The Oxford Handbook of Children's Rights Law (Oxford Handbooks)

Cover The Oxford Handbook of CHILDREN’S RIGHTS LAW Copyright Table of Contents Preface Acknowledgments List of Contributors Introduction Overview: Core Themes Part I: Historical and Theoretical Framework Part II: Perspectives and Methods Part III: Substantive Legal Areas Part IV: Selected Individual and Institutional Actors Part V: Selected Populations Part VI: Conclusion Notes Part I: HISTORICAL AND THEORETICAL FRAMEWORK Chapter 1: Images toward the Emancipation of Children in Modern Western Culture 1 Introduction 2 Emergence of the New Concept of the Child and Childhood 3 Nature and the Rights to a Childhood: Locke, Rousseau, and the Romantic Poets 3.1 John Locke: The Empiricist Turn 3.2 Jean-Jacques Rousseau: Childhood and Child Development Move Center Stage 3.3 The Romantic Poets: The Glorification of Childhood 4 The Children of the Poor: Saving the Children 4.1 The Factory Child and Child Employment 4.2 Street Children and the “Delinquent” Child: Saving the Children 4.3 Charles Dickens and Victorian Childhood 4.4 Cruelty to Children 5 The Whole Child as the Focus of New Disciplines and Professions 5.1 Johann Heinrich Pestalozzi and Wilhelm August Froebel 5.2 The New Disciplines of Pedagogy, Psychology and Social Work 6 The Century of the Child 7 Conclusion Notes Chapter 2: The Evolution of the Children’s Rights Movement 1 Introduction 2 Advocacy to Establish Children’s Rights Standards 3 Other Thematic Campaigns 4 National-Level Organizing 5 Mobilization by Children 6 Controversies and Criticism 7 Conclusion Notes Chapter 3: Taking Children’s Human Rights Seriously 1. Introduction Notes Chapter 4: The Interrelated and Interdependent Nature of Children’s Rights 1 Introduction 2 Childhood as a Social Construct and Children’s Human Rights 3 International Treaty Norms and the Invisibility and Indivisibility of Children’s Rights 4 Interrelatedness of Children’s Rights 4.1 Interpretations of Treaty Bodies 4.2 Some National Approaches 5 The Interdependence of Children’s Rights 5.1 Parents, Children, and Family 5.2 Children’s Rights and Women’s Rights 6 Conclusion Notes Part II: PERSPECTIVES AND METHODS Chapter 5: A Child-Centered Approach to Children’s Rights Law: Living Rights and Translations 1 Introduction 2 Essentialist Understandings of Children’s Rights 3 Culture, Rights, and Autonomy 4 Living Rights 5 Translations 6 Conclusion Notes Chapter 6: A Socioecological Model of Children’s Rights 1 Introduction 2 The Socioecological Model 3 Understanding Children’s Rights as Derived from Their Needs 4 The Needs-Rights of Children across Different Socioecological Layers 5 Children’s Rights Laws across the Ecosystems of Children’s Lives 6 Implementing Children’s Rights Laws across Children’s Ecosystems 7 The Socioecological Model: Implementation and Contribution 8 Conclusion Notes Chapter 7: Critical Race Theory and Children’s Rights 1 Introduction 2 Critical Race Theory: An Overview 2.1 Origins 2.2 Basic Principles 2.2.1 “Race” Is a Powerful Social Construct, Not a Biological Reality 2.2.2 Identities Are Complex, Dynamic, and Intersectional 2.2.3 Unconscious Racism Is Pervasive and Often More Destructive Than Intentional Bias 2.2.4 Racism Is Structural and Has Always Been Ordinary, Not Exceptional, in American Society 2.2.5 Colorblindness Can Perpetuate Structural Racism 2.2.6 Assimilationism Contributes to Racial Subordination 2.2.7 Racial Realism Forces Us to Reject the Standard Narrative of “Progress” 2.3 Critical Race Theory and International Law 3 Race and International Human Rights Law 3.1 Prohibitions on Racial Discrimination 3.2 Limitations of Anti-Discrimination Provisions 3.3 A Critical Race Perspective on Children’s Rights 4 An Intersectional Approach to Race and Children’s Rights 5 Conclusion Notes Chapter 8: Feminist LegalTheory and Children’s Rights 1 Introduction 2 Overview: Feminism and FLT 2.1 Feminist Waves 2.2 The Emergence and Evolution of FLT 2.3 Convergences and Divisions 2.3.1 Sameness versus Difference 2.3.2 Women’s Interests: Essentialized or Intersectional? 