Journal of Medical Ethics (U.K.), Volume 17: Pages 1-4, June 1991.
Briefings in Medical Ethics, No. 9.
Briefings are issued by the Institute of Medical Ethics and are produced under the aegis of a working party chaired by Sir Douglas Black FRCP. All correspondence should be addressed to: Kenneth House, Institute of Medical Ethics, 1 Doune Terrace, Edinburgh EH3 6HY
The framework of human rights law
In September 1990, ten months after being adopted by the UN General Assembly, the United Nations Convention on the Rights of the Child came into force. Those countries which pledged themselves to abide by the provisions of the Convention now have a legally binding obligation to ensure that their domestic law and other relevant administrativearrangements satisfy its requirements.
The Convention is one of the most recent additions to a growing international code of human rights law. Amongst the many instruments that comprise this code are the two principal UN covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Both treaties contain an agreed catalogue of rights which each state adhering to the treaty pledges itself to recognise. The catalogue thus becomes an authoritative standard by which to judge the behaviour of governments toward the people they govern. The rights are possessed equally by all human individuals `without distinction of any kind'; they are `inherent' and `inalienable' human rights.
Taken as a pair, the two principal UN covenants aim to provide some kind of comprehensiveness in their catalogue of 'basic rights' and fundamental freedoms'. Other instruments specify particular rights in more detail than a general catalogue would allow, or they deal with a particular category of person such as refugees. The UN Convention on the Rights of the Child stands somewhere between these two types of international human rights instrument. Though it deals with a particular category of person - children - it nonetheless aims to `incorporate the whole spectrum of human rights'.
In 1924 the League of Nations adopted a Declaration on the Rights of the Child. Coming in the aftermath of the suffering and economic dislocation caused by the First World War, the Declaration stressed the material needs of children; they should have 'by right' the means necessary for their normal development, including `food for the hungry, nursing for the sick, help for the handicapped, and shelter and succour for the orphan and waif'. In 1959 the United Nations General Assembly adopted its own Declaration of the Rights of the Child. The preamble states that `the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection', and that `mankind owes the child the best it has to give'.
Neither of these earlier instruments are formal treaties; they are 'declarations of intent' or 'proclamations of general principle'. Like the more famous Universal Declaration of Human Rights, the 1959 UN Declaration of the Rights of the Child proclaims a 'common standard of achievement'. By this means the international community signals its acceptance of a standard which is then used as a basis for mutual exhortation and criticism. And the acceptance of a standard confers upon it a kind of authority thatcannot be possessed by a disputed standard.
The UN Convention differs from these previous instruments not only in respect to its legal standing - it is a formal treaty and not `merely' a proclamation of general principle - but also in respect of its content. It goes beyond a statement of what is owed to children by virtue of their `physical' and mental immaturity', and incorporates some of the rights and freedoms listed in the more general human rights treaties.
Universal rights and special rights
The `inherent right to life', the right to freedom of expression and the freedom of conscience, thought and religion, the right to social security and the various rights recognized by the Convention which are already listed in the principal human rights treaties. There are, however, some notable but unsurprising omissions from the two UN International Covenants. Not all of the rights said to be possessed by everyone `without distinction of any kind' are expressly extended to children by the Convention. Children do not, for instance, have the right to work, to choose their place of residence or to take part in the conduct of public affairs.
Some of the rights children possess, they possess in common with all human individuals. Others they possess because they are children. And there are yet others which they do not possess for the same reason, because they are children. If only those rights which are possessed by everyone can be properly considered as universal human rights, then rights possessed only by children (if there are any such) are not universal human rights. And by the same reasoning, rights which are not possessed by children are not universal human rights.
Most of the provisions in the Convention specify rights which children possess because they are children. As with the 1959 Declaration, the usual explanation for ascribing such special rights to children arise out of their incapacity to provide for themselves or to protect themselves. They cannot survive, let alone flourish, without the assistance of others.
Many things however are needed either for human survival or for flourishing can only be provided through social cooperation. In these respects no-one, neither children nor adults, can provide for themselves. Not only are children incapable (more or less) of providing for themselves by their own unaided efforts (like adults), but they are also incapable (more or less) of contributing to these cooperative endeavours by means of which individuals provide for themselves and each other. This incapacity is a basic ground for recognizing the claims of children to be provided for by others. They should be provided for both because of and in spite of their `economic' incapacity. Other groups of similarly incapable individuals, such as the severely mentally handicapped, have an identically grounded claim. If anything is special or distinctive about children, it is therefore not that they need to be provided for; it is that with which they need to be provided.
