The children's rights convention
The UN Convention on the Rights of the Child
The UN Convention on the Rights of the Child has existed for over 30 years. The movements of working children invoke these rights and at the same time make it clear that the convention and its interpretations do not yet do justice to the demands and life situations of many children – they want to be involved in the further development of the convention and other international documents which affect them.
Origin and content of the Convention on the Rights of the Child
The debate on children's rights today revolves mainly around the international Convention on the Rights of the Child. The aim of this convention was that children should have specific basic rights to which they can refer to. After ten years of preparatory work, in which numerous governments and ultimately also NGOs were involved, the UN Convention on the Rights of the Child (CRC) was finally adopted unanimously by the United Nations General Assembly on 20 November 1989. The Convention entered into force as an international law on 2 September 1990 and has been ratified by all countries of the world except the USA. However, it is still unclear how children themselves can enforce their rights in practice.
The Convention formulates three types of rights which can be assigned to the following groups: protection, provision, participation. In the first group, the Convention guarantees children - according to the Convention all people up to the age of 18 - protection from maltreatment, from economic and sexual exploitation and from discrimination on the basis of "race", gender or minority status. In the second group, it certifies that children have the right to undisturbed early childhood development, health care, (primary) school education and, in general, to decent living conditions. In the third group, it grants children the right to their own name, to citizenship, to freedom of information and expression, to be heard in decisions which affect them and, finally, the right to assemble peacefully and to form their own associations.
Since the Convention on the Rights of the Child is to be seen as part of human rights, the three core principles of universality, indivisibility and interdependence also apply here. In other words, children's rights apply to all children worldwide, no right can be singled out or applied individually, and thirdly, they are interdependent and can only be fully realised as a whole.
Significance and benefits of the Convention on the Rights of the Child
In the context of children's movements, the question arises as to what role the Convention assigns to children in the realisation of their rights and the attainment of a life in dignity. Once a state has ratified the CRC, it is obliged to take appropriate measures to realise children's rights, i.e. to amend national laws and regulations in line with the CRC. It must account for this every 5 years in a report to the UN Committee on the Rights of the Child. Civil society is also requested to submit a "shadow report" to the Committee. This Committee in Geneva consists of 18 experts nominated by States and elected by the UN General Assembly. After analysing the reports, it is authorised to issue statements, point out shortcomings and make recommendations, as well as to reprimand a state for violating children's rights or lacking protection against violations of children's rights. However, it may not impose sanctions, but tries to build up public pressure.
Due to the imprecise and vague wording in the CRC, though, individual states have a great deal of room for manoeuvre and discretion in implementing this convention. For example, Art. 1 of the CRC already states that each state itself determines up to what age its citizens are considered children ("minors") within the meaning of the Convention. For example, German laws state that a person reaches the age of majority when he or she turns 18. Furthermore, the rights of participation contained in the Convention are either formulated in such a vague and general way or are made dependent on conditions to such an extent that adults again ultimately have the last word "in the best interests of the child". According to the logic which determines the Convention, the child appears first and foremost as a being in need of protection and assistance from adult society. The arbitrary interpretations by the ruling authorities thus suggest that formally granted rights may ultimately become irrelevant.
Since 2014 there is an "individual complaint mechanism". If states have ratified a corresponding additional protocol, individual children (or their representatives) from these states can file a complaint with the UN Committee on the Rights of the Child against the violation of their rights. However, they must first go through the national legal process without success, which is an extremely complicated and lengthy process. The Committee can also investigate cases of particularly serious violations of children's rights without a direct complainant. But here too, the above-mentioned dilemma remains: the Committee can only reprimand states, it has no further sanctioning options. The approximately 40 complaints submitted to the Committee so far (as of 2020) come mainly from European and some Latin American countries. Independently of this right to individual complaints, children have turned to the UN Committee in recent years to defend themselves against the violation of their rights. Here are two examples: The children's movement MOLACNATS complained to the Committee in 2017 about the lack of opportunities to participate in ILO conferences. In 2019, the climate protection activist Greta Thunberg and 15 other children also complained to the committee about insufficient action by several states to combat the threat of a climate catastrophe. In this way, the children were at least able to achieve a certain degree of publicity.
The perspective of working children on the Convention on the Rights of the Child
The term "child labour" is not used in the CRC. However, Article 32 of the CRC provides protection for children against economic exploitation and hazardous work. Children are also to be protected from "performing work" which interferes with their education, health or physical, mental, spiritual, moral or social development. In order to guarantee this, the CRC declares that states should set one or more minimum ages for admission to work and provide regulations on working hours and working conditions. It should be noted that these formulations leave states free to set different minimum ages for different forms of work. Articles 33, 34, 35 and 38 of the CRC deal with other fields of activity of children from which they should be protected, such as drug trafficking, prostitution or soldiering. Obviously, these formulations contain a lot of room for interpretation. It is therefore important for working children that their perspectives are taken into account in protection concepts. Since the participation rights of the CRC are to be considered interdependent with these rights, they have, in theory at least, a right to this.
In order not to expose themselves to the arbitrariness of the respective countries, the organisations of working children explicitly claim to understand children not only as beneficiaries of special rights which adults have defined in their favour, but as active beings with their own views, interests, skills and judgements. Furthermore, children's movements not only invoke their rights as children, but also point the finger at certain anti-subject characteristics of the societies in which they live and point out alternatives. In doing so, they take up rights that are related to their reality. In other words, they ask very specifically which rights are useful to them and what is being done to make them practical. The children do not want to be instrumentalised as alibis.
The movements generally agree that children not only have the right but also the ability to act as social subjects and to play a protagonist role in society. Since the adoption of the CRC at the latest, all movements have been referring to the children's rights enshrined in it with different emphases. However, they also claim rights which are not contained in the Convention or question how UNICEF, governments and NGOs interpret the Convention and deal with it in practice. In some children's movements, the invocation of children's rights goes so far that they insist on having a say in the drafting of laws and sometimes even intervene in legislation.
The demand of working children for more participation also extends to the economic sphere. Not all children's movements claim the "right to work", but they insist on the recognition of their economic role in society and derive from this an extended claim to political participation. They know from their own experience that they are basically only taken seriously and can only claim their rights if their social position is supported by an economic or useful activity and, under certain circumstances, their own income.
In summary, it can be said about the UN Convention on the Rights of the Child that it promises children the right to a humane presence and a self-determined social identity. However, it does not have any significant consequences as long as children continue to be regarded in society primarily as victims and deficient beings who are only in need of protection. As long as children are denied the ability to recognise and represent their own interests, the determination of the child's best interest (the so-called "best interests of the child") is left to the discretion of adults. Moreover, the question of the rights of future generations remains unresolved.