ‘temporary status’ (e.g. refugee, prisoner)

or by their ‘essentially permanent condition’ (e.g. women, disabled).

These definitions, along with the critique (in the “North”) in the 70’s as a

“concept in search of a definition”, which supported the advent of a

specific Convention on the rights of ‘the child’ (Detrick, commentary).

Adjusting the Limits of Human Rights

The CRC immediately sets itself apart from other International

legislation with the disclaimer “For the purposes of the present

Convention” (note: according to UNICEF p.11 “the present” should be

interpreted as regarding this sole instrument). But there are several

other instruments in addition to the 1924 and 1959 Declarations which

have been used successfully in age-related Human Rights abuse and

discrimination cases and therefore merit consideration. UNICEF proudly

proclaims that, until they ratified the Convention, most societies had no

comprehensive consideration of the laws defining childhood. Article 1

thus “provokes” a legislative review of definitions of ‘the child’ in each

colony. Oops, I mean “State Party.” These State Parties have negotiated

several other treaties which have been called upon in several cases

regarding definitions of the child, sometimes used cooperatively,

sometimes superseding other legislation, and are indeed a large part of

the CRC’s brilliantly vague yet definitive formula.

In my view, adjusting limits to definitions is how the Human Rights

movement keeps expanding whilst maintaining their principality. Take,

 21

for example, the critical beginning point of this modern collective action:

the International Labour Organisation’s (ILO) 1919 treaties regulating

minimum ages and night work of children and young people in industry.4

This age-related text has expanded into Article 32 of the CRC,

respectively. Taking the view that regulating the work of “minors”

reflects the fact that young persons are vulnerable and incapable - in

need of ‘special care and protection’ - perhaps the three main

International Human Rights instruments will give some insight into how

these phrases are connected with their brother and sister instruments,

despite no clear definition of ‘the child’. Article 10 of the 1966

International Covenant on Economic, Social and Cultural Rights (ICESCR)

suggests that employing children in working conditions which are “likely

to hamper their normal development” should be punishable by law. This

phrase ‘normal development’ can be seen in both the 1959 Declaration

and CRC and requires an ‘undeveloped’ concept of ‘the child’. Article 24

of the 1966 International Covenant on Civil and Political Rights (ICCPR)

gives special protective rights to “every child” “without any

discrimination.” Lastly, and most clearly connected to the vulnerability

and incapability of ‘the child’, Article 25 of the 1948 Universal

Declaration of Human Rights (UDHR) - suggests that “motherhood and

childhood are entitled to special care and assistance” (in the context of a

standard of living), thus making mother and child inseparable,

vulnerable, and in need of the State’s assistance to meet a prescribed

social norm. In a 2009 seminar I attended at his chambers, Human Rights

expert Jonathan Cooper backed up this view by saying that its “not the
 22

state which undermines children, its private individuals.” From this view,

the state becomes the protector, out of a necessity it seems, of a

defenceless human being set apart from his or her circumstances.

Although these documents are commendable, none of them gave a

specific definition of ‘the child’ after they had given special rights to this

group. In the ICCPR Article 3 it uses “set forth in the present Covenant”

again meaning ‘this instrument only’ – to refer to these rights pertaining

to “men and women.” Otherwise ‘peoples’ are mentioned, which is child

inclusive, and ‘the family’ is considered natural and fundamental. The

ICESCR Article 3 mirrors its sister the ICCPR and refers to “the present

Covenant” and “men and women.” The UDHR boldly states in Article 1:

“All human beings are born free and equal in dignity and rights. They are

endowed with reason and conscience and should acts towards one

another in a spirit of brotherhood.” And again in Article 2 with the phrase

“Everyone is entitled to.”

This “Everyone” must include children. The beginning of the

preamble is clear “equal and inalienable rights of all members of the

human family,” but we do not know if ‘everyone’ includes the moment of

conception. Therefore an adjustment to the language through a new

Article (1 of the CRC) was necessary. The view was taken to begin at

birth, but leaving the ability for reservations in the Travaux

Preparatoires. Of course the Committee on the Rights of the Child tries

to persuade countries to withdraw their reservations on these matters,

but the language of Article 1 is left without a beginning anyway as “had

the Convention taken a position on abortion and related issues, universal

 23

ratification would have been threatened” (UNICEF). There is a

negotiation taking place, as ‘universal ratification’ is determined by its

principle proponent to be the aim of the CRC.

That is a complex negotiation, as the CRC is a binding document,

whereas the Declaration is not and was signed by far less members. But

by making the concessions to remove the beginning (and by inserting

Article 41 which states that nothing in the CRC should affect provisions

found in other national or International law), the CRC’s implementation

has paid off quite well. In Roper v Simmons, for instance, the US

Supreme Court reversed its previous position and declared that it was

unconstitutional to impose capital punishment for crimes committed

while a person was under the age of 18, including ‘evolving standards of

decency’ and referring specifically to Article 37 of the CRC in their

arguments. Across the pond in Mabon v Mabon, an 11 and 13 year old

sought to be represented separately due to different views about their

Guardian, and Lord Justice Thorpe made it clear in the Court of Appeal

that the CRC required the UK Courts to take a less paternalistic approach

to ascertaining children’s wishes and feelings; therefore the children’s

views were given due consideration as a direct result of the evolving

ideas found within what Jonathan Cooper has called “living instruments”5.

Regional treaties also make mention of children and their ‘special

needs’, such as Article 7 of the 1948 American Declaration on the Rights

and Duties of Man, Article 19 of the 1969 American Convention on

Human Rights, and Article 18 of the African Charter on Human and

Peoples’ Rights. The 1950 European Convention on Human Rights is the

 24

weakest of these treaties, looking at ‘children’ in specific circumstances

(e.g. Article 5(1)(d) and 6(1). In contrast, Article 7 of the 1961 European

Social Charter gives several specific protections on under 18’s right to

work and ‘special’ protection from exploitation. Even in Article 33 of the

“anti-Zionist” (see preamble of same) 2004 Arab Charter on Human

Rights defines children as part of a ‘special’ group in need of assistance

to realise their rights, but who these children are is not defined, therefore

rests on the highest law – which is not Shari’a, but the CRC, partly a

Zionist creation?

The only general regional child-focused treaty currently in force is

the 1990 African Charter on the Rights and Welfare of the Child (ACRWC),

which actually gives a definition of ‘the child’ before rehashing previous

terms like ‘best interests’ ‘special protection’ and ‘the family.’ The

definition of ‘the child’, found in Article 2 states “For the purposes of this

Charter, a child means every human being below the age of 18 years.”

Unlike the adjustable CRC, the ACRWC leaves no room for reducing the

age of majority below 18. This is a significant point, considering the

European Defense Agency’s recent estimate that by 2025 ‘the average

African’s age is projected to be 22,’ and by 2025 ‘the average European

will be 45 years old’. Inevitably in some countries the norm will be that

children under 18 years old will be running their own households (Kuper).

The absence of individual complaint mechanisms in the CRC can to

some extent be remedied by ‘childs rights’ cases which refer to the

CRC’s provisions, as the Roper and Mabon cases mentioned above

demonstrate. These cases show that the public embarrassment and

 25

international pressure created by treaties can indeed influence the

domestic courts. But this does not mean that the CRC and ACRWC

definitions of ‘a child’ are alone in influencing age-related Human Rights.

The first prosecution initiated by the International Criminal Court, for

instance, concerned a military leader from the Congo charged with

‘conscripting, enlisting or using children under the age of 15,’ and due to

the robust supervisory mechanism found in the ECHR (Fottrell) – keeping

in mind the ECHR is the weakest treaty for children (Kuper) - there have

been many cases in the context of Europe which have been heard by the

court, such as T and V v UK where the Court found a violation of Article

5(4) when children were convicted of murder at the age of 10 by the

discretion of a politician, and in A v UK where the Court found a violation

of Article 3 in which the court overruled a UK law of ‘reasonable

[parental] chastisement’ when considering a child beaten by his step

father, ruling that the UK law was ‘insufficiently precise to protect

children from maltreatment.’ In contrast, the Court found no violation of

Article 3 in Costello Roberts v UK when a child was beaten with a slipper

at school. The decision was largely shaped by age and understanding of

the child who was 8 years old (Akester). Thus there is an ever growing

body of international and regional Human Rights instruments that can be

relied upon in the modern democratic courts of law, including those that

make no specific definitions of the child. Returning to Nietzsche and

Foucault, the ‘spark between swords’ seems to be the actual human

being constantly negotiated between definitions of ‘the child’ written in

the International Law and determined through the domestic law.

 26

Article 1 in the Travaux Preparatoires

Some would logically say “my child is no definition.” But that’s

exactly what happens when statutory norms are created in the courts of

law. Concepts of ‘the child’ are culled together, called upon from various

bodies – both governmental and non-governmental, and organised into

quaint definitions that appease the majority of parties. This is actually

what the Travaux Preparatoires or ‘Working Papers’ show in the making

of the CRC. Discussions and Reservations of Article 1 were not the

beginning of the Article debates; however, the conception of a negotiated

‘child’ figure on any ratified universal document creates a new beginning

– or an alternate beginning – which also means an ending – of the forms

of knowledge which previously ruled, thus Article 1 is the hinge on which

the entire concept of Universal Children’s Rights depends.

I will begin with how the ‘democratic child’ was sparked in Detrik et

al’s commentary on the Travaux Preparatoires (referenced in this

section by page only). Page 107:

Considering that the child should be fully prepared to live an individual life in

society, and brought up in the spirit of the ideals proclaimed in the Charter of

the United Nations, and in particular the spirit of peace, dignity, tolerance,

freedom, and brotherhood,

Have agreed as follows:

 27

This small section of the 1988 adopted text contains many connotations

of power. For example ‘ideals’ which are placed on the child by society,

just as well the child is ‘brought up’ in the passive sense (suggesting the

child is incapable of bringing up and needs some actor to bring him/her

up); and interestingly ‘the spirit of’ is different from ‘the spirit.’ If one

says in discourse “I have the spirit” it connotes an entirely different

meaning than “I have the spirit of [something].” That something must

always be named, and therefore reducible to an ‘object’ or ‘complement’.

In accordance with Freud, this ‘object’ would certainly have an ‘aim’. The

‘spirit of’ an ideal: an ideal placed upon the imaginations of society

through collective reasoning, or as Norman Fairclough might argue

constraints of the social order partly through language (Language and

Power). Whether ‘freedom’ and ‘brotherhood’ are concepts that can

liberate societies and in this case – ‘individuals,’ is true or not is

debatable. Vygotsky’s social cognition theory suggests that the efforts of

individuals are not separate from the kinds of activities in which they

engage and the kinds of institutions of which they are a part. If this

theory is accepted, ‘brotherhood’ takes on a wider meaning to include

‘the institution’ as well as individual people and their collective activity,

and ‘liberte’ in the Declaration becomes reductio ad absurdum as the

‘individual’ is only a result of ‘brotherhood’ (i.e. institutional best

interests), an appendage rather than a separate term. Thus ‘best

interests’ from this view can never be of ‘the child’ as each individual’s

‘best interests’ cannot be separated from the power and interests of the

state.
 28

But the power of placement also has its meanings (Bhaba), and in

the final draft the CRC reads, not in the last paragraph of the preamble,

but in the 7th, and replacing ‘brotherhood’ with ‘equality and solidarity’ .