2.3.3 Transnational Feminisms: Global Intersectionality, Global Focus 3 FLT Methods 3.1 Feminist Critiques of the Theoretical Status Quo 3.1.1 Public/Private Divides 3.1.2 Private Dependency 3.1.3 Rights Hegemony 3.2 Foregrounding Experiences 3.3 Integrating Theory and Practice 3.4 Understanding Law through Complex Identities 4 Tensions, Accords, and New Directions 4.1 Privacy, Redux: Parents’ Rights versus Children’s Rights 4.2 New Directions in FLT and Children’s Rights 5 Conclusion Notes Chapter 9: Intersectionality and Children’s Rights 1 Introduction 2 Intersectionality and Children’s Right to be Free from Forced Marriage 3 The Utility of International and State Laws against Child Marriage 4 At the Intersection of Cultural Norms and Practices: Challenging the Nucleus of Child Marriage 5 Intersectionality and Children’s Right to Family Integrity 6 Conclusion Notes Part III: SUBSTANTIVE LEGAL AREAS Chapter 10: The Best Interests of the Child 1 Introduction 2 Best Interests in Children’s Rights Law 3 Application of the Best Interests Principle 4 Impact of the Best Interests Principle 4.1 Defining the Best Interests of the Child 4.2 State Obligations 4.2.1 Weight Given to the Best Interests of the Child 4.3 Best Interests as a Substantive Right 5 Insights on Best Interests Notes Chapter 11: Citizenship and Rights of Children 1 Introduction 2 The Persistence of Statelessness 3 Children, Citizenship, and Migration 3.1 Citizenship and Children as Migrants 3.1.1 Children under the Refugee Convention 3.1.2 Citizenship and Forced Migration of Children under Regional Human Rights Frameworks 3.2 Children, Family Unity, and Migration 4 Conclusion Notes Chapter 12: The Child’s Right to Family 1 Introduction 2 Human Rights Charters Articulating Children’s Rights to Family 3 Perspectives on and Critiques of the Child’s Right to Family 4 Progress and Obstacles in Assuring the Child’s Right to Family 4.1 Right to Reunification 4.2 Right to Identity 4.3 Defining Family 4.4 Mainstreaming of Children’s Rights 5 Key Challenges Going Forward 6 Conclusion Notes Chapter 13: Child Participation 1 Introduction 2 Child Participation: A Right? 2.1 Adoption of the CRC to 2006, the Day of General Discussion 2.2 Day of General Discussion 2006 and General Comment No. 12 (2009) 2.2.1 The Day of General Discussion 2006 2.2.2 General Comment No. 12 on Article 12 of the CRC and Child Participation 3 Participation of Children and Adolescents: Some Examples 3.1 The Family 3.2 Education 3.3 Health Care 3.4 In Legal Proceedings 3.5 In the Community and Society 4 Concluding Remarks and Recommendations Notes Chapter 14: Juvenile Justice 1 Introduction 2 International Children’s Rights and Juvenile Justice at the International Level 2.1 Standard-Setting at the International Level 2.2 Standard-Setting at the Regional Level 2.3 A Comprehensive International Legal Framework and the Emerging Global Interest in Juvenile Justice 3 Implications of International Children’s Rights for Juvenile Justice 3.1 A Specific Justice System for Children 3.1.2 Specificity and Specialization 3.2 Fair Trial—Child-Friendly Justice 3.2.1 Children’s Right to a Fair Trial—Equal and Specific Rights 3.2.2 Right to Effective Participation—Child-Friendly Justice 4 Implementation of Children’s Rights: Reform and Persistent Challenges 4.1 Juvenile Justice Reform 4.2 Implementation of International Children’s Rights: A Serious Challenge in Different Ways 5 Conclusion Acknowledgment Notes Chapter 15: Placing Children’s Freedom from Violence at the Heart of the Policy Agenda 1 Introduction 2 Violence against Children: A Global Concern 2.1 Violence: A Beginning in Early Childhood 2.2 Violence: A Continuum in Children’s Lives 2.3 Violence: A Pressing Risk within and across Borders 3 Children’s Protection from Violence: A Core Dimension of States’ Accountability for Children’s Rights 4 Children’s Protection from Violence Must Be at the Heart of the Policy Agenda 4.1 From the Periphery of the Debate to the Center of the Policy Agenda 4.2 Overcoming Challenges and Seizing Strategic Opportunities to Safeguard Children 4.2.1 Breaking the Invisibility of Violence against Children 4.2.2 Reactive and Fragmented Responses and Actions 4.2.3 Weak Monitoring and Evaluation of Progress 4.3 Promoting the Agency of Children 5 Conclusion Notes Chapter 