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August 3, 2011

Children’s Rights are Wrong

Editor’s Note: This is an unofficial English translation of an article that appeared in the Swedish magazine NEO.

The parliament now has enough votes to make the UN Convention on a Child’s Right Swedish Law. The consequences are absurd and give children less protection than they have currently.

By Marten Schultz
Professor in Civil Law
Stockholm University

Illustration: Krista Nyberg

“Barnens rätt är fel”

Swedish language article from the magazine NEO.
Read the original article in Swedish
(requires Adobe Acrobat Reader).

David is 4 years old, and his daily life is shrouded in violence and threats. His father threatens him if he does not do what he is told to do. He is hit with a broomstick, his bottom gets spanked. Time after time, his father threatens him by raising his hand ready to strike.

However, the court system looks at the situation differently than one would expect. “To be convicted of abuse, the bodily injury must not be momentary, or quickly recovered from according to the Court. The court could not find any convincing evidence that the punishment had caused pain. (The father) was found not guilty.”

This troublesome story is found on the children’s rights organization UNICEF’s homepage. It is troublesome because obviously it is not allowable to threaten, hit, or spank one’s children. It is illegal even if the bodily harm is ever so fleeting nature or minimal. What UNICEF is not telling is that the court did not consider any other instances, but solely if a brief swat on the bottom that did not cause any significant harm or pain would constitute abuse. The court could not find the specific instance of a swat on the bottom abuse. In addition, the prosecution’s case was narrowly defined and further limited by evidence that did not support any graver allegations.

In essence, the UNICEF interpretation of this court case is tendentious attempting to create support, since UNICEF is working towards enacting the UN Child Convention to become law. This story plays into the public opinion that UNICEF continually is trying to promote: “If the UN Child Convention was law, the courts and authorities would be forced to take children’s rights seriously. Greater public awareness and knowledge for both public and private personas would increase the courage and the desire to act when a child is in danger.”

Since adopting the UN Child Convention as law is becoming almost synonymous with being kind to children, this introduction can be provocative. I would therefore like to state emphatically that I am do not believe that child abuse is acceptable, and that I do believe it is one of the most important responsibilities of the state to protect those who need the most protection. Children fall into this category. However, to make the UN Child Convention law is not promoting the interest of children.

On the contrary, the main objection to making the UN Child Convention law is not that it will be ineffective, but that it may have unintended negative consequences; negative implications for the legal system and for the protection of the human rights that children and adults enjoy, in all but a few rare instances.

UN Child Convention is not Swedish law, but by signing the Convention, Sweden is obligated to adhere to its mission and objectives.

The purpose of introducing a convention into the legal system is usually to hold the legal system responsible for upholding the norms of the convention. If the norms are not adhered to, it will lead to sanctions. These can be of various types. Most commonly they are of a civil nature. In a state governed by law it is not possible to sentence the judge or the Secretary of Social Services to jail for forgetting the UN Child Convention. On the other hand, failure to comply can be cause for claim indemnification. The State (or other government agencies) will have to pay for damages if the norms are not followed. It is here that the limitations of the UN Child Convention become apparent. If the convention is instituted it is reasonable to expect that its norms and rules are followed, and that failure to comply will lead to sanctions. That is the point for pushing the UN Child Convention to become law. However, the conventions articles are not written in a way that easily lends itself to clearly defined laws. The following are examples:

Article 27: States adhering to the convention recognize the right of every child to the standard of living which is required for the child’s physical, psychological, spiritual, moral and social development.

Article 28: States adhering to the convention shall promote and encourage international cooperation in regards to education issues, with particular focus on eliminating lack of knowledge and illiteracy in the entire world, and to facilitate the ability and access to scientific and technological know-how and modern teaching methods.

Article 29: States adhering to the convention are in agreement that the aim of children’s education is to ... develop respect for the human rights and basic freedoms, and also supporting the principles put forth by the United Nations convention.

If the UN Child Convention is to become law, it is reasonable to expect consequences for those not fulfilling the stated responsibilities. If one was to poll all 14-year-olds in Sweden in a telephone poll, I believe relatively few would be able to articulate what the UN’s Rights Conventions means in everyday life, and even less what it means to respect and adhere to these in daily life. If the UN Child Convention becomes law, every instance of not fulfilling the responsibilities must hold someone accountable. In reality this means that the state, i.e. the taxpayers, will be held liable for paying when a child asserts that his or her rights according to the UN Child Convention are not honored. It can become very expensive, but more importantly, almost ludicrous. To obtain an education that indoctrinates the children in the UN conventions system is not a right that deserves to be defended by the court system forcefully.

The debate about rights and how these are handled practically is influenced by two different catalogues of rights that formulate protection for basic human rights, both with roots in experiences from World War II: The European Convention and the UN Declaration.

