Research proposal: “Understanding
Children’s Rights”
By Marieke J. Hopman
Contents
Introduction ......................................................................................................................................... 3
0. The ground level, or foundation: this level will build up the theoretical and methodological
framework for the research.................................................................................................................. 5
1.
0.1
Levels of law: epistemological framework ......................................................................... 5
0.2
Methodology for socio-legal field research on children’s rights ......................................... 5
Children’s rights in practice: field research................................................................................. 7
Case study 1: The child’s right to education (art. 28, 29 CRC) in the Central African Republic
and the Netherlands ......................................................................................................................... 7
Case study 2: The best interest of the child (art. 3 CRC) in the Turkish Republic of Northern
Cyprus (TRNC) and the Netherlands .............................................................................................. 8
Case study 3: The right to be protected against sexual exploitation in the United States:
Massachusetts and the Netherlands ................................................................................................. 9
2. The second level, or overarching level: a more general philosophical/legal reflection on the
socio-legal position of the child in the international legal community ............................................. 11
2.1
Literature review: the socio-legal position of the child in the international legal
community ..................................................................................................................................... 11
2.2
A philosophical analysis of the three case studies ............................................................. 12
3. Expected results............................................................................................................................. 13
Literature ........................................................................................................................................... 15
Introduction
Although we only recently celebrated the 25th anniversary of the 1989 UN Convention on the
Rights of the Child (hereafter CRC), it seems that the need for legal protection of children is
one of the few things that generate an extremely high level of consensus in the international
legal community. At the same time, however, children’s rights are grossly violated on a daily
basis and on a global scale. In fact, despite the popularity of the human rights and children’s
rights discourse, UNICEF director Anthony Lake argued that in 2014 ‘Children have been
killed while studying in the classroom and while sleeping in their beds; they have been
orphaned, kidnapped, tortured, recruited, raped and even sold as slaves. Never in recent memory
have so many children been subjected to such unspeakable brutality’.1 It seems therefore that
there is no legal domain in which the discrepancy between formal law and social reality is as
great as when it comes to children’s rights.
How can this be? Maybe we are asking the wrong question.2 The working hypothesis of the
proposed research is that to understand children’s rights, we have to analyze the socio-legal
position of the child within the international legal community, specifically moving beyond the
de jure / de facto distinction. To this purpose, it will start by creating a new epistemological
framework and a corresponding (qualitative) research methodology to research children's
rights.
Children’s rights researchers argue that one of the most immediate needs in the research field
is the need of conceptual and analytical instruments for the understanding of children’s rights.3
Children find themselves in an interesting socio-legal position; they are often positioned as a
kind of possession of the parent, even though they have individual rights. They are positioned
as citizens of the state, even though they have never contracted. They are sometimes positioned
as active agents, sometimes as passive objects. The fact that the CRC has been ratified by 190
UN countries4, however, seems to imply that there is a universal consensus on the position of
the child in the international legal community; namely, a young person who has a need of
special protection, participation and provision rights.5
1
See: http://www.unicef.org/media/media_78058.html, accessed 17-01-2015
This line of thought is expressed in Jonathan Turley's overview of the Critical Legal Studies (CLS) movement, as
designating the gensis of the movement. Turley quotes from The Hitchhiker's Guide to the Galaxy. the scene in which the
advanced computer "Deep Thought" gives the Answer to the "Ultimate Question of Life, the Universe, and Everything
Else". 'When his interrogators complained that the answer "forty-two" fell significantly short of their expectiations, Deep
Thought replied that the problem was not in the answer but rather in the fact that they "never actually knew...the question".
The genesis of the CLS movement can be traced to a similar recognition.' (Turley, J. (1987). The Hitchhiker's Guide to CLS,
Unger, and Deep Thought. Northwestern University Law Review, No. 81: p. 593-594.). The proposed research attempts to
depart from a similar starting point, taking CLS studies into consideration, yet parting ways with regard to CLS's main thesis,
the rejection of value-neutral legal systems (p. 599, 600) and its attack on liberalism (p. 601-602).
3 cf. Liebel (2012), Alanen (2009), Hanson (2012) and many others
4 Over exception 2 countries
5 Generally the CRC rights are referred to by these “three p’s”. See for example Children’s Rights Committee, general
comment No. 12 (2009), p. 8.