In addition to being read as ‘replacing’ the terms, one might transfer the

power of words in a different way, perhaps ‘evolving’ or ‘appending.’ But

the fact still remains, the ‘brotherhood’ is lost, missing or deleted;

‘equality and solidarity’ (proposed by UNESCO, p.111) have trumped our

dear ‘brotherhood of man’, as John Lennon called the phenomenon in his

famous song “Imagine”, and with equality and solidarity come new

connotations – or not?

‘Egalite’ is a political term which identifies each human being as

having ‘equal’ status; but far different than the current welfare-state of

the UK or the free-capitalist trend in the US, this vision of ‘equal rights’

before the law is not exactly different from the word ‘brotherhood’

because the concept of one implies the other – indeed, this ‘altruistic

question’ burdens the landscape of scientists as to how humans differ

from other mammals. The notion of ‘brotherhood’ in my reading implies

an ‘altruistic’ concept. Perhaps to Joseph’s brothers (the Tribes of Israel)

the concept of ‘egalite’ and ‘brotherhood’ would differ significantly, given

their particular belief system. In this instance, all of Joseph’s brothers

were angered by their brother’s favour with the father, and conspired

against him to kill him; again seen in the murder of Abel by Cain. From a

psychoanalytic (Freud: Totem & Taboo) perspective, the brothers killing

the strong one has a physical purpose – to get the girl. But taken to the

societal level, it means ‘justice’ and ‘peace’ in the conditional realizable.

 29

Thus, the periodic and notional concept of ‘egalite’ is similar to

‘brotherhood’, a term which in my conception includes ‘sisterhood’

‘friendship’ ‘kindness’ ‘childhood’ amongst others; but in my enemy’s

conception the term brotherhood might include: ‘muslim’ ‘believer’ ‘non-

believer’ ‘republican’ ‘childhood’ and so on; ‘equality’ might be restricted

to a caste, financial grade or even physical appearance. Given this

phenomeno-political reality, taking democracy too seriously can actually

hamper free thought. As Nietzsche (1886: 345) warns: “everyone desires

that no doctrine or valuation of things should come into favour but that

through which he himself prospers.”

Both versions of this preambular paragraph in my opinion have a

French Revolution tone: “Liberte,Fraternite, Egalite” and it is no

coincidence that the ‘original’ ‘final’ version of the CRC was in English

and French. It is interesting to note that both political systems of these

countries currently provide a welfare-state type of capitalist system, with

good economical circumstances to support the particularly ‘ideal’ rights

found in the CRC (Burman). Of course high tax revenues from a long-

established trade market helps. Perhaps this is one reason African

countries wrote their own charter, due to the wide – and widening – gap

between the textual ‘ideal’ and the lived ‘reality’, sometimes referred to

as the rich and poor, developed or developing North and South (ibid).

Although the mere concept of ‘human rights’ is itself contradictory

in that they are called ‘democratic’ and yet have supposedly existed in

totalitarian monarchies such as Babylon (Cooper), the concepts found in

the preamble give particular attention to adherence to the

 30

situational/conceptual norms promulgated by the West, so to speak, and

little room for review. This is a self-negation of applicability in that it

universalises ‘the child’ based on a norm of democracy but leaves little

room for interpretation outside these sociological/philosophical norms. It

is the powerful parties elected by the people that control these

‘democracies’, not the people themselves, and when ‘the spirit’ is called

upon it is argumentum ad populum, or the defense of the argument

based on what the public wants (Watts) and these ruling parties rule

partly with this language (Fairclough). The ‘norm’ of democracy can be

upended, replaced, or adjusted in such a sense that ‘equalite’ looks

nothing like it does today. For example, within the last two centuries the

US Constitution only regarded white men as human beings and it wasn’t

until a war was fought and Amendment made that women and blacks

were given voting rights: liberty or death. The ‘ideal’ spoke to a specific

reality (or non-reality) of equality, just as the adoption of a law, and

indeed both the case law and civil law systems conjure up text like

‘original version’ which already sets up the Article 1 as existing in an

‘original’ form. But even the first draft, as Fairclough argues, must exist

within a certain set of consensual and pre-defined socio-linguistic power

relations before further drafts are formulated.

At this point the democratic child might scream: “Give me liberty or give

me death”6!
 31

The democratic child is then (after much deliberation)

democratically defined as being ‘under the age of majority’ or ‘eighteen

years from date of birth.’ So I shall use the term “post” to clarify that

this version of childhood in Article 1 is not “considering that the child

should be” anything, but giving the particulars that “the child is”. The

post-ambular child is 18, the pre-ambular child is a value item. There is a

clear distinction pre- and post-ambular, a gap, a spark between two

swords, which puts the ideal of freedom onto the ‘rights’ of a restricted

definition of ‘under the age of eighteen.’ That the life which should be is

“individual”; this can be interpreted as widely as ‘equality’ but both

terms are contradictory in that ‘equality’ would indicate that an age norm

such as 18 is reasonable to define a child, whereas ‘individual’ connotes

ideas of inequality or difference. The fact that these two words are used

conjointly in the same sentence is an indication that both ‘age of

majority’ and ‘eighteen’ are not mutually exclusive in Article 1, as the

preamble sets the tone “in the spirit of” vague political jargon.

During the drafting sessions Argentina entered a declaration that

“Article 1 must be interpreted to the effect that a child means every

human being from the moment of conception to the age of 18” (53).

This, along with much of the contention surrounding the language used

in Article 1, obviously has to do with the abortion issue, which will be

looked at in more detail in the religion section of this paper. The reason

that the above statement was rejected is that it considers a foetus a

‘human being,’ and according to Alston there is no precedent in

International law to consider an unborn child a ‘human being’ (ibid).

 32

However, when looked at in more detail Argentina’s statement is

contradictory. On the one hand, ‘Argentina’ (meaning the spokesperson

for the Westphalian state) demands with the word ‘must’ that Article 1 be

interpreted to include ‘the moment of conception’ which is an

immeasurable point in time. On the other hand, Argentina demands that

the measureable age of 18 be the end of childhood. Interestingly, the

‘age of majority’ in Argentina is 21. Nevertheless, the contradiction is

clear: “we demand a measurable end to something that has no

measurable beginning”. But how could the ‘moment of conception’

depend on the state apparatus to define?

The 1980 Working Group had agreed on this wording of the Article:

“According to the present convention a child is every human being

from the moment of his birth to the age of 18 years unless, under

the law of his state, he has attained his age of majority earlier.”

Of course there were objections to this wording, specifically related to

the point of origin, and using the reasoning that this is contrary to the

legislation of many countries. Morocco put forward a proposal to

terminate the issue of beginnings by requesting that “from the moment

of his birth” be removed, which was adopted (115).

So the 1980 Working Group finally adopted this child:

“According to the present convention a child is every human being

to the age of 18 years unless...”

In this sense, the negotiated ‘child’ is no longer a concept which has a

beginning, to use the words of the preamble ‘before or after birth’. The

‘child’ is now determined by a ‘majority’ age, an upper-limit, without an

 33

origin but with an existence which is only defined by its end point. Thus

‘the child’ is abstracted from an origin and is no longer a ‘real’ or ‘living’

human being, but an infinite metaphysical creation of language. So what

other drafted versions were there in 1988 when the Working Group

rejoined to democratically renegotiate the concept of the child?

“According to the present convention...”

The observer from Finland proposed: “a child means every human

being who is a minor and has not attained the age of 18 years” (118)

This version of Article 1 is significant because it switches the focus

from ‘majority’ to ‘minority’. What is the difference? Isn’t it only a

question of “attained” vs. “not attained”? The ‘age of majority’ cannot

exist without its binary identifier ‘age of minority’ and it can be logically

assumed that so long one is of the minority one cannot be of the

majority. Yet there must be more to the Finland minority statement.

Looking back into the 1980 Working Group text, Finland withdrew a

proposal which identified ’the minor’ as a child who has not: obtained full

legal capacity, become emancipated, can determine his or her residence,

can enter into contracts, can dispose of certain parts of his or her

property. Therefore “age of majority” doesn’t catch many possible

scenarios such as emancipation from parents by the court at an earlier

age than the state’s majority.

Looking at the 1980 proposal the observer from the state of Finland

had a clear conception of ‘minor’ which places ‘the child’ in a wide

variety of legal specifications determined by his or her ability to function

independently, for example in a social sense. ‘The child’ from this

 34

viewpoint is no longer ‘a minor’ when he or she has 1) been given the

power or 2) takes the power to make certain bureaucratic decisions

concerning his or herself or property. In the case of an ‘emancipation’ by

the court, the ‘child’ is given the power to make ‘majority’ decisions. In

the case of ‘determining his or her residence,’ the ‘child’ must already

have the power to make these decisions: it is not afforded them by a

court, it is already within the ‘child’s’ ability and likewise with the

entering into of contracts. The corollary of this is that ‘the minor’

becomes someone who is unable to determine his or her residence

because they lack the power to do so, or someone who has not been

given the power to make decisions about his or her property. The point

is that the issue of ‘minor’ is a major consideration of power which was,

after all, left out of the CRC.

‘The child’ was before interpreted as ‘it’ or ‘him,’ but the delegates

at the UN felt it necessary to claim an objective day for each and every

child to become an adult: eighteen years, or the age of majority. And I

thought that birthdays were purposeless! However, as with much

rhetoric...I mean law...there is a qualifying extension to this statement.

Article 1 says that if the ‘applicable law to the child’ considers the

‘majority’ age earlier than eighteen then that person is not a child. The

second part of the Article thus nullifies the first part, or at least reduces it

to absurdity rather than qualifies it. Under what conditions does the

“eighteen” rule supersede the “age of majority”? It cannot, as the Article

is clearly stating that the Convention applies to “every human being

under the age of eighteen unless...majority is attained earlier”.

 35

The key term here is the disclaimer ‘unless,’ which makes the ‘age

of majority’ the exception which disproves the rule. And in fact, the ‘age

of majority’7 is appropriated in vastly different ways across cultures. For

example, in the Isle of Man the majority age for males is 14. In Chile, the

majority age for females is 15, and in Scotland the majority age is 16. So

for these countries (and many others) the ‘eighteen’ rule is voided

automatically. The age of majority shouldn’t be confused with ‘age of

license’ or ‘marriageable age,’ however, as these terms relate to specific

“permissions” for ‘minors,’ whereas the age of majority is “recognition”

by law that a minor has become an adult. John Locke claimed “we are

born free as we are born rational, not that we have actually the exercise

of either; age that brings one brings with it the other too”. All of the

"living instruments" such as the UDHR, ICESCR, ICCPR, and CRC are

written in the spirit of an ideal, a way of structuralisation or order, an

idea of rationality.
 36

Chapter 3: The Child of Philosophy, Religion, and Law

PHILOSOPHY - The unfinished child

Locke’s philosophy that “we are born free” is the basis of much of

the modern Human Rights movement (UDHR Article 1, for example), and

indeed the formulation in the CRC Article 1 of ‘age of majority’ has much

to do with a state’s self-determination concerning a fixed period of

childhood. Isaac Watts, one of Locke’s contemporaries and a man of the

cloth, said this: “let us consider, that the great God, our common Maker,

has never given one man’s understanding a legal and rightful

sovereignty to determine truths for others, at least after they are past

the state of childhood or minority.” Both of these assessments of

children’s capacities construct ‘the child’ as incapable of making

informed choices based on lack of experience or reasoning power. From

this view, the child is “becoming” as opposed to “being” (Hendrick). But

these English philosophers of the 17th and 18th centuries only follow

what Aristotle conceived two millennia before. Gareth Matthews

comments “the common defining feature [in Aristotle’s writings] is that

the child is ‘unfinished’ relative to a human telos.” But not all English

slates were blank in this time period, as the revered poet John Milton

suggested “the childhood shows the man, as morning shows the day”

and Wordsworth famously declared “the child is father of the man.” Both
 37

views are developmental, however, in that the ‘unfinished’ child is either

conceived as a work of creative construction or merely a work of the

realisation of a prior yet fixed potentiality (Archard). Kant suggests that

a child must reach the age of 10 before “reason appears,” and Mill talks

of “mere children” who are “incapable of being acted upon by rational

consideration of distant motives”. One of the pre-readings to the MA was

“Emile,” in which Rousseau focuses not on what the child

developmentally lacks, but rather that the child has his or her own ways

of “feeling, thinking, and seeing.” But this view, similar to Howard

Gardner’s Multiple Intelligences theory, cannot easily be measured.