In the evolutionary process in the discussions of rights, the European Convention has proved to be most sustainable. The European Convention is a well thought through, carefully articulated complete document covering basic human rights. It is also a useful document (catalogue) with practical applications. The European Convention is written in such a manner that is can be used as the basis for judicial decisions and concrete judicial implications for violations. The authors of the European Convention avoided the trap that the UN Child Convention authors’ fell into. While the UN Conventions, including the Child Convention, include social and positive rights (welfare rights) like for example: “the right to development,” the authors of the European Convention choose to only focus on “actual” rights, those who were famously coined “negative rights” by philosopher Isaiah Berlin.

Negative rights mean that one has the right to avoid certain treatments. The right to not be murdered or tortured is some of the most fundamental rights, but even the right to freedom of speech, freedom to join or not join an organization.

The negative rights that the European Conventions concentrate on are the background for what I called Sweden’s silent revolution of rights, in my previous article in NEO. (Paulina Neuding and Fredrik Bergman also look at this topic on pages 22–26.) The definition and terminology of rights is once again debated seriously within the judicial system, since the courts are beginning to hold the State and the local municipalities accountable for respecting and protecting these rights. The European Convention has given the individual a weapon by which to fight back against the State. Social rights, or so called welfare rights, are different for example the “right to development” or the right to knowledge and education to respect the UN Conventions, and the problem is that if they are adhered to can easily be in conflict with those rights outlined in the European Convention. If an individual is given “social rights” that are worth anything greater than the paper they are printed on, it is necessary for someone to have corresponding accountabilities and responsibilities. The requirement to provide such rights means infringement on the negative rights. If person A has a right to a job, someone (person B) must be held accountable for providing this job. Person B’s negative rights are now violated as he or she is forced to use his or her resources in an undesirable manner. The conflict between the negative rights and the positive rights is the fundamental reason why it is a bad and dangerous idea to approve the UN Child Convention and make it Swedish Law. But there are other reasons.

That the UN Child Convention would be included in the statue book is not unusual. A convention can have significance without becoming statue. When Sweden acknowledges and signs a convention, the state obligates itself to attempt to comply with it and achieve its objectives. This happens as the UN Child Convention is taken into consideration when formulating laws and statues and when other decisions are made. Sweden has enthusiastically embraced intentions of the UN Child Convention as evident by the influence this convention has had on not only on recent legislations, but by the formation of a special government agency—The Child Ombudsman—who is charged with tracking compliance with the convention within the country. The main concepts of the convention have become key concepts within judicial proceedings. The most important example is “the child’s best,” which is a fundamental idea in the rights of Swedish children, but also in given large credence in specific situations such as custody cases. Reality is that the convention has had such strong influence that the courts frequently treat the convention as if it was law, leading to court systems not only interpreting but implanting law.

Despite the support for the UN Child Convention, it is not surprising that UNICEF still argues for and intensely lobbies for making the convention law. UNICEF is out to serve its interests; UNICEF is a UN organization and the UN Child Convention is a UN document. Of greater interest is the change of attitude found among the legislators. Several parties for a long time had been making the UN Child Convention law on their platforms. I particularly associate this cause with Folkpartiet [Translator’s note: considered a liberal party to the right of the socialists and often joins coalition governments with two other parties to create a majority versus the socialists and communist party.] However, there is not a majority in the legislature to pass this as law. Recently [Member of Parliament] Hakan Juholt changed his opinion, and asserted that even the Social Democrats now desire to support a bill to make the UN Child Convention law. With this change, there is now a majority support for this bill, since Folkpartiet, Miljopartiet [Translator’s note: a small party that initially ran on green and environmental issues but is now talking on other causes as well] and Vansterpartiet (Translator’s note: the communist party that recently dropped the word “communist” from its party name, although it is considered to be to the left of Social Democrats on the political spectrum) already have indicated their support for this bill.

At the risk of sounding condescending, it appears that many politicians who are supporting this bill, in contrast to the experts from Child Ombudsman agency, frequently do not have any real arguments for why to support the bill other than to show support for children, to “be on the side of the child.”

The facts are that the arguments for the support, and this may seem ironic, are particularly naive and infantile. UNICEF’s campaign is simplified so that the copy writers responsible ought to feel uncomfortable. I would like to believe that our legislature already takes children’s rights seriously. It is their duty. Children are humans, and basic human rights have strong support and protection in the Swedish judicial system through its catalogue of rights included in the constitution, the European Convention, and “regular” laws like the criminal penal code.

