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| Photo of Bodnarius family by Lifenesitenews.com |
But the primary way in which IHRL seeks to protect children
is actually undermining the very objective which it purports to uphold. IHRL
seeks to protect children through a rights-based framework. This is
accomplished through the Convention on the Rights of the Child (CRC), a
U.N.-sponsored treaty that effectively serves as a “children’s bill of rights.”
And who doesn’t love “rights”? They sound great, and what harm could come from
giving a group of people more rights?
Quite a bit, actually. Lynne Marie Kohm, Dean and Professor of
Regent Law, persuasively argues in her article, Suffer
the Children: How the United Nations Convention on the Rights of the Child Has
Not Supported Children, 22 N.Y. Int’l. L. Rev.
57 (Summer 2009), that the entire idea of a “rights-based
framework” for children has been devastating. Rather than protecting children
by imposing duties on adults and using the traditional “best interests”
standard, a rights-based framework treats children as capacitated individuals,
effectively imposing on children the impossible duty to be their own advocate.
A rights-based framework also separates children from their caregivers,
especially when corresponding duties are not imposed on them. As Dean Kohm
states, “Children are protected only when adults have a duty to provide that
protection, rather than cloaking children with the right to do so themselves.”
A recent example of the destructive effects of a
rights-based framework is seen in the recent controversy surrounding the
Bodnarius, the Norwegian family whose five children were taken by the state
child welfare agency, the Barnevernet, because of “Christian indoctrination.”
Apparently the Barnevernet first seized the older two children from school
without the parents’ knowledge or consent. The agency then went to the
Bodnarius’ home, took their two boys, and arrested the wife, who was taken to
the police station for interrogation along with her baby. Officials also
arrested the husband at his work and took him to the police station. After
several hours, the Bodnarius were allowed to leave with their baby, but not
with their other children. The next day, the Barnevernet returned to the
Bodnarius’ home and seized the baby as well.
If this sounds more like the Soviet Union than a western
democracy to you, you’re not alone. How could such draconian measures be taken
in the 21st century, especially with an international treaty
dedicated to protecting children? Unfortunately, this situation is a natural
outflow of the CRC’s rights-based framework. Under the CRC, articles 13 and 14,
children are granted the right to free expression and freedom of thought,
conscience, and religion. And while the CRC references the “rights and duties”
of parents, it does so only in connection with “provid[ing] direction to the
child in the exercise of his or her own rights . . . .” Thus, the CRC
effectively pits parents against their own children, requiring parents to
facilitate their children’s “rights” while ignoring their own convictions and
obligations.
Instead of strengthening the bond between parent and child,
a rights-based framework separates them. And while the “separation” may often
just be metaphysical, in the case of the Bodnarius, it was physical—and
potentially permanent. Despite its popularity, it is high time to revisit the
CRC and the use of a rights-based framework to protect children.
--S. Ernie Walton is the Administrative Director of Regent Law's Center for Global Justice, Human Rights, and the Rule of Law and professor of International Law and National Security Law.
--S. Ernie Walton is the Administrative Director of Regent Law's Center for Global Justice, Human Rights, and the Rule of Law and professor of International Law and National Security Law.
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