These holistic philosophies of education are not as popular as the

developmental view in regards to Article 1 of the CRC, of course, as

Piaget’s (1927) idea of a ‘finished state’ – or fixed point of adulthood -

seems to coexist practically with democratic governments that have to

produce metrics for the public and organise large groups of young people

into schools.

Modern philosophers such as Neil MacCormick, when discussing

Children’s Rights, point to the fact that there are at least two major

accounts of what it means to have a right – an “interest” (or “benefit”)

theory, and a “choice” (or “will”) theory. In the ‘interest’ theory, the

child would be seen to have fundamental interests which require

protection, and in the ‘choice’ theory, the child would be seen to be

incapable of exercising his or her free will unless protected by the

signification of ‘rights.’ Article 1 of the CRC could then be distinguished

 38

as a ‘benefit’...at least to those with 17 years and 364 days or younger,

and critically those who benefit socially and politically.

The child ‘liberationists’ argue (see Farson and Holt) that children

possess the same agency as adults, therefore removing any distinction

between interests and choice. These philosophers appeal to the

arbitrariness of age in relation to the child’s qualifying capacities, and as

Archard succinctly writes, claim that “the denial of children to adult

rights is associated with the modern tendency to maintain an artificial

separation between the worlds of adulthood and childhood, condemning

children to a false and oppressive condition of infantile dependence and

vulnerability.” This view is not alone in confusion over the child. Joel

Feinberg refers to ideas of ‘value’ and ‘significance’ in Human Rights

meaning that there is added value in the imputed status of one who can

demand some form of treatment, and other opponents suggest it is

‘cruel’ to mistake childhood and rights by granting fundamental liberties

before he or she possesses the capacities to be the guardian of his own

life (Locke, found in Archard). And Rousseau (287) points specifically to

the child’s reasoning power and egocentrism: “Our first duties are to

ourselves...thus the first notion of justice springs not from what we owe

to others but from what is due to us...If you talk to children of their

duties, and not of their rights, you are beginning at the wrong end and

telling them what they cannot understand, what cannot be of any

interest to them.” It seems that interests of defining the child in relation

to rights are in the eye of the beholder, and both concepts of the cruelty

of the child’s life –Hobbes, or natural rights – Rousseau, hinge on the

 39

child as ‘being.’ Aristotle’s ‘becoming’ seems to be the ‘normal

development’ ,‘evolving capacities,’ and ‘age of majority’ written into the

CRC. Whether definitions are from parents or priests, poets or

philosophers, one is awestruck about the paradox of ‘the [necessarily

unfinished] child.’

RELIGION - Cute little baby autonomous Jesus

Jesus is not alone in defining children “let the little children come

unto me.” Yet there are many forms of Christianity and other major

religions which...as International Human Rights Movement might

suggest...take the gospel to an extreme, especially when harmfully

connected with other scripture. I must agree with the moderates on this

point. Much like the CRC the Bible is age-specific when referring to the

child Jesus. In Luke Chapter 2, for example, Jesus faces down his parents

with self-determination based on a capitalized (theological) Father in the

temple courts at 12 years old,8 but after that “he went down to Jerusalem

with them, and was obedient to them.” This is an extraordinary piece of

verse in that the narration posits Jesus at once asserting his individual

right to expression (cf. Article 12 CRC) and remaining within the norms of

his community to be “obedient to [his parents]”. So, in the final step of

the story Jesus is confined to his status as a separable ‘child’ who must

follow the direct orders of ‘adults’. Today in the USA the ‘age of license’

for drinking is an emphasized 21, and in some sectors of Christianity in

the country grape juice is given at children’s communion, whereas in

others 'minors' of the same age are given wine. What is assured is that
 40

religion and religious practices are not clear of the age-debate, and

obedience to adults is indoctrinated in every major religion. If you’ve

read Herman Hesse’s “Sidhartha” you might picture the 13 year old son

of Buddha running away from father – the image of God, perhaps?

When referring to modern Christianity the movie parody “Talledega

Nights” sums up different conceptions of the King of Kings and Lord of

Lords conveniently: the race car driver dad prays to “dear Lord little cute

infant baby Jesus with your little diapers in the hay.” When his wife

interrupts the prayer and shouts “Jesus was a grown man!” the film’s dad

replies “I like the Christmas Jesus the best”. Immediately the two young

boys and the da's friend join in picturing Jesus with culturally-relative

superhero costumes...back to an adult Jesus. The humour is quite

revealing about how the culture constructs ‘the child’ through religion:

democratically.

Speaking of disciples, democracy, Hollywood, and Article 1 of the

CRC, St. Peter’s Church be codified and erected the ‘rock’ of the Christian

faith cannot be understated in relation to its universal definition of ‘the

child.’ The Holy See has been allowed to participate in important

decisions concerning the definition of ‘child’, when in fact Vatican City is

not even recognised as a state (HR Quarterly). In the CRC Working

Group discussions, the Vatican reserved the right to assert that

Children’s Rights “should be compatible in practice with the particular

nature of the Vatican City State.” The Vatican’s official position,

attributed to H. E. Mons. Jean-Louis Tauran, starts off with an

argumentum ad hominem, an argument based on the children’s Rights

 41

documents themselves: “It is important to begin by noting that

international juridical instruments solemnly proclaim a fundamental right

to life,” (Article 6 CRC) and a Holy See delegation intervened at the World

Summit for Children in 2001 with their number one priority as “The

promotion and protection of the right to life as well as the human dignity

and rights of the child, before as well as after birth [CRC Preamble, Para

9].”

Abortion: It takes a child to execute a child

Article 1 raises many questions about the beginning of life, as well as what power, if

any, the “Bearing in mind that....the child needs special care...before as well as after birth”

found in the ninth paragraph of the preamble to the CRC has. It only makes sense that this

paragraph identifies the child in the context of the unborn foetus, unless one would want to

define ‘the child’ as a thought or idea before conception9. But regarding the influence

religious perceptions of ‘the child’ have had on Article 1 are expressly dealt with in the in

Detrick et al’s guide (100-120) and commentary (53-65).

Basically, Human Rights activists argue “Under Article 6(1) the child has the right to

life and States Parties are obliged under Article 6(2) to ‘ensure to the maximum extent

possible the survival and development of the child’” (SPUC), and religious lobbies –

notably the Catholic Church and Islamic states – reserve their ‘right’ to interpret the ‘right’

of defining ‘a child’ according to a certain “structure”(Kuper), both in respect to beginnings

at conception thru to birth, and endings of in respect to a potential mother’s ‘age of

maturity.’

The recognition that ‘a child’ means a born baby is a huge contention point of Article 1

because it definitely isn’t “compatible in practice with the particular nature of the Holy see”
 42

(HR Quarterly, 478). The existence of early teen unmarried pregnancies is an abomination!

For some, that is. The Supreme Court of the USA, for example, has given the right to

consultation for an abortion without parental knowledge in the famous Belloti vs. Baird

case. The Massachusetts government required ‘parental consent,’ and this was contested in

the Supreme Court, with the decision ‘for’ the minor’s ability to approach a judge secretly

for the medical procedure of executing a foetus. This is called a ‘judicial bypass’

(Guggenheim). I am led to wonder why Article 1 didn’t incorporate its own ‘bypass.’

Executing a living human foetus – certainly! But non-religious and religious parties

might both maintain that it is merely an embryo or a set of non-constitutive particles of

matter. Anti-abortionists maintain that the negative emotional effects of an abortion far

outweigh the economic burden, especially for what are constituted as minors. Nevertheless,

the Supreme Court famously gave woman the right over her own body in 1973 Roe vs.

Wade, saying that it was part of her “liberty,” and then distinguished this for minors in the

Belloti case in 1979. But the Catholic Church symbolically increases its numbers with each

new baptism. The positive side to the issue of abortion is that there is a sense of religious

order for both causes: on the pro-choice side, there are not “immature” state-reliant mothers

burdening the economy with babies, and on the pro-life side there is an acceptance of all

life, whether deformed, burdensome or cruel.

The cute little baby autonomous Jesus then becomes a shared reality, an enormous

Code Civile in our hearts and minds, the universal child, the image of God, the Christian

nation – which is only one conception of many in the historical and contemporary sphere

who apparently universalize ‘the child’ whilst allowing for ‘national’ and ‘cultural’

differences to persist. There are many fabrics of the Muslim religion as well, some of which

are clearly articulated in the proposed reservations to Article 1 of the CRC. Iran, for

instance, asserted it “reserves the right not to apply any provisions incompatible with

Islamic laws and effective internal legislation.” Syria, in like manner, attempted to promote
 43

the reservation of Islamic law - which Finland objected to, saying it was of an “unlimited

and undefined character.” The claim to substantiate these two proposals for Islamic Law

was determined to be non-substantive (HR Quarterly). Furthermore, these objections aren’t

enforceable through the CRC, because the CRC doesn’t permit derogation (Art. 51). But as

with the Syrian reservation to Article 1, the limitations of the beginnings of a childhood are

undefined.

What is a foetus and how is it socially and historically constructed and executed10,

especially since the innovation of physiologically harmless abortion practices? This Article

1 question is perhaps one of the most hotly debated in socio-political and religious discourse

(Fleming and Hains). On this issue in particular lobbyists have been influential, but as the

cases of Missouri and Massachusetts show, ‘freedom’ is extended to the ‘minor’ when the

court deems it is “in the best interests of the child,” taking into account the AGE and

MATURITY of the child. This is a significant point when considering the logic behind the

Supreme Court’s decision in the Missouri case is entirely different from the Roe v. Wade

decision in that under the Constitutional Law, the Roe v. Wade decision set a precedent for

the interpretation of “liberty” to extend fully to the adult woman. But the Missouri case –

decided by those whose mandate it is to uphold the Constitution – contradicts the

Constitution’s determination of ‘parental rights’ by allowing one ‘under the age of majority’

to make such “emergency” decisions for themselves to terminate a foetus even to the extent

that a young female can side-step any parental knowledge of her abortion if the court deems

it is in her best interests. But as the decision was five to four, there is still much left up to

debate before the US ratifies Article 1 without serious reservation.

Philosophical and religious discourses exist within the ideologies of ‘the child.’ But

it is not clear whether these inform the legal definitions of ‘the child’, or whether it is vice

versa. Somebody might argue “it is always the underlying beliefs which support a view”

and indeed it is: nevertheless, exactly which domain these beliefs fit into is a cause and
 44

which is an effect is a matter of interpretation. The American constitutional ideal of a

“separation of church and state” is an illusion, as is a question of a separable ‘child’ from his

or her community and their belief systems. As the example above of the 12 year old Jesus

shows, even in sacred texts it is possible for politics and the law to inform religious practice

concerning the applicability of age-defined norms; nevertheless, the anti-abortion stance that

the Catholic Church takes is not an argumentum ad fidem, but an argumentum ad hominem

- based not on the testimony of scripture but on the CRC’s own words: ‘every child has the

right to life’ ‘before as well as after birth’. The stance the Catholic Church takes is therefore

political, not theological. ‘Life’ begins at conception rather than at birth, they argue, but as

the story of Jesus shows, all conception is predestined.