Article 27 of the Convention requires that 'States Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development'. Whereas the International Covenant on Economic, Social, and Cultural Rights recognises a 'right to an adequate standard of living', the Convention recognises a right to a standard of living adequate for the child's development. More generally, children have a claim on others to provide the nurturing and care that they need in order to develop beyond childhood. The idea of development or maturation is fundamental to our understanding of the nature of childhood. Childhood comes to an end when some specified developmental process is complete. A `thin' idea of this would include only the capacity for sexual reproduction and a basic economic capacity. A `rich' idea of this development would include whatever capacities are required for human flourishing. As Article 27 makes clear, the Convention adheres to a `rich' idea of the process of child development. (no aspect of human flourishing is to be neglected) whilst refraining from detail in specifying the capacities that are to be developed. This choice of a `rich' idea of child development (which reflects a `rich' idea of human flourishing) is one of the most significant underlying themes of the Convention. It is important not least because it entails the rejection of a `thin' idea of child development. Children have a right to be provided for beyond the age of sexual maturity or the development of their capacity to be economically productive.
Article 33 provides that `State Parties shall take all effective and appropriate measures ... to protect children from the illicit use of narcotic drugs ... and to prevent the use of children in the illicit production and trafficking of such substances'. Several provisions in the Convention, like Article 33, require that special measures be taken to protect children from specified harms including sexual abuse, sexual exploitation and exploitation at work. In some, or perhaps even all, of these cases it seems reasonable to say that the harm against which children should be protected is one against which adults should also be protected. For example, the laws of most countries `recognise the right' of everyone to be protected against the harm caused by narcotic drugs. How is it that children have special rights to protection against harms to which everyone is vulnerable? If the measures taken to protect adults from these harms are deemed inadequate for the protection of children, then special measures are required in order that children may be equally protected from this kind of harm. It is usually said however not only that children have a claim to special kinds of protection, but also that they have a special claim to protection, a claim grounded in an incapacity analogous to their economic incapacity. And just as economic incapacity is not a characteristic possessed only by children, nor is this second kind of incapacity (an inability to recognise a threat of harm for what it is?); there are others who are in he same way especially vulnerable to harms. If children are distinctive in this respect, it is perhaps because they may be described as `doubly' vulnerable. Harms against which they are especially vulnerable by virtue of incapacity expose them to an additional harm - the hindering or distortion of their development as children.
The 1959 Declaration of the Rights of the Child stated that the `child shall in all circumstances be among the first to receive protection and relief' and that `mankind owes to the child the best it has to give'. The clear implication is that children have priority when their claims compete with those of others under conditions of scarcity. The special rights of children are special not only by virtue of being different from those of others, but also because they give rise to claims which are stronger than those of others. Two very different types of reason may be offered in support of this widely shared view. There are reasons which rest on some version of a principle of equality. Children are usually entitled with adults to have their needs met. The fair application of this principal requires that those with greater needs should receive more of what is to be provided. Under condition of scarcity the more needy go `to the head of the queue'. These considerations are internal to the idea of individual human rights; they are claims which children exert `in their own right'. An altogether different argument for recognising stronger claims in children is that the present recognition of these claims contributes to the future well-being of society. This line of reasoning does not sit well with the idea that individual human rights have a basic role to play in moral argument. More weight is assigned to the satisfaction of children's needs or the alleviation of their suffering because of the benefits this brings, not to them individually but to society as a whole.
Those rights whose function is to ensure that children receive the special protection and care to which they are morally entitled by virtue of being children correspond to the principles adumbrated in the 1959 Declaration of the Rights of the Child. There are two main respects in which the Convention can fairly claim to 'chart new territory' and go beyond the earlier document. Firstly, some of these rights which the Convention explicitly extends to children even though they are said in other instruments to be possessed by everyone fall into the category sometimes knows as 'liberty rights'. This type of right protects the freedom to take untrammelled choices of some kind or another (eg the freedom of thought, conscience and religion), and therefore presupposes the capacity to make the kinds of choice in question. Secondly, the Convention 'establishes the right of the child to be an actor in his or her own development'. More specifically, Article 12 declares that 'States Parties shall ensure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child'.
What significance is to be ascribed to these two steps? The extension to children of liberty rights already said to be possessed by every one is significant is so far as 'everyone' was previously understood to include children. For as long as children have a right to be provided for (because of their economic incapacity), they also have a special right to be protected from harm. And this right to protection implies a general lack of liberty rights. So the argument goes. The possession of liberty rights is supposed to entail the exercise of that very same capacity in which the child must be judged defective in order that he or she may justifiably receive special protection from harm. Behind this conservative position on children's rights lies a particular conception of the transition from childhood to adulthood as a move from complete tutelage to full and equal liberty. The Convention repudiates the view, implicit in such conservatism, that the transition from childhood to adulthood depends on the development of a single or unitary capacity (the ability to recognise a threat of harm for what it is) which the child either does on does not possess in sufficient measure.
Immediate and progressive rights
Article 4 of the Convention declares that `with regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their resources, and where needed, within the framework of international cooperation'. Obligations accepted by States under the various human rights treaties are usually described as either `absolute and immediate' or 'relative and progressive'. Those which are either explicitly or implicitly qualified by the `resources' permitting proviso belong to the latter category. Rights which are not relative and progressive are absolute and immediate; they come into force for each state from the moment it becomes bound by the treaty.