2
The proposed research is an interdisciplinary research, combining philosophy, law and
sociology in trying to understand children’s rights. The proposed research will consist of three
interconnected parts:
0. The ground level, or foundation: this level will build up the theoretical and
methodological framework for the research
1. The first level, or the level of the legal field: this level will consist of three case
studies, cases related to the CRC, which will be subjected to field research and legal
research
2. The second level, or overarching level: this level will include a more general
philosophical/legal reflection on children’s rights in the light of the international
community
Ultimately, the aim of the research is to create a new understanding of children’s rights which
opens up (possibilities for) social transformation.
0. The ground level, or foundation: this level will build up the theoretical and
methodological framework for the research
At the ground level of the proposed research I want to look into possible new analytical and
conceptual instruments for understanding children’s rights, posing a theoretical framework
consisting of the following elements:
0.1 Levels of law: epistemological framework
To understand the position of the child in the international legal community, understanding law
as (any kind of) formal law that addresses citizens seems to be a too limited perspective. To say
that children have a de jure right to education, though they are not de facto educated, leaves us
with limited understanding of the actual socio-legal situation of the child whose right is
violated. I intend to argue that there is in fact a legal distinction between a situation in which a
child has a formal right to education but is deprived of education by a government whose
unwritten policy is to prevent, say, Muslim children from entering the school, and a situation
in which a child has a formal right to education but is deprived of education because armed
conflict has rendered going to school unsafe.
In many countries formal laws related to children are in perfect harmony with the CRC and
other international treaties, and yet discrepancies between formal law and government policy
are common. The government (in some cases) actively pursues a different policy than is written
down in formal law – and this is publicly well-known, including the consequences of
transgressing this “unwritten law” (as is the case with the example of the Muslim child). In this
situation, the “formal law” turns into a meaningless piece of paper, a useful tool for avoiding
interference by the international community. In some situations, the government pursuing a
different policy than dictated by the formal law is not publicly known – such as, for example,
the secret military recruitment and training of homeless children. In this case, this is the level
of hidden power. This threefold distinction (formal written law, law for the community and
non-public law) can serve as a starting point for a framework which can be used to understand
the position of the child in the international legal community.
0.2 Methodology for socio-legal field research on children’s rights
To research the socio-legal framework in which the child is positioned, in relation to a specific
legal (children’s) right in a specific legal order, a qualitative research methodology is required.
Especially in the light of the aforementioned epistemological framework that aims to go beyond
the formal law/social reality dichotomy, qualitative field research is a precondition for
understanding the position of the child in relation to a specific right, in a specific cultural
context.
I propose to combine literature research, legal research and field research. For the field research
I intend to use the academic method of concept mapping, as described by Trochim (1989),
Petrucci & Quinlan (2007) and Kinchin et al. (2010): a ‘mixed-methods strategy that captures
the rich conceptual data from communities of interest on a particular question or topic’,6
6
Petrucci & Quinlan, 2007: p. 27.
combined with Socratic dialogue.7 This method of concept mapping is used in different
academic disciplines, mostly in social sciences, but rarely in legal research.8 The method can
be used to discuss the meaning of certain concepts with relevant parties (in this case: children,
adults, professionals working with children, actors from the socio-legal field such as NGO
employees and children’s rights lawyers, and government officials).
The idea is to place the individual in its current socio-political situation; to look for both what
the law actually is in relation to children’s rights, according to the respondent, at this moment
in this situation (the “actual-ought”) and what people think it should be (the “should-ought”).
7
Socratic dialogue is added to the research method, so as to be able to adjust the method to move beyond the sorting of
concepts researching, together with the respondent, the underlying legal, social and normative convictions of the respondent.
8 I have knowledge of one instance when this research method was used within the legal realm, namely with the research
performed in the Netherlands for the drafting of the new youth law (2014). See: Vogelvang, L. and Kempes, M. (2014):
“(Jong)Volwassen? Gebruik indicatiecriteria adolescentenstrafrecht”. Den Haag: Ministerie van Veiligheid en Justitie /
Nederlands Instituut voor Forensische Psychiatrie en Psychologie, p. 11-19. In addition, I used the methodology for the field
research of my own MA thesis on children’s rights.