LAW – The finished child

“What goes on four legs in the morning, on two legs at noon, and on

three legs in the evening?” – the riddle of the Sphinx

As there are no clear beginnings of the law absent of religion or

modern democracy absent of Greek thought, it might seem that religion

and philosophy have created the definitions which inform the law. Yet in

many ways philosophical, religious, and legal discourses intermingle to

define ‘the child’ in Article 1, much as the distinction between man and

boy can signify the same object. Returning to Watts, “Let us consider,

that the great God, our common Maker, has never given one man’s

understanding a legal and rightful sovereignty to determine truths for

others, at least after they are past the state of childhood or minority.”

Even in 19th Century England there is a distinction made between

 45

‘minority’ and ‘childhood,’ and in the 1924 Declaration we encounter the

‘waif’. In today’s legal discourses, there are many definitions of ‘the

child’ used. But are the ‘infant’ ‘minor’ ‘child’ ‘juvenile’ and ‘young

person’ the same? To what extent do they overlap and why was ‘the

child’ and ‘majority age’ decided for the CRC rather than another term?

For example, inconsistencies the definitions used in English Law:

• The Minor – this is the [binary] opposite of major, or ‘majority age’

• The Infant – this includes any person up to the age of 18, and is

also the general term used in contract law to denote the same (Cheshire,

et al)

• The Juvenile – this is any person who has not yet attained his or

her 17th birthday (Pain)

• The Young Person – this is any person between the ages of 14 and

17 (ibid)

• The Child – a person under the age of 14 (1969 Children’s Act), or

any person who is not over the compulsory school age (1944 Education

Act), or any person under age 18 or over 18 and subject to a care order

(1980 Child Care Act)

Although the definition of “minor” is consistent over time, as it

always reflects the opposite of another term, it is clear from the

definitions above that “the child” changes over time and within different

contexts. For example, if the compulsory school age changes, then ‘the

child’ does too. This definition links the concept of ‘the child’ directly

with schooling, which supports Ariés claim that the rise of the child came
 46

alongside the rise of compulsory schooling. But is not ‘the child’ also a

‘young person’? The “young person” can also be defined as “juvenile”

and “a child” and “an infant,” and there is no distinction between

‘juvenile’ and ‘minor’ until the mythical year between 17 and 18.

However, ‘the child’ cannot coexist with the defined ‘person’ until he or

she reaches 14. Once ‘the child’ becomes ‘a young person’ he or she

must only wait to become an ‘adult,’ which in my conception can also

signify a ‘young person.’

CRC Article 1 is so apparently clear that ‘a child’ is “below the age

of eighteen years unless...majority is attained earlier” that it fails to

recognise the person who is over 18 and subject to a care order. Of

course now this person’s special rights would fall under the 2006 UN

Convention on Disabled Persons, but between the years of 1989 and

2006 this person didn’t exist on UN paper. The UK Law, by recognising

persons as ‘the child’ who are over the physical age of majority (18), but

under the societal-functional age of majority completely disentangles the

fixed being of physical age found in the CRC.

What about the spaces or positions of the child (Rose, Bhaba) in

these commingled representations of life stage by age? Is there a real

age-continuum of vulnerability or need for special status, or is it what

Burman calls an 'esssentialism of the child' based on political strategy?

Perhaps the metaphor of man’s life stages in the Sphinx’s riddle,

“morning, noon, and night,” is more obvious than the legal definitions of

‘the child.’ This simple definition, although vague, can also substantiate

itself in place of Article 1 ex minus probabili ad magis and say 'morning'

 47

means 'first out of three physical stages of life.' The domestic working or

voting years could be 'noon' and retirement as 'night' and it would still be

interpreted functionally in the stakeholder domain, just as the seemingly

specific CRC Article 1.

The origins of 'the child' in Western philosophy, religion, and law

have been important to consider before discussing the results of my

experiment on Article 1, but psychology is the most important because it

has proclaimed itself a clinical science based on biological evidence

(Burman), and substantiated itself through 'normalized' psychometric

measurements which are inaccurate and culturally biased towards

middle-class American whites (Gardner). As can be seen through legal

decisions based on institutional interest through the politics of

definability, ‘the [biological] child’ is separable from parents, family,

government, and society altogether.

Chapter 4: The Child of Society and Politics

“No political theory is adequate unless it is applicable to children as well

as to men and women.” (Bertrand Russell, 1971: 100)

Separation of society and child

 48

If the many perspectives founded upon philosophy, religion, and law nurture doubt

about a fixed childhood, sociological discourses will raise the bar. One set of perspectives

sees ‘the child’ as a product of ‘socialisation’ (Kollar), or of societal value-orientation

patterns laid down in childhood and not significantly altered during adult life (Parsons).

Another sees the socially constructed child, who has appeared elsewhere in this paper

(James & Prout, Jenks) and is semantically rather than causally located and unable to be

substantiated, so there are ‘multiple realities’ (Schutz) of the child which has a direct

bearing on setting specific values in a universal way. Another theory sees childhood as an

autonomous community with its own ‘Children’s Childhood’ (Mayall), having its own folk

law, rituals, and rules (Opies). Yet another view places ‘the child’ alongside the woman and

disabled person as a minority group (Oakley), and attempting to democratise the

stratifications of society universalises the child. ‘The child’ can be seen as a manifestation

of uniform features of particular societies (Qvortrup), and therefore defined structurally

(Frones). Finally, Nick Lee argues that contemporary personal, cultural and institutional

experience of children and childhood is informed by what appears to be a conflict between

possessing them and seeing them as self-possessed. These sociological perspectives can be

summarised in a term suggested by Barbara Rogoff: ‘the child’ can be seen as ‘biologically

cultural.’

As with philosophy, religion, and law there are vicissitudes of sociological thought on age-

measurable human capacities. Initiatives like the May 2002 ‘UN Special Session on

Children,’ where 400 young people were given space to communicate their views to

decision-makers, attempt to give ‘the child’ a voice, yet some children expressed

dissatisfaction at the close of the proceedings because their views were not expressed in the

outcomes (Kuper). Any view that ‘the child’ is a ‘cultural product’ or ‘societal

construction’ upends the universal age norms predicated by Article 1, and reasserts

Rousseau’s natural philosophy found in Emile and the Jewish11 religious philosophy found
 49

in Luke 2 which places ‘the child’ at the crossroads of freedom and restriction. This gray

area is not found in Article 1 as exclusion of ‘majority age’ and ‘over 18’ is the aim, but

elsewhere in the CRC is found in the general term “maturity.”

The modern conception of childhood minority, which dates in Europe from the

sixteenth century and is partially envisaged in Emile, in the words of Bob Franklin “stresses

the innocence, frailty, and dependence of children, forcefully ejected children from worlds

of work, sexuality and politics – in which previously they were active participants – and

designated the classroom as the major focus for their lives”12. Nevertheless, in all societies

at all times there are many social and institutional forces affecting ‘children’ through both

International and domestic legislation, and this happens from the beginning of their lives

(Vygotsky). Despite criticism, both Aries and De Mause historically show that conceptions

of ‘the child’ are malleable, and that in the 17th and 18th centuries Europe ‘children’ were in

some respects scarcely distinguishable from adults - similar to what can be found in many

‘developing’ countries today (James & Prout).

The ‘developmentalists’, on the other hand, see the formation of children as natural

rather than social phenomena; and that part of this ‘naturalness’ directly affects ‘the child’s’

maturation – the keystone to domestic practice of age-interpretation of the CRC. Jenks,

Morss, and Burman have been at the forefront of criticising this view of the natural stages of

human development, but as Jenks argues: “psychology never made the mistake of

questioning its own status as a science, and in the guise of developmental psychology it

formed a pact with medicine, education, and government agencies.” So there is an

identifiable relation to Piaget’s stage model and the desired norm of “the age 18” in Article

1, and a reflection of the cultural products viewpoint with “the age of maturity.” Aspects of

both of these seemingly opposite perspectives are legalised in one sentence.

But only these views are ratified in Article 1. What of ‘the child’ as a retrospective

of ‘adult’ pathology (Freud)? It seems that this view is more reflective than adaptive. In
 50

other words, the purpose of the CRC is to provide guidelines for the future of ‘the child,’

such as in determining ‘appropriate’ ages for armed conflict, rather than determine why the

armed conflict began. Perhaps the key to successful socialisation is an oedipal amnesia: a

causality that goes much deeper into society than any UN Convention or indeed anything

that can said, as solving the Sphinx riddle was only the beginning of the Oedipus story.

Separation of government and child

The above snapshot can be found on the top of the homepage of

the Children’s Rights Alliance for England (CRAE) website at the time of

writing. Apparently, through the use of a quote and the placement of the

quote alongside the charity’s name and at the most prominent section of

the page, CRAE is linking their vision and mission with two political

constructs: ‘a child’ and ‘human rights.’ The oversized quotation marks

seem to indicate “this quote says it all.” But analysed a little further, this

quote questions the whole purpose of CRAE’s existence, and highlights

the difficulty in separating discourses of ‘children’s rights’ from ‘human

rights.’ During the drafting sessions of the CRC, for the first time at the

United Nations many NGO’s such as CRAE were invited to directly

participate (likewise in the ‘Special Session’). But looking at CRAE’s

position as seen on the website heading above, and thinking about

Bertrand Russell’s statement, why do children need separate rights than

those of adults?
 51

The question is far from being answered. Some researchers have

gone as far as suggesting that separable ‘children’s rights’ are

detrimental to the child’s welfare. From this view, presented in the US by

Richard Farson in the 1970’s, treating children differently from adults is a

classic form of discrimination that denies children “their right to full

humanity”. In other words, “childhood” is merely a social construct

fabricated to facilitate adults’ needs (Guggenheim). Boyden suggests

that the increased interest in children as separable from adults results in

“ever more poignant” images of childhood innocence being conveyed by

the adult world. Boyden (referring to Sommerville, 1982) states that the

major tenet of contemporary rights and welfare thinking is that

regulation of child life should give priority to making childhood a

carefree, safe, secure, and happy phase of human existence. She

upends this view by showing how theories of ‘pollution’ underpin modern

strategies of child protection, and how the norms and ideals of a “safe,

happy, and protected childhood” are “culturally and historically bound to

the social preoccupations and priorities of the capitalist countries of

Europe and the United States.”

Political philosopher Laura Purdy fears that these capitalist

democracies are leaning towards the liberationist viewpoint mentioned

earlier, which runs counter to and conflicts with the familiar ways of

valuing children that arise with parental love and which are secured by

parents’ possessive feelings towards their children. Have NGO’s replaced

parents to become the new middleman between ‘the child’ and the state,

or is this just better informed and more democratic practice?