Relative and progressive' rights correspond to what political philosophers have tended to call `welfare rights'. They represent an individuals claim to some portion of the products of social cooperation irrespective of the extent of that individual's contribution to their production. By describing the right as `relative' the point is made that the size of the portion which the individual is owed must depend on the size of the whole from which it is taken. By describing it as 'progressive' it is implied that someone who now receives what is in one sense his `fair share' of the whole may yet be receiving less than he ought. It is possible to say this because human needs determine a standard by which the adequacy of a portion may be judged; people should not receive less than adequate to their needs (see Article 27 above).
Whether welfare rights are truly moral rights is a question that has received a great deal of recent philosophical attention. The controversy has turned largely on the sense that moral rights are peculiarly peremptory and insistent in their claim to be fulfilled, qualities which have sometimes been considered incompatible with the `relative and progressive' nature of welfare rights.
Article 24 of the Convention recognises `the right of the child to the enjoyment of the highest attainable standard of health and to facilitate for the treatment of illness and rehabilitation of health'. Scepticism over the status of relative and progressive rights, such as the right to health care provision, is often justified by arguing the necessity of deciding between competing claims under conditions of scarcity. How is it to be decided whether or not someone is entitled to a particular form of medical treatment? One way of settling the question is by using (in the style of the Convention) the language of human needs. There is a sense in which someone who needs a given form of treatment is entitled to receive it. But if those charged with satisfying medical needs can justifiably say `resources do not permit', then such a right is of no use to its bearer in determining what this individual should receive under conditions of scarcity, it will be necessary to take account of the level of available resources together with competing claims on its use. We may choose to say that he is morally entitled (ie has a right) to receive whatever it is decided that he should receive once these factors have been taken into account. But this second rights is determined by deciding what health care he should receive, and not vice versa. And what sense is attached to a recognition of a right which is of no use to its bearer in securing what he should receive?
Some commentators on human rights law circumvent this challenge to the idea of welfare rights by casting them in a more modest role, one which stresses the importance of remedies against the unequal or discriminatory recognition of such rights. In so far as welfare rights, such as the right to health care, are rights possessed equally by all, then they can be used to ensure that no-one is unjustly excluded from that to which others have access. The equal right to health care, so conceived, acts as a constraint on the types of factor that may be taken into account under the `resources permitting' proviso. It is, for example, impermissible to give one individual priority over another in the provision of care on the grounds of ethnic origin.
Is anything lost by accepting such a trimmed down conception of welfare rights? Article 6.2 of the Convention requires `States Parties to ensure to the maximum extent possible the survival and development of the child'. Children are incompletely protected in their rights to `survival and development' as long as they do not receive enough of whatever is needed for survival and development. By saying that the right is progressive the Convention acknowledges that it may not yet be enforceable. To recognise the right is nonetheless to accept a present obligation, the obligation to work towards a state of affairs in which they do receive enough of whatever is needed. One of the most important rhetorical functions of welfare rights is to assert the existence of obligations of this kind, notwithstanding the difficulty of specifying criteria for determining when someone has failed in his performance of the obligation.
The UN Convention and the medical profession
It is an important feature of treaties like the UN Convention on the Rights of the Child that they are result of negotiation between states whose conventional moralities will almost certainly differ on many matters relating to the treatment of children. Moral rights are meant to have a force which is independent of any particular conventional morality. Since the outcome of a truly international agreement on human rights will have this `trans-cultural' quality, it may appear to have a moral force beyond that which it possesses by virtue of its legal status alone. Such a catalogue of human rights can claim to represent the moral consensus of the international community. And many people would argue that this is as good a method derived from abstruse philosophical speculations. A consensus approach must be conceded to have its drawbacks however. The contents of the catalogue of rights will lack the specificity to decide contested cases. Agreement is usually reached not by settling controversies, but by moving beyond them to a higher level of generality.
Pediatric medicine abounds with examples of issues which the Covenant could not settle without further interpretation as to the scope and force of its various provisions. There are, for example, the many types of cases which concern the respective powers of parents and children to grant or withhold consent to medical treatment.
If the relevance of the Convention to the medical profession were thought to depend upon its capacity to shed light on these hard cases, then it would be a document with only a slight claim upon the attention of doctors in liberal democracies. (And if this deficiency were made good by supplementing the Convention with an adjunctive institution empowered to apply its provisions to the settlement of hard cases, it would be questions of legal rights, not moral rights, that would be settled.)
Perhaps then the strongest basis for the Convention's claim on the attention of the medical profession in general, and paediatricians in particular, is in the opportunity it provides for an appraisal of the broader implications and limitations of appeals to children's rights in medical ethics. What kind of priority should children have in matters of resource allocation? Do children's rights to `survival and development' exert their claims across national boundaries? To what extent does the right of children to special protection oblige paediatricians with their specialist knowledge of the needs of the developing child for protection and care, to take on the role of advocate for children who are not their patients?
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