1. Children’s rights in practice: field research
As explained above, the intention of the proposed research is to study the position of the child
within the legal order on different levels. Taking that law is not just something you can
understand by studying law books and jurisprudence, but granting that law is more complex
and has to be understood in relation to social reality and locality, the research will include three
case studies:
1.1 Case study 1: The child’s right to education (art. 28, 29 CRC) in the Central African
Republic and the Netherlands
1.2 Case study 2: The best interest of the child (art. 3 CRC) in the Turkish Republic of
Northern Cyprus (TRNC) and the Netherlands
1.3 The right to be protected against sexual exploitation (art. 34, 35 CRC) in the United
States: Massachusetts and the Netherlands
Since the CRC poses children's rights as universal, thereby implying a universal understanding
of the child within specific legal orders, I have chosen to research each children's rights article
in two profoundly different socio-legal cultures, assuming that this will grant a more profound
understanding of the socio-legal position of the child in the international community. 9
These case studies have been selected based on the challenge they pose for the modern
conception of children’s rights. They raise questions regarding the child-adult distinction,
questions of agency versus structure, subject/object distinction, etc. In addition, they have been
selected for their potential to provide new information about the wrongs from which children
suffer. For each of the cases, there are indications that these children’s rights articles are grossly
violated in a certain state, yet they are under researched. By using this approach I can both
present new, necessary and useful data on children’s rights violations, create awareness and
start my research from a relatively fresh and open position, the latter being an advantage for
testing and developing the new theoretical framework. Each of the case studies focusses on one
specific article of the CRC and concentrates on understanding these cases in their specific
cultural, yet simultaneously global, contexts.
For a reflection on how the three cases are internally connected, see 2.
Case study 1: The child’s right to education (art. 28, 29 CRC) in the Central African
Republic and the Netherlands
With current tensions in the Central African Republic (CAR), many public buildings have been
closed and schools are often out of operation – many have been closed since the start of the
conflict, which means they have been closed for more than three years. Hence, education is
inaccessible to many children. To address this problem, school kits are being distributed and
9
The Netherlands has been chosen as a prominent site for field research, both because of obvious practical reasons and
because of strong connections of the research to Dutch children’s rights organizations, such as Defence for Children the
Netherlands and Unicef NL. Through these connections, children’s rights organizations will be able to directly use the data
uncovered during field research. It also opens up possibilities for publication of data on children’s rights violations in popular
media. This choice does not reflect any bias as regards in what socio-legal culture children's rights would be "better" realized
or "worse" - rather, the idea is that studying specific children's rights in different socio-legal cultures will lead to mutual
clarification.
the UN are creating so-called “Temporary Safe Learning Spaces”.10 This practice is what is
referred to by the CRC committee as “non-formal education”.11
In the Netherlands the situation is completely different. There are sufficient schools and
materials. However, according to the 2014 report by the Dutch NGO Coalition for Children’s
Rights, there are concerns about the quality of education, in particular the ability of teachers to
guide the social-emotional development of children.12 In addition, in 2012 it was made public
by the Dutch minister of education that annually about 16.000 children do not attend school in
the Netherlands.13 It is unclear who these children are exactly. A 2012 report by Trimbos
Institute indicates that many girls ages 12-18 from the Roma community do not attend school.
The report suggests this problem but also argues that this phenomenon has not been sufficiently
researched.14
Case study 2: The best interest of the child (art. 3 CRC) in the Turkish Republic of
Northern Cyprus (TRNC) and the Netherlands
“The best interest of the child” as mentioned in the CRC art. 3 is addressed to “all actions
considering children”, by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, state parties and individuals legally responsible
for the child (parents, legal guardians, others).
With regard to the TRNC, there are many reasons to wonder whether a certain practice can be
argued to be in the best interest of the child, starting with growing up on internationally disputed
territory. In addition, socio-economic circumstances in the TRNC are poor and under
researched. For people who live on this internationally disputed territory, there is no way out.