 52

Separation of parent and child

The state must separate the ‘child’ from ‘the parent’ before giving

the child special rights (Lee). This would be impossible if one interprets

the language of the 1948 Declaration “motherhood and childhood” as a

combined and inseparable pair. The CRC, however, makes no

paternalistic distinction in the first Article between ‘man’ and ‘other.’ It

refers to ‘the child’ who is everyone under 18, or as decided by the court

as the age of majority, and ‘the present Convention,’ meaning the CRC is

formed by parties currently holding the power to make political decisions

on behalf of their constituency. This leaves only two parties in Article 1:

‘the child’ and ‘the state,’ or as seen from the inclusion of NGO's, state

apparatuses (Althusser's term). Later in the CRC (Article 14), the parents

are afforded “the rights and duties of the parents, and when applicable,

legal guardians, to provide direction to the child in exercise of his or her

right” to ‘freedom of thought, conscience and religion.’13. Note that

"when applicable" has innumerable interpretations. The ECHR is

instructive in that under Article 8 (1) a parent can reinforce their

opposition to a care order by arguing that it will infringe their rights to a

family life. In the UK context, this means that “the domestic courts can

now only make a care order if, in addition to the requirements of the

Children Act 1989, the provisons of Article 8(2) of the ECHR be satisfied”

(Fortin). Article 1 of the CRC separates ‘the child’ from ‘the family’ by

pertaining to ‘every human being under the age of 18.’ This human
 53

being belongs to the state – not the parents, and it is primarily for this

reason the United States has not ratified the CRC.

Separation of family and child

By looking at the laws concerning non-parent adult relationships

and ‘best interests’ the US parents rights doctrine can be summed up in

three principles: “First, we can’t know what is best for a child without

taking the time and effort to find out. Second, the time and effort can be

considerable. Third, even after all this, we can never be certain”

(Guggenheim). It begins with the concept that parents are in a better

position than anyone else to make the proper decisions for their children,

and recognizes the potential dangers of empowering judges to make

decisions on which persons can have contact with the child. This is seen

in the views of the state concerning grandparent’s visitation.

Grandparents can exert their ‘right’ in court to have visitation, which is

brought on by their desire, not the child’s. The grandparent who has

been denied access to the child can take the parent to court, but a child

is unable to do the same – thus an adult interest motivating the court;

the child is left as a separable entity, the ‘subject’ of the dispute which is

funny because it seems the child is more the ‘object’ of the dispute. It is

not left to the child whether granny can come over, neither left to the

parent: the child is politically separated from the bloodline and then

reconnected through the injunction of Parens Patriae. The parents and

the child are seen as one in a nuclear sense, but the fact that the
 54

grandparents (whether known or unknown to the child) must assert their

blood connection to the child shows that there is a political separation of

the non-parent family members. This necessary separation is then

brought together again through the law. Now the non-parent family

members suddenly have ‘rights,’ and the parents don’t, in many cases

after thousands of dollars in court costs and attorney fees, only to obtain

from the state a relationship that could not have been severed except

for the doctrine of parental rights.

I have recently experienced this exact separation, along with the

Florida court not taking into consideration the views of the child (CRC Art

12): the court preferring parental rights to family rights, and US law over

International law. I was denied guardianship of my seven year old

nephew due to a disagreement with his parent over his best interests...a

parent who still has her parental rights but is serving a three-year prison

sentence for ‘severely neglecting’ this child; secondly due to the costs

which would be incurred by the state. This is not an easy situation for

the court, the family, and most importantly the child. His Guardian ad

Litem, looking on the bright side said “he’ll be able to choose when he’s

18.” Whenever the child is restricted from speaking - determined to be

immature by age - it seems the objective court “can never be certain,”

and when ‘best interests’ become separable from ‘the child,’ then

Children’s Rights is only on paper. i.e. the balance sheet.

This ‘objective imaginary’ as I call it must always take into

consideration the subjective ‘best interests of the child’ which is a

politically motivated principle. This is true whether found in the various

 55

family-visitation schemes or the minor’s ‘right’ to terminate (execute) her

foetus. That these ‘best interests’ are to be left to the state over the

parents (Painter v. Bannister) shows an immediate separation not only

between the family and the child, but between the family and the state,

thus positioning ‘the child’ into an imaginary state of dependency on the

state, who determines the child’s ‘best interests’ based on the state

representative’s (judge’s) political views. Indeed in the Painter v.

Bannister case it was recognised that the best interests of the child are

‘contingent upon’ the decision maker’s beliefs. Nevertheless, the

political issue of parental and family rights is really a non-issue, as the

state has symbolically removed any of these ‘rights’ by separating ‘the

child’ from ‘the family’ before conception, then commissioning itself with

the power to determine which ‘right’ belongs to whom during and after

pregnancy as Khalil Gibran’s Prophet said “your children are not your

own.”

Whatever the case, it seems that power mechanics are

fundamental to Article 1 of the CRC: it is the ‘age of majority,’ which sits

in the ‘objective’ imagination of the decision-makers that determines

‘what’ a child is and who ‘it’ belongs to, not by blood or best interests.
 56

Chapter 5: The Child of Technological Innovation

The present-future consumer

Let’s take the objective imaginary to the next level. What if new

scientific technologies and modes of transfer, such as video games, the

internet, and advertising, influenced the young brain in a differentiated

 57

or more potent way than the average age of majority? (Greenfield). Then

there would be the case for a distinct age for Articles 12 and 13 of the

CRC, the much debated participatory rights. These rights cannot exist

without an imagined objective age range, and yet if any developmental

model is taken as universally viable there would need to be age-norms

within each International Law which limits the influence of exploitation of

the human brain. For instance, the US Army has set up attractive ‘virtual

battle centers’ in video arcades, and if those experiences directly affect

who or who doesn’t become a soldier, then 'freedom' is being

manipulated by those who were meant to uphold it using the medium of

digital media. However, the only way to ‘know’ is to empirically

determine at what stage, if any, brain development the human is no

longer susceptible to specific types of intrusions.

This is no easy task, yet researchers have identified more and

more conceptions of ‘the child’ whilst marketers have continued to

operate under loose and unenforceable restrictions concerning young

minds (Mayo & Nairn) such as found in the CRC. James McNeal, a best-

selling Marketing expert says [emphasis his]: “WHEN MARKETING TO

KIDS WEAR KIDS GLOVES. Children are consumers-in-training. Anyone

can fool them, deceive them, or cheat them. It takes a mighty good

marketer to satisfy children’s wants and needs and not do any of these

things, intentionally or unintentionally.”

Indeed, marketers speak of ‘youth loyalty programs’, ‘kids as

future customers,’ and ‘behavioural targeting’14 and use technology to its

fullest to exploit these ‘market segments.’ But they do this with all
 58

customer segments. Are these strategies less efficient with adults? Can’t

anyone cheat them, too? “Wear kids gloves” refers to legislative power

over the child’s interaction with marketing messages, as in the very next

statement the text warns marketers to “parent-test” marketing strategy

in the research stages.

Even for marketers, parents and social norms of the public have an

objective imaginary called ‘morality’ that attempts to define the

appropriacy of media material by setting ‘minority’ age-ranges,

especially in the areas of ‘violence,’ ‘sex,’ and ‘language.’ Unfortunately

many decision-makers are ignorant of the content and delivery of the

marketing messages which are constantly being invented and integrated

into new technologies to induce “awareness, interest, belief, and action.”

As the speed of the changes of culture and moral tradition differ

concerning age norms, there exists a gap of acceptance. For example,

products with the Playboy bunny logo are currently popular for girls aged

7-12 in the UK, and several groups have attempted to ban the marketing

of this symbol to this segment (Mayo & Nairn), but the degree of

acceptance will be determined on a much larger scale over time as

Christian influence dissipates and early sexualisation of females

increases, for example through unregulated interactive websites

targeted towards 7-12 year old girls (e.g. www.missbimbo.com).

The largest study done in the UK thus far (Byron Report 2008)

suggests that there is a link between “age-restricted” violent video

games such as “Grand Theft Auto” and ‘the[actual]child’s’ violence. And

in her 2008 book “ID,” Susan Greenfield gives pharmacological evidence

 59

to support this claim. Although this evidence seems to support age-

restriction on games such as Grand Theft Auto where extra points are

scored to kill police and sell crack cocaine, the truth is that none of the

research causally connects specific ages with specific incidents of

violence; therefore, the agenda restricting under 12’s to see and interact

with a violent video games focuses on the public’s political beliefs about

age-defined appropriacy, rather than, perhaps the real violence created

by capitalist exploitation of the lower classes (Marx).

There is no responsibility taken by the capitalist state to control

these stimuli due to the politics of liberty: “freedom of information” 15 – it

is the parent’s responsibility to control the child, depending on the age of

the child, not what societal/institutional influences inscribe themselves

onto the child’s psyche. Neither is the child responsible, as ‘the victim’

of his or her own ‘impressionability’ (Franklin). Moral definability is

subjective; age of majority is imaginary objective; in the ‘digital age’ of

capitalism, definitions such as ‘child’ ‘young person’ and ‘infant’ will have

to be far more specific as to what medium of exploitation is being used

and what developmental parameters are being set before restricting

capitalist gain through treaty. A much used metaphor (Burman) of this

artificially intelligent, age-defining system that exists as a hybrid of

psychology and electronic engineering is ‘cyborg’.

Clone baby - It takes a child to rectify a child

The other conception of the future which I will briefly consider in

relation to Article 1 and the technology of age is the patenting of

 60

reproductive16 clones, and to do so I must make the distinction between

reproductive cloning and eugenics. I can’t. Both, in my opinion, are

selective breeding, derived from a narcissistic desire to reproduce

oneself without considering the social and psychological and medical

implications on the intended ‘child’: ‘the child’ as a means to an end

rather than an end in itself (see Kant’s categorical imperative). Even the

supporters of cloning admit that all of the cloned animals to this date

have had serious physical abnormalities and have suffered tremendously

(Klotzko), and what about those IVF children ? (Lesik-Oberstein). Even if

there weren’t medical ramifications, what cloned ‘child’ could escape the

media attention surrounding scientific discoveries like ‘Eve’ and ‘Dolly’?

Michael Jackson said in his 2001 Universal Bill of Children’ Rights speech:

“All of us are products of our childhood. But I am the product of a lack of

childhood.”

But is a cloned embryo a Michael Jackson? “According to the present

Convention...” No. An embryo in itself has no rights according to Article

1, whether produced in vivo or in vitro because it is simply not in the

text. In the UK’s Human Fertilisation and Embryology Act of 1990 it was

decided that an embryo could not be considered a person, and research

could thus be performed until the 14th day of development, when the

‘primitive streak’ occurs, i.e. the body plan (including the nervous

system) begins to appear, but research to be conducted not thereafter.

Does that necessarily mean that an embryo which has developed a

‘primitive streak’ constitutes ‘a child’? Have the British found the answer

to the age question in the primitive streak? And would a cloned person
 61

who had ‘a normal childhood’ fare better in the world than a naturally-

born person who, like Michael Jackson ‘lacked’ the same? Could a cloned

person even have a ‘normal’ childhood?

Under the present European Law, cloning for reproductive purposes

is banned. In 1998, 19 countries signed an Additional Protocol to the

European Convention of Biomedicine on the Prohibition of Cloning Human

Beings. This calls for serious criminal penalties, and forbids “any

procedure aimed at creating a human being genetically identical to

another human being, living or dead.” And in the US, there is currently a

ban on state-funded embryonic research. But this doesn’t prevent the

business wheel from turning. According to the Marrakesh Accord (World

Trade Organisation), states parties must grant patents to pharmaceutical

products and biotechnological inventions; a patent holder has a

monopoly on the commercial benefits of an invention for twenty years,

and without a patent a product could be lawfully copied, thus become

much less profitable. So, very much unlike a naturally born baby,

because clone baby is a biotechnological invention, ‘it’ must be

interpreted as “a product,” unlike Michael Jackson’s ‘product of’ or the

British ‘primitive streak,’ and much more like a technological innovation

to be saved for those who can afford capitalised eugenics.