16: Continuing dilemmas of International Adoption 1 Introduction 2 Adoption 3 International Adoption: The Human Rights and Children’s Rights Framework 3.1 The Legal Framework for International Adoption 3.2 The Process of International Adoption: The United States as an Illustration 3.3 Criticisms of the Current International Legal Framework 4 The Decline of International Adoption 4.1 Reasons for the Decline 4.2 The “Rehoming” Issue 5 Practical Recommendations 6 Beyond Practical Recommendations and Legal Doctrines: Critical Legal Perspectives 6.1 Critical Race Theory and Postcolonial Theory 6.2 Feminist Legal Theory 7 Conclusion: The Future of International Adoption Notes Chapter 17: Economic and Labor Rights of Children 1 Introduction 2 What Are Economic and Labor Rights? 3 Do children Have Economic and Labor Rights? 4 What Do Economic and Labor Rights Mean for Children? 5 Why Children Must Have the Right to Work 6 Children’s Right to Work as a Living Economic Right 7 Conclusion Notes Chapter 18: The Health Rights of Children 1 Introduction 2 The CRC: A Child’s Right to Health 3 Contribution of the Committee on the Rights of the Child: A More Critical View 4 The Child’s Right to Health in the Context of International Development 4.1 The World Health Organization 4.2 UNDP and the Sustainable Development Goals 5 Progress in the Implementation of Children’s Health 6 A Rights Approach to Child Health 7 Conclusion Notes Chapter 19: Revisiting the Three ‘R’S in Order to Realize Children’s Educational Rights: Relationships, Resources, and Redress 1 Introduction 2 Relationships 2.1 Case example: Children’s Relationships with Teachers in Schools 3 Resources 3.1 Case Example: Children’s Participation in Resource Allocation for Schools 4 Redress 4.1 Case Example: Children Demand Their Rights 5 Conclusion Notes Chapter 20: Poverty and Children’s Rights 1 Introduction 2 Child Rights Anti-Poverty Work: Part of a Broader Picture 3 Child Poverty and Child Rights—Making the Connection through the CRC 3.1 Poverty in the CRC: Nowhere but Everywhere? 3.2 Addressing Poverty through the Right to an Adequate Standard of Living 3.3 From Article 27 to General Comment No. 19: The Role of Budgets and Resources in Addressing Poverty 4 Conclusion: A Brave New Dawn? Child Poverty, the SDGs, and Child Rights Notes Chapter 21: Situating the Rights versus Culture Binary within the Context of Colonial History in Sub-Saharan Africa 1 Introduction 2 Individuality versus Collectivism: Creation of a Binary between the West and the Rest 3 Situating the Rights versus Culture Binary within the Context of Colonial History 4 A Dualistic Approach to Human Rights and Culture: A Legacy of Colonialism 5 Implications of a Dualistic Approach for Children’s Rights Discourses 6 Conclusion Notes Chapter 22: Climate Change and Children’s Rights 1 Introduction 2 Relevant Children’s Rights (Human Rights) Law 2.1 Relevant Provisions in the CRC 2.2 The Right to a Healthy or Adequate Environment 2.3 The Paris Agreement on Climate Change 3 Assessment of the Law, including Relevant Perspectives and Critiques 3.1 The Convention on the Rights of the Child (CRC) 3.1.1 Guiding Principles 3.1.2 Survival and Development Rights 3.1.3 Protection Rights 3.1.4 Participation Rights 4 Impact of the Law—Progress and Obstacles 4.1 Children’s Access to the Complaints Procedure before the CRC Committee 4.2 Legal Obstacles to Climate-Related Cases before Regional Human Rights Courts 4.2.1 Children’s Standing before Regional Human Rights Courts and Commissions 4.2.2 Other Legal Obstacles 4.2.2.1 The European Court of Human Rights 4.2.2.2 The Inter-American System of Human Rights 4.2.2.3 The African System of Human Rights 4.3 Claims by Children before National Courts 5 Conclusion: Key Challenges and Possibilities for the Way Forward 5.1 Challenges for States 5.2 Challenges for Regional Human Rights Courts and Monitoring Bodies 5.3 Possibilities for Children with the Support of Children’s Rights NGOs 5.4 Conclusion Notes Part IV: SELECTED INDIVIDUAL AND INSTITUTIONAL ACTORS Chapter 23: Taking Part, Joiningin, and Being Heard?: Ethnographic Explorations of Children’s Participation 1 Introduction 2 The Two Studies 2.1 An English Context 2.2 Article 12 2.3 Subjectivity and Agency 2.4 Two Local Contexts 2.5 Ethnographic Methodology 3 Ethnographic Vignettes 3.1 Getting Inclusion “Done”? 