There are hardly any options to make money on this part of the island, and very few will ever
have the option to leave the 3000 km2 of the island, including children who grow up in this
impasse. There is a lack of data on children’s rights violations in the TRNC. SOS Children’s
Village, who run a village in the TRNC, argue that ‘The political situation in North Cyprus has
an effect on the lives of children. The fact that the country is not recognised means that
international funding for projects is not always available’.15 No studies specifically into the
situation of children’s rights in the TRNC have been conducted.16 However, there are some
signs in popular media that indicate violation of children’s rights in the area.17
In the Netherlands, the political and economic climate is theoretically ideal for the realization
of the best interest principle. The country has been in a state of peace and prosperity for a long
time. One would expect that an agreement to always honour the best interest of the child would
easily be made a primary consideration. However, the best interest of the child has a particularly
obscure role in jurisprudence. For example in 2004 a 16 year old offender has been tried as an
See: UN report: Central African Republic (CAR) Situation Report NO. 32 – 1st July 2014.
Verheyde, 2006: p. 12
12 Kinderrechtencollectief, 2014: p. 50
10
11
13
14
Kamerstuk, ref. 396993
Van der Veen, de Jonge, et. al., 2012.
15 http://www.sos-childrensvillages.org/where-we-help/europe/northern-cyprus
16 In the 2012 UN report on implementation of the CRC in Cyprus, data about the TRNC is left out (p. 2).
17 On domestic violence against women and children: http://www.lgcnews.com/pass-this-law-protect-women-and-childrenagainst-domestic-violence/, on human trafficking and sex trade: http://www.lgcnews.com/economic-crisis-in-south-seesincrease-in-sex-trade-in-trnc/,
adult for shooting his teacher, even though several experts testified to his immaturity and how
it would be in his best interest to be tried as a child.18 In addition, many children’s rights
professionals point to the obscurity of the best interest article. It remains unclear what should
be considered what “the best interest of the child” are, and who is to decide on these.19
Case study 3: The right to be protected against sexual exploitation in the United States:
Massachusetts and the Netherlands
The issue of commercial sexual exploitation is a difficult and obscure issue in any culture. It is
often widely condemned and the subject of heavy penal and social consequences.20 Yet it is
also a global common practice, currently involving almost 7 million children globally,
according to recent estimates.21
In the US, there is little data available on the commercial sexual exploitation of children
(CSEC), due to there being ‘no national reporting measure currently in place to provide accurate
reporting of the numbers […]’.22 According to Estes & Weiner (2001) there is a ‘widespread
societal disbelief concerning the nature, extent and severity of the CSEC within the United
States’.23 There is a clear need for further research into the subject 24, especially in relation to
the child/adult/government distinction, as Marcus et. al. (2012) suggest, who write about ‘the
arbitrary division between child and adult built into the Trafficking Victims Protection Act
(TVPA) and the Commercial Sexual Exploitation of Children (CSEC) paradigm’, which
according to them ‘exclude the majority of market-involved adolescents from (…) protection
and support’, and ‘vanish the very real problems and needs of highly vulnerable young people
attempting to survive in difficult situations’.25
In the Netherlands, the issue of CSEC is put relatively high on the political agenda. Attention
is given to both children being exploited in the Netherlands, as to the role of Dutch nationals
who are involved in sexually exploiting children worldwide. Unlike the US, the Netherlands
have a National Plan dealing with Sexual Abuse of Children. Whether all counter measures are
18
See: Hopman, M.J. (2015). Je bent een kind als de wetgever dat vindt. Right (1), pp. 14-16.
19
See for example Alston, P. (1994) (ed.). The Best Interests of the Child: Reconciling Culture and Human Rights. Oxford:
Oxford University Press; Funderburk, C. (2013). Best Interest of the Child Should Not Be an Ambiguous Term. Children’s
Legal Rights Journal, Vol. 33, No. 2, pp. 229-266.
20
See for an interesting discussion of adult-child sexual relations and involved emotional responses, as well as a discussion
of children ‘socially constructed as beyond or outside our contract’, Children in the Global Sex Trade by J. O’Connell
Davidson (2005).
21 http://www.unicef.org/eapro/Fact_sheet_SexualExploitation.pdf, accessed 21-01-2015.