Summary

Article 1 of the CRC is interpreted from a multitudinous array of

stakeholders involved in constructing ‘the child’ through real life

individuals within their collective experience. “I remember a time when”

 62

could simply be the result of a sort of amnesia, referring backwards to

thoughts that connect with something in the contemporary sphere but

nothing like the actual early years experience. Likewise ‘the child’ has

been interpreted by several court systems to imply that before a certain

age or state of maturity the ‘state’ has control over the human being but

at another it doesn’t, thus the global form of Children’s Rights has

implications for cultures with working children, cultures with high

religious/anti-abortion values, and cultures that value parents’ and family

rights.

This critical review of the literature has focused on the several

adult conceptions of childhood, referring to philosophies and moral

constructs which underpin civil and case law and thus determine the

childhood(s) a society or group of societies will use in constructing

Children’s Rights. But who uses these instruments and how? And do

their opinions differ from amongst themselves and the treaties? Why was

the CRC made vague in Article 1 (UNICEF)? What is the point of Article 1

anyway if ‘best interests’ and ‘maturity’ trump age at the domestic level

of decision-making? A stakeholder survey is explored in the next chapter.

 63

Chapter 6: The Child of Human Rights Stakeholders: an

Article 1 Experiment

Introduction

In the Learning for Understanding paradigm, the survey design

process, including working with several stakeholders on development -

constructing the text so it fits an exact form, working with internet

survey technology to conduct the research, and logically analysing

results - link several ‘intelligences’ to the experiential entry and exit

points. The experiential entry and exit point in my journey was the

London School of Economics and Political Science (LSE), where I received

partially-subsidized tuition for an Understanding Children’s Human Rights

short-course. The working draft would be exploring Article 1 of the

UNCRC from several angles of ‘applicability’, using a 7 question survey

taken by Children's Rights stakeholders on the course, and from

employees of UNICEF and CRAE.

Jonathan Cooper OBE was the course convener, and not only

offered extra courses at his chambers but attended each seminar and

made sure participants understood particular terms or concepts the

professors had said, using several tactics such as involving case studies

for the final part of a few of the sessions, interrupting the professors to

clarify a meaning or suggest a direction, and stopping the professor after

a key point and getting 3 or 4 participants’ feedback. For feedback he

would either ask generally or call on specific people whom he knew had

knowledge on the subject.

 64

Mostly referenced in the literature review from the course is Dr.

Jenny Kuper from the LSE, because her material was the only material

which covered Article 1 and the debates on defining ‘the child.’ Her

lecture was placed first, and this topic first, which supports my assertion

in the introduction that Article 1 is the basis for all Children’s Human

Rights in a progressive future.

My other assertion coming into this survey, based largely on

Nietzsche and Foucault’s lines of inquiry into power, Aries and Lesnik-

Oberstein’s inquiries into the changing conceptions of ‘the child’ within

culture, and to a lesser extent intuitive-decision theories found in Freud

and Gardner, suggests that there are several participants complicit in the

construction of ‘the child.’ So the a priori judgement I made in

constructing this survey is that it is not clear within the text of the law or

from those who make decisions on behalf of certain young people what

necessarily quantifiable object is being decided upon, but some definition

is negotiated between stakeholders and the law, much like Dr. Lesnik-

Oberstein and I negotiated the scope of the MA dissertation and the

research methodologies which would ‘fit’ within the pre-defined scope.

Methodology

All of the survey questions were optional, and most respondents

answered all seven questions. The survey was anonymous and online

through a hyperlink to the survey page (created with the Bristol Online

Survey tool). The survey questions and format were accepted by the LSE

Centre for Human Rights Centre Director after some adjustments and a
 65

peer review, then submitted to short course participants and lecturers via

email from the Centre Manager. The results were collected and then

exported to Excel. The first five questions ensure that the respondents

are in the control group of CRC stakeholders, and consist of a

combination between multiple-choice, multiple -answer, and open-ended

questions. The sixth question is a multiple-choice grid question, with a

single question and variables A-L. The seventh question is a multiple-

answer grid question with the same variables as question six. Comment

boxes were included in question six in case of any discrepancies on the

definition of ‘the child,’ but not placed in question seven because

distinctions of ‘vulnerability’ are not within the scope of this dissertation.

Survey design analysis

Introductory blurb:

To those involved in Children' Human Rights,

I am completing a non-published Master’s dissertation on some aspects of

‘applicability’ of the UNCRC, and I need your help! Below is a link to a short and

anonymous survey consisting of 7 questions. It should take less than 10

minutes to complete. As my area of research is developmental psychology and

education, hopefully you’ll find a few of the questions interesting, and you can

print your results if you wish:

https://www.heacademy.ac.uk/survey/uncrc/

Sincerely,

Joshua Lange, aka “the American guy”

 66

The email was designed as an introduction, whilst serving as a marketing

message: its audience are those "involved" - deeming respondents

exclusive and important. The introduction also specifies anonymity twice,

and mentions ‘short’ and ‘less than ten minutes,’ which addresses an

audience that has little time to spare on such surveys. Specifying “non-

published” was Dr. Lesnik-Oberstein's suggestion to lower respondent’s

apprehension of answering questions on a sensitive topic. A link to the

obvious point of common knowledge was added for the LSE short-course

people – I was the only ‘American’ on the course. This is an interesting

observation, as on one occasion the convener mentioned it as “the

country Josh is from,” thus assuring that from both that and my accent,

most participants would relate the word to the man. And “America” was

referred to often by the convener and lecturers in relation to world power

and resistance to the CRC. What happens in and by the USA is

significant on a global level, and as aforementioned, the USA and

Somalia are the only two United Nations countries not to have ratified the

CRC. Obviously 'the American guy' was not included in approaching

UNICEF and CRAE.

Question one: “What is your age?” was an open-ended question

designed to clarify that the respondent is of the majority age.

Question two: “What is your occupation, or if a student your field of

study?” was an open-ended question designed to show that the

respondent is a stakeholder in ‘Children’s Rights.’

Question three: “What is your yearly salary range? (excluding

benefits or study grants)?” This was a multiple choice question with

 67

three choices, distinguishing £30,000-£50,000 as the mid-range salaries,

based on a web-search of several Children’s Rights related job

advertisements found on UNICEF, the UK Government, NGO and UK

higher education sector websites. This question was designed to show

that the respondent is an economic agent in what I call “the Children’s

Rights Market,” and receives at least an average (UK £32,000) level of

income to make decisions on behalf of, in many cases the world’s

poorest children.

Question four: “What, if any, definition of 'the child' is applied in

your work or study context?” was an open-ended question designed to

clarify that the respondent has a working definition of ‘the child’ before

acting on behalf of ‘the child’.

Question five: “Which article(s), if any, of the UN Convention on the

Rights of the Child are directly applicable to your work or study context?”

was designed to show that the respondent had a knowledge of the CRC.

Question six: “In your opinion and based on the information given,

should the following persons be defined as 'a child' 'not a child' or 'both a

child and not a child'? Please tick” was designed to find out if the control

group of stakeholders would agree with definitions found in CRC Article 1

and in their working contexts or with intuitive/personal understandings.

My thesis was that there would be a diversity of answers, even in the

conditional sense, such as the non-existent “clone baby.” This would

support the sociological view of ‘the child’ as a construction of adult

conceptions within certain contexts and time periods, implying that

Article 1 is a necessary unreality of Children’s rights narratives.

 68

Question seven: “Which persons listed in Question 6 would you

consider 'vulnerable'?” was designed to confirm or deny Franklin’s

assertion that the ‘contemporary’ consensus in Children’s Rights defines

‘childhood’ as a state of ‘vulnerability.’ By accepting that 1) ‘the child’ in

question six was an actual child, and 2) determining that this actual child

is in a state of vulnerability, the respondent agrees to be complicit in

defining ‘the child’ through subjective terminology found in

contemporary discourses on childhood and Human Rights.

Results

Question Age range Mode Mean

1. What is your
26-44 31 33
age?
2. What is your Professional Student Ratio
occupation, or if a ➢ Lecturer = 22 9/2
student your field of ➢ NGO Programmer
study? ➢ Barrister
➢ NGO
➢ Policy Advisor = 2
➢ Activist = 2
3. What is your £0-30,000 £30 Over
yearly salary =3 -50,000 £50,000
range? (excluding =7 =0
benefits or study
grants)
4. What, if any, - We work with vulnerable children in Africa
definition of 'the and SSU
child' is applied in - Anyone under 16 or sometimes 18
your work or study - Multiple = 2
context? - Same as CRC
- Under 18
- Majority age =2
 69

5. Which article(s),
if any, of the UN
Con-vention on the
Rights of the Child 3=5, 6, 8, 12, 13, 22, 30, 35=2, 38=2
are directly
applicable to your
work or study
context?
6. In your opinion and based on the information given, should the
following persons be
defined as 'a child' 'not a child' or 'both a child and not a child'? Please
Both a child
Question 6 A child Not a child and not a Comments
child
a. An unborn foetus 5 5 4
b. A baby born on a
plane over International 14 0 0
waters
c. A 1 year old human
10 0 4
clone
d. A 13 year old
professional dancer not 10 0 4
attending school
e. A 13 year old mother
10 1 3
of two
f. A 14 year old armed
7 1 6
government soldier

g. A 15 year old
8 1 5
professional craftsman
A child in
h. A 16 year old extreme
10 0 4
prostitute circumstances;
a child in need
A child with
i. A 17 year old
11 1 2 mental
convicted serial killer
disabilities
A child in
extreme
j. A 17 year old leader
8 3 3 circumstances;
of an anarchist group
a child with a
mental disorder
k. A 19 year old
0 12 2
university graduate
l. A 35 year old
Mentally a
'adolescent,' eg pees on 0 4 9
child?
cars
tick:
 70

Question Number of respondents who ticked ‘vulnerable’

7. Which persons a. An unborn foetus = 4

listed in Question 6 b. A baby born on a plane over International waters = 11
would you consider c. A 1 year old human clone = 10
'vulnerable'? d. A 13 year old professional dancer not attending school =
e. A 13 year old mother of two = 9
f. A 14 year old armed government soldier = 4
h. A 16 year old prostitute = 10
i. A 17 year old convicted serial killer = 5
j. A 17 year old leader of an anarchist group =5
k. A 19 year old university graduate = 2

Discussion
 71

I came into this survey thinking that there must be a distinct

subject inscribed into the respondent’s mind, a subject which will find

itself on a continuum of backing up or refuting assumptions coming onto

the survey. The subject will then assimilate itself into the respondent’s

previous understandings, which will then be acted upon in practice.

Whether this subject is the respondent’s self (Plato), a phantasie or ‘day

dream’ of youth (Freud), some dying child on a fundraising website

(York), or any other child, it will appear in their answer and contradict the

law which says ‘18’ and ‘majority age.’ This will only be realised through

the assimilated negotiation with the other.

In question six, there was a 5-5-4 vote on the status of a ‘foetus.’

There are no dates found in the comments, such as the UK 14-day law,

and no comments on the status of a foetus, such as “a child after 25

weeks.” As a matter of fact, a Viennese hospital nurse recently told me

of the horror of birthing a 24.5 week old baby then immediately

performing a surgical procedure to ‘kill’ the so-called ‘premature’ body of

the living foetus. Apparently the state considers any baby born before

the 25th week a miscarriage, but in conversation with people about the

topic there is a sense of life with "breathing", which could lead back to

many clone baby ticks as 'a child'.