3.1.1 Stressy Spring-Time Show 3.1.2 Against the Grain 3.2 Being “Seen” and “Heard” 3.2.1 Anger Management 3.2.2 The “On-Task” Researcher 3.3 Moral Regulation: Speaking the Right Script 3.4 What Is it You Want Me to Say? 3.5 Moral Rectitude 4 Discussion 5 Conclusion Notes Chapter 24: National Human Rights Institutions for Children 1 Introduction 2 Issues Affecting Effectiveness of IHRICs 2.1 Legislative Mandate 2.2 Independence 2.3 Structure 2.4 Complaints and Investigations 2.5 Participation 2.6 Accessibility and Outreach 3 Conclusion Notes Chapter 25:Examining the UN Committee on the Rights of the Child through the Lens of Caste- and Descent-Based Discrimination 1 Introduction: The Importance of the CRC Committee 2 A Nepalese Father, His Daughter, and the History of Article 2 of the CRC 3 Caste- and Descent-Based Discrimination: 250 Million People 4 The CRC Committee and Caste- and Descent-Based Discrimination in Three Countries 4.1 India 4.2 Nepal 4.3 Mauritania 5 Caste Discrimination Makes Implementation of Other Rights Harder 6 Assessing Progress, Looking Forward 6.1 Religious Rules and Beliefs 6.2 Dalit Children Learn to Be Subservient and Not to Have Horizontal Relationships 7 Conclusion: The CRC as an Instrument to Change Inequality Acknowledgment Notes Part V: SELECTED POPULATIONS Chapter 26: Embracing Our LGBTQ Youth: A Child Rights Paradigm 1 Introduction 2 Issues and Problems Affecting LGBT Youth 2.1 The Family 2.1.1 In General—Rejection and Its Consequences 2.1.2 Efforts to Change the Sexual Identity 2.1.3 Consequences of Family Rejection: Homelessness, Poverty, and Sexual Violence 2.1.4 Structural Inequalities 2.2 Schools 2.2.1 Intimidation, Bullying, Harassment, and Persecution 2.2.2 Discrimination 2.2.3 Consequences of Harassment and Discrimination 2.2.4 Alleviating Factors 3 Global Attitudes 4 Legal Frameworks 4.1 International Framework 4.2 Regional Framework 4.2.1 State Framework 5 Conclusion Notes Chapter 27: Indigenous Children 1 Introduction 2 Who Is Indigenous? 3 International Law Protections for Indigenous Children 3.1 Declaration on the Rights of Indigenous Peoples 3.2 ILO Convention No. 169 3.3 Convention on the Rights of the Child 3.4 Convention on the Elimination of All Forms of Racial Discrimination 3.5 Advisory Bodies, Treaty Bodies, and Special Rapporteurs 4 The Potential Power of International Indigenous Children’s Rights 5 Conclusion Acknowledgment Notes Chapter 28: Children with Disabilities: Achievements, Prospects, and Challenges Ahead 1 Introduction 2 Children with Disabilities: The Population at Stake 3 Children’s Rights: Legal Framework 4 Inclusive Education: Can Separate Be Equal? 5 From Institutionalization to Community Living 6 Conclusion Notes Chapter 29: Independent Children 1 Introduction 2 Definitional and Conceptual Issues 3 Children in Street Situations 4 Child-Headed Households 5 Married Children 6 Final Reflections Notes Chapter 30: Trafficked Children 1 Introduction 2 Who Are Trafficked Children? 3 Numbers of Children Who Are Trafficked 4 The International Law Framework 4.1 The Three “Ps” 4.2 Related Treaties and Terminology 5 Different Interpretations of What Constitutes Child Trafficking 5.1 Varying Interpretations of Key Terminology 5.2 Inappropriate or Imprecise Labeling of Cases as Child Trafficking 5.3 Interpretations by Particular States of What Needs to Be Done to Combat Trafficking 6 Trafficked Children’s Rights to Protection and Assistance 6.1 Protection and the Non-Punishment Principle 6.2 Access to Justice and Remedies via Courts 7 Preventing Child Trafficking 8 Conclusion Notes Chapter 31: Children in Armed Conflict 1 Introduction 2 Practices of Child Soldiering 3 Legal Responsibility for Child Soldiering 4 Penal Responsibility of Child Soldiers 5 Reintegration and Homecoming 6 Conclusion Notes Chapter 32: Working Toward Recognition of the Rights of Migrant and Refugee Children 1 Introduction 2 Rights versus Realities: Applying the Convention on the Rights of the Child and Core Human Rights Principles to All Categories of Migrant Children 