22 Smith et al., 2009: p. 75.
23 Estes & Weiner, 2001: p. 142.
24 As ECPAT International indicates in their 2006 report on CSEC in the USA: ‘There is limited information available on the
commercial sexual exploitation of children (CSEC) and adolescents within the United states. The absence of facts and figures
beyond estimates and small-scale local information highlights the pressing need for systematic and verifiable qualitative and
quantitative data to guide national level action’ (p. 11).
ECPAT International (2006). Global Monitoring: Report on the status of action against commercial sexual exploitation of
children: United States of America. Available at
http://resources.ecpat.net/A4A_2005/PDF/Americas/Global_Monitoring_Report-USA.pdf , accessed 5 January 2015.
25 Marcus et al, 2012: p.154, 155.
actually effective in prevention of sexual exploitation of children remains nevertheless
questionable.26 A lack of data concerns the sexual exploitation of boys.27
See for an evaluation: European Parliament, Directorate General for Internal Policies. Policy Department C: Citizens’
Rights and Constitutional Affairs. Gender Equality (2014). Sexual exploitation and prostitution and its impact on gender
equality. Available at http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493040/IPOLFEMM_ET%282014%29493040_EN.pdf
26
27
ECPAT International (2006). Global Monitoring: Report on the status of action against commercial sexual exploitation of
children: Netherlands. Available at http://resources.ecpat.net/A4A_2005/PDF/Europe/Global_Monitoring_ReportNETHERLANDS.pdf , accessed 5 January 2015.
2. The second level, or overarching level: a more general philosophical/legal
reflection on the socio-legal position of the child in the international legal
community
2.1 Literature review: the socio-legal position of the child in the international legal
community
An interesting scholar who questions the socio-legal position of the child, specifically in
relation to commercial sexual exploitation of children, is Prof. Julia O’Connell Davidson. In
her work, she questions the popular socio-legal image of the vulnerable child who needs
protection, adding that children in fact can be ‘victims of victimhood (i.e. harmed by the fact
that they are socially imagined as objects, without subjectivity or agency)’. 28 She discusses
children as being socially constructed as beyond or outside the social contract.29
Other relevant scholarly works on the subject are by philosophers Archard, Schapiro and
Worsfold, who question the meaning of the concept of childhood in relation to the child's legal
position. In law, interesting work has been done on (justification of) children’s rights, such as
work by Alston, Freeman, Hanson, Liebel. In sociology, several scholars discuss the social
position of the child in the international community, such as Boyden, James, Prout, Jenks. In
history, Goodwin and Finn have analyzed the historical position of the child from a ‘Just
Practice perspective’, hoping the historical exploration will ‘help grasp contemporary struggles
over the care and control of children’.30 I am hoping to connect these works to works in
philosophy of law and political philosophy that deal with the subject of the individual’s position
in relation to the legal order, in particular contract theory (Hobbes, Rousseau, Kant) combined
with the critique of social-legal power as expressed by Foucault and Nietzsche.31
28
2005: p. 19, 54.
2005: chapter 1.
30
Finn, J.L. (2013) “Judging Childhood”, in Children and Youth Services Review Vol. .35, pp. 1166-1173: p. 1167.
31 Nietzsche does not directly relate the individual to its position in the legal order, rather he perceives individual morality as
being the result of imprinting of values by means of force, upon people subjected to the few in power. I think his analysis of
the ‘genealogy of morals’ is relevant for understanding the socio-legal position of the child, which is the position of the
disempowered, who during childhood is told how to behave in the social world in which he or she is born, conditioning the
child according to existing social and legal rules. To Foucault, social and legal power serve to make people capable of living
within the law and of providing for his own needs. On the level of society this happens through discipline, which produces
'subjected and practised bodies, 'docile' bodies. Discipline increases the forces of the body (in economic terms of utility) and
diminishes these same forces (in political terms of obedience)'. This 'political anatomy' is at work specifically in education,
ultimately creating a natural body that is the target of mechanisms of power, manipulated by authority. The pedagogical
practice in particular is a period of disciplinary time, a time of training, detached from the adult time. Education embodies
'the theme of an [authoritarian] perfection towards which the exemplary master guides the pupil [...] mark[ing] the gradual
acquisition of knowledge and good behaviour [...]' (Discipline and Punish, p. 138, 146-147, 154-155, 159, 161). I will
investigate into whether this notion can be applied to understand the child's right to education specifically and the socio-legal
position of the child in the international legal community in general.