9/14 of survey respondents ticked that a foetus was either ‘a child’

or ‘both a child and not a child.’ If a foetus is ‘both a child and not a

child’ then how would this respondent vote in an abortion rights

scenario? There is a lot of age-related grey area in views on what

constitutes a human being, and a 5-5-4 ratio supports the view that the
 72

global debate on abortion is so heated because of an about equal

number of Pro-Life and Pro-Choice people involved in Children’s Rights.

When considering that 5 respondents said that an unborn human

foetus (at what ‘stage’ is left out) was ‘not a child’ but all respondents

concurred that a currently fictitious ‘human clone’ was either ‘a child’ or

‘both a child and not a child’ is instructive. This result suggests that

some people involved in Children’s Rights are so adamant in their belief

that a foetus is ‘not a child’ that they are willing to demote the human

foetus to a lesser status than a human clone. Both can be used by

doctors for therapeutic purposes, through stem cells or organ

replacements, but one is distinctly ‘human’ and the other, as mentioned

above is ‘a product.’ But is it a product in the strictest sense? Does it

have a mean-time-between-failure and a supply/demand ratio? According

to the results, the belief that ‘a clone’ is more ‘real’ than a ‘foetus’ is

widespread. This, what I consider ultra-liberal viewpoint, will have to

undergo some important negotiations to succeed once cloning

technology reaches the stage of successful (and legal) reproduction; and

decision-makers must choose to define a body which is at once

homogenous and heterogeneous, a human self and a picture of a human

self. Will ‘the copied child’ differ from ‘the non-child’ in negotiations over

Children’s Rights? As seen in the Austrian example, the aborted ‘non-

child’ saves the state money. But it is anything but Pareto Optimal. For

example teenage girls on welfare will in many cases require support for

themselves and the baby, and not learning ‘productive’ skills furthers

dependency. The ‘clone’ however, will be created and patented by

 73

private interests and thus be available to the highest bidder. Will the

expensive and patentable ‘baby clone’ replace the human foetus aborted

by society’s budget-cuts and thus create a new, better, more perfect

‘child’? A new Reich, perhaps? No need for incest to keep the

monarchical power, science to the rescue! Anything but Pareto Optimal,

where the vulnerable would be sustained.

Ten respondents considered clone baby ‘vulnerable’ compared to

the foetus’s paltry four. On the surface this indicates a certain allegiance

to born life over unborn life in considering a child ‘vulnerable.’ But as

‘baby clone’ is a only a hypothesis, it can also be considered unborn life.

What doesn’t exist cannot therefore be considered vulnerable, nor

considered ‘a child’ under the ‘human being’ clause in CRC Article 1;

however, the ‘primitive streak’ rule begins the vulnerability debate at the

tender age of 14 days after conception, so at what stage a ‘clone baby’

would be vulnerable is also a negotiable sum.

None of the respondents chose ‘a child’ for any of the age-specific

persons over 18, which is the key ‘age of majority’ found in the CRC.

Perhaps these were underrepresented, as there were only two; however,

in question six, nine respondents ticked ‘both a child and not a child’ to

aspect L. ‘a 35 year old 'adolescent,' eg pees on cars’. Six said ‘a 14

year old armed government soldier’ was both, but five referred to the 14

year-old as ‘a child’ whereas zero refereed to our ‘adult’ car peer as ‘a

child.’

Zero referred to the ‘19 year old university graduate’ as ‘a child.’

there were twelve respondents who said that a 19 year-old university

 74

graduate was ‘not a child’ whereas only four referred to the car peer as

‘not a child.’ Apparently the consensus is that an academically-talented

youngster is much more of what constitutes an ‘adult’ than a 35 year-old

who finds it funny to pee on cars. In Canada at the present time, there is

a Children’s Rights row about whether parents or the state is responsible

for paying higher education expenses. Is there an academic connection

of ‘adulthood’ and ‘childhood’?

The results suggest that many consider a 14 year old armed

government soldier ‘both a child and not a child.’ In one of the Additional

Protocols to the CRC, a universal age-norm for child soldiers is set for age

15 as the minimum age for battle, yet these stakeholders consider a 14

year-old soldier ‘both a child and not a child’. Can a 14 year old be

prepared for war? Will a 14 year old be used in war as necessary despite

ratifying the CRC? If the exponentially larger military was under the

power of those who are currently accused of using child soldiers, perhaps

the now dominant parties would use young ones.

Conclusions

Article 1 is the basis for Children’s Human Rights – as “for the

purposes of the present Convention” there must be a distinct subject

inscribed into the respondent's mind, a subject which will find itself on a

continuum of backing up or refuting his or her assumptions. The survey

results also support this determination, and in addition reveal that

stakeholders in important decisions concerning young people have

multiple definitions of ‘the child’ in their own minds, and these definitions
 75

can completely contradict the laws many of them are in place to promote

or defend.

After backing up or refuting assumptions, the subject will

assimilate itself into the respondent's previous understandings, which will

then be acted upon in his or her practice or aim. Whether this subject is

the self (Plato), a phantasie or ‘day dream’ of youth (Freud), some dying

child on a fundraising website (York), or any other child, it will appear in

his or her answer and contradict the law which says ‘18’ and ‘majority

age,’ but will only be realised through the assimilated negotiation and

the (metaethical) second-personal.

On a spiritual level, instruments such as the UDHR and CRC are

enforceable. On a practical level they are not. They are called "living

instruments" much like a religion's "inspired texts" but are necessarily

separable through universal middle terms like 'the child,' and perhaps

that is why they are living - negotiable terminology allows for decision-

makers to bargain in individual circumstances. Yet it seems that by their

very nature words like 'the child' and 'human being' bring all individuals

into a universal ideal. But as seen from the answers to question six, it

can be deduced that on a practical level definitions support actions.

There is a sense of life with "breathing", which could lead back to

many who ticked the clone baby as 'a child' in question six. The Elephant

Man was also breathing, in a cage as a spectacle. With that said,

reproductive cloning can hardly be the way forward in the modern era of

instantly-communicated media frenzies, public superstition, people

 76

already paying $50,000 to clone their small dogs (Dawar) and millions of

children in foster care.

Source: (Dawar) www.guardian.co.uk

In 'the spirit of', 'human being' , 'the child' of an Article is non-binding

language. These terms will be negotiated in areas like cloning and

behavioural targeting which redefine the cultural landscape. All of these

terms denote a self-determined place of negotiation with the other, and

'childhood' is so vague it is a waste of space in cross-cultural treaties

altogether.

The Article 1 CRC ‘child’ is quantitatively different from the 1924

and 1959 Declarations’ in that it is an age-defined child. I set out to

suggest through this experiment that the Article 1 child is perhaps a non

plus because its binary definitions ‘under 18’ and ‘majority’ with

opposites ‘over 18’ and ‘minority’ undermine each individual case. In

practice there are multiple considerations of maturity that parents (loco

 77

in parentis), society, and the courts (Parens Patriae) must take into

account before giving power and privileges to younger persons, and

these considerations vary for each individual (that is, if one accepts that

there are individuals, which is necessary to follow a Multiple

Intelligences-based logic or the quantifier 'any' found in Article 1). It

seems that despite notions of ‘individualism’ found in the democratic

values meant to lead Human Rights discourses, the collective norms of

‘Northern’ societies regarding age-appropriacy are being exported to the

‘South’ through International legislation, and Article 1 – the measurable

child - is fundamental to future conceptions of ‘being’ ‘in’ ‘a state of’

‘childhood.’

Works Consulted
 78

A v UK, September 1998.

The African Charter on the Rights and Welfare of the Child. African Union,

29 November

1999.

Akester, Kate. International Human Rights and Youth Justice.

Unpublished seminar

papers. London School of Economics and Political Science, 2 June

2009.

Althusser, Louis. Ideology and Ideological State Apparatuses. From:

Literary Theory

J. Rivken, J. and M. Ryan (eds). Anthology. London: Blackwells, 1998.

The Arab Charter of Human Rights. Council of the League of Arab States.

22 May 2004.

Archard, David. Philosophical Perspectives on Childhood. From: Fionda

(ibid).

Aries, Phillipe. Centuries of Childhood: a Social History of Family Life.

Trans. Robert

Baldick. New York: Random House, 1962.

Bhaba, Homi K. The Location of Culture. Oxon: Routledge, 1994.

Boyden, Jo. Childhood and the Policy Makers: A Comparitive Perspective

on the

Globalization of Childhood. From: James & Prout (ibid), 1997.

Bruner, Jerome. Approaching the Literary. From: Actual Minds, Possible

Worlds.

Harvard: HUP, 1986.

 79

---The Narrative Construction of Reality. Critical Inquiry, Vol. 18(1),

1991.

Buck, Trevor. International Child Law. Oxon: Routledge, 2005.

Burman, Erica. Developments: Child, Image, Nation. New York:

Routledge, 2008.

--- Deconstructing Developmental Psychology, New York: Routledge,

2007.

Carrette, Jeremy R. Foucault and Religion: Spiritual Corporality and

Political Spirituality.

London: Routledge, 1999.

Children’s Rights Alliance for England. 26 June 2009:

<http://www.crae.org.uk/>

Cheshire, Fifoot & Furmston (eds). Law of Contract, 15th ed. Oxford: OUP,

2007.

Cooper, Jonathan OBE. Unpublished seminar papers. London School of

Economics and

Political Science. London, May - June 2009.

---Understanding Human Rights: What They Are, Where They Come

From and How They Work. Powerpoint Presentation. London,

Doughty Street Chambers, 19 May 2009.

Costello Roberts v UK 19 EHRR 112, 1993

Chudacoff, H.P. How old are you? Age-consciousness in American culture.

Princeton:

PUP, 1989.
 80

Dawar, Anil. Pet Cloning Service Bears Five Baby Boogers. 05 August

2008.

www.guardian.co.uk. 21 August 2009:

<http://current.com/items/89170857_pet-cloning-woman-pays-50-

000-to-clone-

dog.htm>

Detrick, Sharon, Jaap Doek, and Nigel Cantwell. The United Nations

Convention on the

Rights of the Child: a Guide to the Travaux Preparatoires. Martinus

Niehoff.

22 July 2009:

<http://books.google.co.uk/books?

id=65TCU0N9fksC&lpg=PP1&ots=KWLMc9OSAG&dq=united

%20nations%20convention%20on%20the%20rights%20of%20the

%20child%20travaux%20preparatoires&pg=PA97>

Detrick, Sharon. A Commentary on the United Nations Convention on the

Rights of the

Child. Martinus Niehoff. 22 July 2009:

<http://books.google.co.uk/books?

id=QB6UB1SCxbsC&lpg=PA447&ots=1NqhBZWfr6&dq=united

%20nations%20convention%20on%20the%20rights%20of%20the

%20child%20travaux%20preparatoires&pg=PA53>

Donaldson, Margaret. Children’s Minds. London: Fontana, 1978.

European Convention of Biomedicine Additional Protocol on the

Prohibition of
 81

Cloning Human Beings, Council of Europe; Paris, 12 January 1998.

European Convention on the Exercise of Children’s Rights. Council of

Europe;

Strasbourg, 25 January 1996.

Farson, Richard. Birthrights. Macmillan Publishing: New York, 1974.

Fairclough, Norman. Language and Power. UK: Pearson ESL, 1991.

Fionda, Julia. Legal Concepts of Childhood. Portland, OR: Hart

Publishers, 2001.