Those proposing the implementation of the UN Child Convention as law appear to have undefined and diffuse purposes. A concrete example of the troubles that this law can cause is this: A child appears in court requesting restitution because her right according to Article 29—to obtain an education that teaches her to respect her parents—was never given to her in her school. Rather, the focus of the education provides by the school was on archaic subjects such as mathematics and geography. If one takes the UN Child Convention seriously this is a very real and plausible situation.

Rather than open up the court systems to frivolous suits that these rights arguments cause and have been causing, and even poisoned the topic, we ought to continue down the path we are on: to step by step enhance the protection for children through legislative initiatives and the successful practice wherever possible. At the risk of being called postmodern—God forbid—this is a situation where the Big Solution is not going to solve the problems. The rights of children do not require nor need a steroid injection. Instead, there is a need for many smaller improvements adapted to the circumstances in each individual problem.

Special text on page 35

Under picture of silhouette of child: Icon and goodwill ambassador Audrey Hepburn celebrated the genesis of the UN Child Convention 1989.

Quote inset: If I took a telephone poll of all 14-year-olds in Sweden, I believe that very few would be able to articulate what the UN Rights Conventions mean.

Lower right corner:

FACTS. This is how the UN Child Convention works:

  • The UN Convention regarding children’s rights (UN Child Convention) was adopted by UN General Assembly in 1989. Sweden signed the convention in 1990, and almost all other countries in the world have by now signed it.
  • The UN Child Convention consists of 54 articles, of which 41 are so called expert articles, meaning including norms with material content. Four of the 41 articles are key components of the convention. These four articles are to function as a prism through which all the other articles can be interpreted.
  • Article 2 states that all children have the same rights and value and cannot be discriminated against.
  • Article 3 states that “the child’s best” should be the guiding principle for all matters concerning the child.
  • Article 6 and 12 explains that children have the right to survival and development, and to be able to express themselves and be heard.

Special text on page 36

Quote inset: The argument for making the UN Child Convention law is at times, and this is somewhat ironic, naive and infantile.

Lower left corner:

FACTS. This is how the European Convention works:

The European Convention, formally known as the European Convention for the protection of human rights and fundamental freedoms, is the European Union’s convention for human rights.

European Convention was adopted by the European Union in 1950 and was ratified by Sweden in 1952. Sweden joined the European Union in 1995, and the European convention is Swedish law. No other law or statue can be adopted that is in conflict with this convention.

The convention outlines basic freedoms and rights, like the right to life, freedom, possession of goods, legal rights, freedom to think, and protection for home and private life. For example, the convention prohibits: torture, forced labor, and discrimination.

Private individuals, groups of people or organizations that believe that one of their rights has been violated can take the case to the European Court. Read more about the European Convention on page 22–26.

Special text on page 37: Interview with Christina Heilbron from UNICEF

Q: In which way would Swedish children gain better protection than they already have if the UN Child Convention became law?

A: First of all, we feel that the content of the convention is being dismissed without consideration solely because it does not have any judicial implications. If the convention became law, it would have some teeth.

Secondly, we see areas today, specifically in the realm of asylum seekers, and in social services where there currently does not exist a child’s rights perspective like the convention requires. Thirdly, adopting the law would change attitudes, it would force politicians and lawyers to understand and enforce a child’s rights perspective.

Q: But, is not the convention a fairly poor tool for correcting situations in particular areas, like the asylum process?

A: The most important thing for us is not that the convention becomes law but that is fully adhered to. That does not currently happen. Instead, individual articles in the convention, such as Article 3, about “the child’s best,” and Article 12, that children have a right to speak their minds in matters that concerns them, are being referred to. However, if one does not take into consideration the other articles which provide more concrete implementations, one is not implementing the convention properly.

Q: What do you think about the fact that the UN Child Convention, in contrast to the European convention, is rather broad and general?

A: There was a lot of resistance to implementing the European Convention and adapting it into Swedish law initially using the same arguments. We have now come to see that is possible to follow the convention and that is a powerful tool for those whose rights have been violated.

Yet, we do know there are differences between the two conventions and understand that some of the language is harder to interpret and implement than others. It is precisely because of these reasons that it is important to continue to develop and enhance Swedish law in combination with adopting the UN Child Convention as law.

Q: So are you suggesting that a 16-year-old is able to go to court if he or she does not feel that he or she has been sufficient education in “the respect for those principles that are noted in the UN convention” during school day?

A: Internationally, there is broad-based development for individual complaints using the UN Child Convention. And we would like to see that the Child’s Ombudsman is given the authority to drive individual complaints and cases.

But how the more general articles of the convention are to be implemented must obviously be sufficiently debated in the legislature prior to passing the bill to make the UN Child Convention law.

Interview conducted by Peter Wennblad

Photo of Christina Heilborn, attorney working for the Swedish office of UNICEF. Photo taken by Melker Dahlstrand.