3 Children’s Rights in the Context of Immigration Enforcement and Status Determinations 3.1 A State’s Obligations to Child Migrants When Implementing and Enforcing Policies, Procedures, and Practices Designed to Regulate (and Restrict) Entry and Stay in Country 3.1.1 Liberty Interests of the Child 3.1.2 A Child’s Right to Seek Asylum 3.1.3 A Child’s Right to Participation and Accompanying Rights to Due Process and Access to Justice 3.1.4 Rights vis-à-vis the Family 3.2 Meeting the Best Interests and Full Development of the Migrant Child Residing in Host Country 3.2.1 The Right to Education: Dreams Deferred 3.2.2 The Right to Health: Barriers to Access 3.2.3 Rights in Work: Hazards, Abuses, and Justice Denied 4 Conclusion: Looking Forward to Developing Global, Regional, and Local Practices That Serve the Best Interests of the Child Notes Part IV: CONCLUSION Chapter 33: Human Rights Education Education about Children’s Rights 1 Introduction 2 The Need for Children’s Human Rights Education 3 The Movement for Human Rights Education 4 Models of Children’s Human Rights Education 5 The Challenge for Children’s Human Rights Education Notes Chapter 34: Children’s Rights in the Twenty-First Century: Challenges and Opportunities 1 Introduction 2 Cross-Cutting Themes 2.1 The Time-Sensitive Nature of Children’s Rights 2.2 The Interrelated Nature of Rights 2.3 Autonomy 2.4 Participation 2.5 Taking Children’s Rights Seriously 3 Current and Emerging Critical Topics 3.1 Large-Scale Human Rights Crises 3.2 The Role of Private Sector Actors 3.3 Technology 3.4 Genetics, Epigenetics, and Scientific Advances 3.5 Populism and the Attack on Rights and on Children 3.6 Violence against Children 3.7 Climate Change 4 Conclusion: A Vision of Hope Notes Index Présentation de l'éditeur : "Children's rights law is a relatively young but rapidly developing discipline. The U.N. Convention on the Rights of the Child, the field's core legal instrument, is the most widely ratified human rights treaty in history. Yet, like children themselves, children's rights are often relegated to the margins in mainstream legal, political, and other discourses, despite their application to approximately one-third of the world's population and every human being's first stages of life. Now thirty years old, the Convention on the Rights of the Child (CRC) signalled a definitive shift in the way that children are viewed and understood--from passive objects subsumed within the family to full human beings with a distinct set of rights. Although the CRC and other children's rights law have spurred positive changes in law, policies, and attitudes toward children in numerous countries, implementation remains a work in progress. We have reached a state in the evolution of children's rights in which we need more critical evaluation and assessment of the CRC and the large body of children's rights law and policy that this treaty has inspired. We have moved from conceptualizing and adopting legislation to focusing on implementation and making the content of children's rights meaningful in the lives of all children. This book provides a critical evaluation and assessment of children's rights law, including the CRC. With contributions from leading scholars and practitioners from around the world, it aims to elucidate the content of children's rights law, explore the complexities of implementation, and identify critical challenges and opportunities for children's rights law." Children's rights law is a relatively young but rapidly developing discipline. The UN Convention on the Rights of the Child (CRC), the field's core legal instrument, is the most widely ratified human rights treaty in history. Yet, like children themselves, children's rights are often relegated to the margins in mainstream legal, political, and other discourses. This book provides a critical evaluation and assessment of children's rights law, including the CRC. With contributions from leading scholars and practitioners from around the world, it aims to elucidate the content of children's rights law, explore the complexities of implementation, and identify critical challenges and opportunities for children's rights law.-- Provided by publisher