Fleming, John and Michael Hains. What Rights, If Any, Do the Unborn

Have Under

International Law? Priests for Life. 03 August 2009:

<http://www.priestsforlife.org/articles/flemingp1.html>

Fortin, Jane. The Human Rights Act 1998, Human Rights for Children Too.

From: The

New Handbook of Children’s Rights, Bob Franklin ed. Routledge:

London, 2002, pp

119-135.

Fottrell, Dierdre. The Development of Children’s Human Rights in

Europe. Unpublished

seminar papers. London School of Economics and Political Science,

12 May 2009.

----The Rights of the Child within the Family. Unpublished seminar

papers. London

School of Economics and Political Science, 26 May 2009.

 82

Foucault, Michel. Power: essential works of Foucault 1954-1984, vol. 3.

James D.

Faubion (ed). London: Penguin, 1994.

Franklin, Bob (ed). The New Handbook of Children’s Rights: comparative

policy and

practice. Routledge: London, 2002.

Freeman, Michael. The Child in Family Law. From: Fionda (ibid).

Freud, Sigmund. Introductory lectures on Psychoanalysis. Trans. By

James Stratchey

London: Penguin, 1991.

Fromm, Erich. The Fear of Freedom. Oxon: Routledge, 1963.

Frones, I. Dimensions of Childhood. From: J Qvortrup et al (ibid).

Gardner, Howard. The Unschooled Mind: How Children Think and How

Schools Should

Teach. New York: Basic, 1991.

---Intelligences Reframed: Multiple Intelligences for the 21st Century.

New York:

Basic, 2000.

---The Disciplined Mind: What All Students Should Understand. New

York: Simon

& Schuster, 1999.

Ghibran, Khalil. The Prophet. New York: Random House, 1998 ed.

Gert, Joshua. Moral Obligation and Accountability. From: Oxford studies

in Metaethics.

Vol. 2: Oxford University Press, 2007.

 83

Ghandi, Sandy. Blackstone's International Human Rights Documents, 6th

ed. Oxford:

OUP, 2008.

Greenfield, Susan. ID: the Quest for Identity in the 21st Century. UK:

Sceptre, 2008.

Guggenheim, Martin. What’s Wrong with Children’s Rights? Cambridge,

MA: HUP,

2005.

Gillick v West Norfolk Area Health Authority, 3 All ER 402, 1986.

Hendrick, Harry. Children, Childhood, and English Society, 1880-1990.

Cambridge:

CUP, 1997, p.3

Holy See. Intervention by the Holy See Delegation to the United nations

on the Occasion

of the Special Session on Item “World Summit for Children.” 31

January 2001. The

Vatican, 03 August 2009:

http://www.vatican.va/roman_curia/secretariat_state/documents/rc_s

egst_doc_20010131_summit-children_en.html

The International Covenant on Economic, Social and Cultural Rights.

Geneva: United

Nations, 23 March 1976.

The International Covenant on Civil and Political Rights. Geneva: United

Nations, 23

March 1976.
 84

James, Allison and Alan Prout (eds). Constructing and Reconstructing

Childhood:

Contemporary Issues in the Sociological Study of Childhood. 2nd

ed. London,

Falmer, 1997.

Jenks, Chris. Sociological Perspectives and Media Respresentations of

Childhood. From:

Fionda (ibid).

Kant, Immanuel. Lectures on Ethics. Methuen: London, 1930.

Klotzko, Arlene J. A Clone of Your Own? The Science and Ethics of

Cloning. New

York: CUP, 2006.

Kollar, M. and O. Ritchie. The Sociology of Childhood. P.117. New York:

Appleton

County, 1964.

Kuper, Jenny. The Development of International Child Law, Its

Implementation

Mechanisms, and the Definition of the Child. Unpublished seminar

papers. London

School of Economics, 5 May 2009.

Lance, Mark and Margaret Olivia Little. Practical Reasons and Moral

'Ought.' From: Russ

Shafer-Landau (ed). Oxford studies in Metaethics. Vol. 2. Oxford:

OUP, 2007
 85

LearnHigher. 2009. Maintained by Liverpool Hope University. 03 June

2009:

<www.learnhigher.ac.uk>

Lee, Nick. Childhood and Human Value: Development, Separation and

Separability.

Maidenhead: Open University Press, 2005.

Lesnik-Oberstein, Karin (ed). Children’s Literature: New Approaches.

Basingstoke:

Palgrave Macmillan, 2004.

Lindner, Bill. Keeping America Safe, Or Instituting A Police State? 10

January 2009. The

American Chronicle, 13 August 2009:

<http://www.americanchronicle.com/articles/view/87437>

Locke, John. Two Treatises of Government. P. Laslett (ed). Cambridge:

CUP, 1964

Luke 2. Holy Bible, King James Version. Zondervan, 1997.

Mabon v Mabon, Civ 634, 2005.

MacCormick, Neil. Children’s Rights: a Test Case for Theories of Rights.

Archiv fuer

Rechts und Sozialphilosophie , 1976, 305-17.

Marx, Karl and Friedrich Engels. The Communist Manifesto. Oxford

World Classics ed.

Oxford: OUP, 1998.

Mayall, B. (ed) Children’s Childhood. London: Falmer, 1994.

 86

Mayo, Ed and Agnes Nairn. Consumer Kids: How Big Business is

Grooming Our

Children for Profit. London: Constable, 2009.

McNeal, James U. Kids as Customers: a Handbook of Marketing to

Children. New York:

Lexington, 1992.

Mill, J.S. On Liberty. Everyman, Dent: London, 1910.

Matthews, Gareth. Socrates Children. From: Susan M Turner and Gareth

B Matthews (eds), The Philosopher’s Child: Critical Essays in the

Western Tradition. Rochester:

RUP, 1998, p.21

Milton, John. Paradise Regained, bk ii, l.220.

Nietzsche, Friedrich. The Will to Power. Trans. Walter Kaufmann and

R.J. Hollingdale.

New York: Vintage, 1968.

---Beyond Good and Evil: Prelude to a Philosophy of the Future.

Trans. Helen

Zimmern. New York: Dover, 1997.

Opies, I and P. The Lore and Language of Schoolchildren. Oxford: OUP,

1959.

Parsons, T. The Social System. Glencoe: Free Press, 1951, p.101.

Pain, Kenneth W. Minors: the Law and Practice. London: Fourmat, 1987,

pp 3-5.

Piaget, Jean. Psychology and Epistemology. Trans. P Wells.

Harmondsworth: Penguin,
 87

1972, p.26.

Postman, Neil. The Disappearance of Childhood. London: Vintage, 1994,

pxi

Prest, Charles and Stephen Wildblood QC. Children Law: an

Interdisciplinary Handbook.

Bristol: Jordan, 2005.

Prout, Alan. Constructing and Reconstructing Childhood From: James &

Prout eds (ibid).

Purdy, Laura. In their best interest? The Case Against Equal Rights for

Children.

NewYork: Cornell University Press, 1992.

Qvortrup, J. M Bardy, G Sgritta and H Wintersberger (eds). Childhood

Matters: Social

Theory, Practice, and Politics. Aldershot: Avebury, 1994.

Rogoff, Barbara. The Cultural Nature of Human Development. Oxford:

OUP, 2003.

Roper v Simmons. Supreme Court of the United States, N0. 03-633

March 1 2005

Rousseau, J.J. Emile. Online translation from CIRCL pre-reading materials.

2007.

Rose, Jacqueline. The Case of Peter Pan: or, the Impossibility of

Children’s Fiction.

London: Macmillan, 1984.

Russell, Bertrand. Principles of Social Reconstruction. London: Allen and

Unwin, 1971.
 88

Schutz, A. Collected Papers Vols I, II, and III. The Hague: Martinus Nijhoff,

1971. From:

Chris Jenks (ibid).

Smith, Jonathan. Personal communication. Co-author of English for

Academic Study:

Speaking and Listening. Reading: Garnet, 2009.

Solberg, Anne. Negotiating Childhood: Changing Constructions of age for

Norwegian

Children. From: James & Prout eds. (ibid).

Stainton Rogers, Wendy and Jeremy Roche. Children’s Welfare and

Children’s Rights: a

practical guide to the law. London: Hodder & Stoughton, 1994.

Strunk, William and E.B. White. The Elements of Style. 4th ed. Longman:

New York,

2000.

T and V v UK 30 EHRR 121, 1999.

Talledega Nights: the Ballad of Ricky Bobby. Dir. Adam McKay. Perf.

Will Ferrell.

Sony, 2006.

Tauran, H. E. Mons. Jean-Louis. The Defence of Life in the Context of

International

Policies and Norms. The Vatican, 03 August 2009:

<http://www.vatican.va/roman_curia/secretariat_state/documents/rc

_seg-st_doc_20000211_tauran-acdlife_en.html>
 89

The United Nations Convention on the Rights of the Child. Geneva: the

United Nations,

20 November 1989.

Watts, Isaac. Logic: or the Right Use of Reason in the Inquiry After Truth.

London:

Dove, 1825.

---The Improvement of the Mind to Which is Added a Discourse on

the Education of

Children and Youth. London, 1837

Ward, Ian. Law, Literature and the Child. From: Fionda (ibid).

York University. Conference on 'Responsibility to the Story'. September

10th and 11th,

2009.

Endnotes:
1 Art. 28 compulsory education, Art. 32 minimum employment, Art. 37
imprisonment, Art. 38 armed conflict, Art. 40 criminal responsibility, Art. 41
cannot conflict with domestic education
2 NB I did not say ‘vulnerable.’ Indeed, most refugees can be considered quite
vulnerable.

3 The reason I stress “parent’s” instead of “parents’” is because the majority of

men in Japan have very long work-social hours and little rest or time with their
kids.
4 For more on the difference between children and young people, see section
on Law
5 for more on living instruments see Marckx v Belgium 2 EHRR 330 1979.
6 famous Patrick Henry quote 1775, US Revolution against the British Empire

7 Not to be confused with other legal definitions of age: ‘age of license’ which
means the permitted age to do something, e.g. drink alcohol, or ‘age of
maturity’ which is a legal recognition of adulthood.
8 For a historical/psychoanalytical account of this scripture, see Tucker, M.J. in
DeMause 1974 : 245.
9 indeed the ‘thought’ that ‘the child’ is a ‘thought’ veers into Hegel’s
philosophy of the phenomenological
10 The legal term is ‘terminate’ the pregnancy. ‘Execute’ is more vilifying yet
in my opinion more accurate.
11 Jewish, because the Christian era could not have preceded the events of
Luke 2 ie the ‘saving sacrifice’
12 Citing (Plumb, 1972:153; Aries, 1962: 329; Laslett, 1965: 105; Holt, 1975:
21).
13Of course the language was adopted after several reservations from Muslim
states, citing Islamic law
14 To define these more clearly, a ‘loyalty program’ can be defined as some
sort of advantage that the customer receives for repeated purchases; ‘future
customers’ can be defined as the basis for long-range loyalty programs, part of
a ‘multidimensional segmentation strategy,’ and can be seen in things like
corporate logos on youth football uniforms or McDonald’s “cradle-to-grave”
marketing techniques; ‘behavioural targeting’ such as ‘spyware’ enables
marketers to deliver ads to consumers based on their recent online behaviour,
e.g. what they did or didn’t buy, sites they surfed and for how long, and what
they searched for. This translates into highly detailed age-based targeting.
15 The ‘Freedom of Information Act’ is the US Law which effectively keeps the
internet freely accessible; the internet is controlled in the US, therefore subject
to US Law.
16 To be distinguished from ‘therapeutic cloning’ which refers to treating
diseases.