29
2.2 A philosophical analysis of the three case studies
Obviously, this part of the research has to be greatly informed by results from, and experience
during, field research. Some first thoughts so far on the interconnection between the three
case studies:
The idea is often expressed that (the right to) education (CRC art. 28 and 29) empowers
children. It is understood as having a double dimension ‘both as a right in itself and as an
indispensable means of realizing other human rights’, in a ‘both protecting and empowering
way’.32 However, children do not actually have a say in whether or not they want education,
and what this education should consist of. Education is, amongst others, a means of installing
certain beliefs and social habits in children, with regard to the socio-legal world, a system of
beliefs and habits that is usually prescribed by state government. It is empowering in the sense
that it enables children to take up a certain valued position within the social world. As
Karagianni et al. point out: ‘[e]ducational programs cannot be seen in strict educational terms,
as they evolve at the centre of the social fabric and are directly related to the social values and
relationships developed within the society’.33 Surely, education is argued by adults to be in the
child’s best interest. The “best interest principle” (art. 3 CRC) possibly reinforces a
subject/object relation between adult and child, since the adult decides what is in the best
interest of the child – which stands in stark contrast to the “child’s rights to participation” (art.
12 CRC). Commercial sexual exploitation is probably the clearest example of what is
commonly judged not to be in the best interest of the child, a possibility for which social and
legal protection of children are deemed essential. In dominant discourse on CSEC, agency of
the child is often completely denied.34 As Muntarbhorn argues, ‘in some cases, children are to
be protected absolutely irrespective of their consent’.35
The paternalistic stance of all three of these normatively informed rights is argued by some to
be harming the child to the point that children become ‘victim of their victimhood (i.e. harmed
by the fact that they are socially imagined as objects, without subjectivity or agency)’,36 thereby
defying the goals formulated as the end of children's rights in the preamble of the CRC.37
32
Verheyde, 2006: p. 7,9. See also: Karagianni, P. et. al. (2013): p. 83-84.
Karagianni, P. et al., 2013: p. 92.
34 O’Connell Davidson, 2005: p. 59.
35 Muntarbhorn, 2007: p. 25.
36 O’Connell Davidson, 2005: p 59.
37 Most importantly the goal of ‘ensuring the well-being of children'.
33
3. Expected results
In short, I am expecting the research to come up the following results:
 A new epistemological framework for the researching and understanding of children's rights
and a new methodology, based on the method of concept mapping, for socio-legal qualitative
field research on children's rights correlated to the epistemological framework. Or, in short: a
new theoretical, postmodern socio-legal framework for the understanding of children's rights.
 A more complete image of the socio-legal position of children in the international legal
community, an image that in turn will be interpreted/elucidated by means of philosophical
reflection.
 An understanding of power relations and law in relation to children's rights.
 Data on specific children’s rights violations in specific communities (CAR, TRNC,
Massachusetts, the Netherlands).
 Ultimately, a more profound understanding of the socio-legal position of the child in the
international legal community.
 Three interim reports on the three mentioned case studies.
 Several articles both in academic journals and popular media.
 A PHD thesis.
4. Timeline
2015
January – February: Planning campaign and finishing research proposal
April-June: Fundraising phase 1
Research phase 1: the child’s right to education in CAR and the Netherland
July – October: Research methodology, epistemology and preparing field research
November: Literature research right to education
December: legal research: right to education CAR, the Netherlands
2016
January – February: field research CAR
February - March: Campaign plan phase 2
March – April: field research the Netherlands
March 15 – June 15: Fundraising phase 2
May – June : processing results field research
July: Finishing research report phase 1
September: start research phase 2: “the best interest of the child” in TRNC and the NL
2017
January – February : campaign plan phase 3 and finish research proposal phase 3
March – June : fundraising for phase 3
September: Finish research report phase 2
October: start research phase 3: “commercial sexual exploitation of children” in USA en NL
2018
October: finishing research report phase 3
2019
March: Finishing total PHD research
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