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Children’s Rights and a Capabilities Approach: The Question of Special Priority

Posted By Rosalind Dixon On October 6, 2012 @ 8:12 am In Cornell Law Review, Uncategorized | No Comments

A defining feature of the last century was the progressive expansion of rights to “people once ignored or excluded” by the law. A major milestone, in that process, was also the recognition of children’s rights in both international human rights (IHR) law and various national constitutions.

For much of the nineteenth century, children had few if any independent legal rights, let alone rights under international or constitutional law. This position was first challenged by leading enlightenment thinkers in the eighteenth century, and then, at an international level, in the early twentieth century, with the adoption by the League of Nations of the Declaration of the Rights of the Child.1 The movement for change gained further momentum in 1959, with the adoption by the UN General Assembly of a nonbinding declaration on children’s rights and, in 1966, with the adoption of the International Covenant on Civil and Political Rights (ICCPR)2 and International Covenant on Economic, Social and Cultural Rights (ICESCR)3. The shift, however, was arguably only fully complete following the widespread adoption in 1989 of the Convention on the Rights of the Child (CROC).4

A similar pattern has emerged in many countries at a national constitutional level. In countries such as the United States and India, recognition of the rights of (equal) access to primary education for children began as early as the 1950s. In other countries, such as Honduras, Colombia, South Africa, and Brazil, more recent constitutions have included a range of express rights protections for children, including rights of access to education, basic nutrition, shelter, health (or health care services), social services, and social security; recreation (or sport); a name and a nationality at birth; and protection from maltreatment, neglect, abuse, degradation, exploitative labor practices, or other inappropriate or dangerous forms of work.

At the same time, developing a theoretical basis for this increasing recognition of children’s rights remains a work in progress. Many existing accounts of children’s rights, for example, depend on a theory of children as “adult-like,” or quasi-adults, entitled to the same rights and entitlements as adults under a social contract approach. Both CROC and many national constitutions, however, clearly recognize even very young children as enjoying various rights. Both IHR and many constitutions also omit certain key rights belonging to adults in the social contract tradition, such as the right to vote. Although other theories focus directly on the special needs and attributes of children, they do so in a way that often fails to connect these special needs with an emphasis on children’s agency.

Part of the aim of the Article on which this editorial is based, therefore, is to provide a more fully developed theoretical account of children’s rights, by drawing on the insights of the capabilities approach (CA) developed by Martha Nussbaum in philosophy, and Amartya Sen in economics. A CA, the article argues, provides a clear account for why children’s rights should be recognized as human rights, because every human being, under this approach, is entitled to respect for her full human dignity. Like other emerging theories based on the idea of human dignity, a CA also helps explain why it makes sense for both CROC and various national constitutions to recognize a range of rights for children, with sensitivity both to children’s welfare needs and to children’s agency.

Compared to theories in the social contract tradition, a CA also does better, we suggest, in accounting for the extension of rights to young children, and the denial of various rights to older children. By emphasizing the centrality of early childhood to the realization of a range of human capabilities, for example, a CA helps affirm the status of even the very young as rights-bearers. At the same time, by emphasizing the idea of human dignity as a touchstone for IHR and constitutional law, a CA also helps ground children’s rights in a way that potentially justifies limits on children’s political rights, such as the right to vote, in some national and historical contexts. For these reasons, although theories of the social contract remain extremely valuable and give us deep insight into justice, we argue those interested in theorizing the entitlements of children should prefer the CA.

The account of children’s rights provided by a CA, in this context, has important similarities with that provided by Nussbaum in support of the rights of persons with intellectual disabilities. The argument for recognizing both sets of rights rests on a very simple idea about the moral claim of all human beings to be afforded full human dignity, regardless of their capacity for rational or reasoned participation in public or civic life. In both cases, the recognition of such rights can also imply a corresponding duty on the part of the state to provide extensive forms of affirmative protection for individuals.

At the same time, the article suggests, in certain contexts, both CROC and various national constitutions also give special priority to the so-called “welfare” or “socioeconomic” rights of children over those of other groups in society in a way that seem far less easy to justify from the perspective of a CA. A CA certainly recognizes the potential for different kinds of right to conflict and, thus, also the need to impose limits on some individual rights in order to protect the rights of others. This also explains why a CA sanctions the idea of imposing limits on parental rights and freedoms, in order to protect the future rights or capabilities of children.

Absent such direct conflict between the rights of children and adults, however, a CA is generally committed to the equal protection of rights for all, up to a certain minimum threshold. Any trade-off that leaves some people below this threshold will thus be a clear failure of basic justice under a CA, which should prompt a search for long-term strategies that will bring all citizens above the threshold. CROC and various national constitutions, however, clearly give at least some degree of special priority to the realization of certain rights for children, without in any way marking out this trade-off as “tragic.”

A second key aim of the Article, therefore, is to provide a careful examination of when, if ever, this kind of special priority to children’s rights can be justified from the perspective of a CA. The Article identifies two broad potential justifications for the grant of special priority to children’s rights in this context: first, where children are especially vulnerable as a result of their legal and economic dependence on adults, as well as their inherent physical or emotional vulnerability (a “vulnerability principle”); and second, where the marginal cost of protecting children’s rights is either so low that denying such a right would be a direct affront to their dignity, or where it is far more cost-effective to protect that right than an equivalent right for adults (a “cost-effectiveness principle”). By emphasizing the idea of spiraling capabilities needs, this second principle in particular also draws on prior work by Wolff and De-Shalit on notions of the “fertility” of particular capabilities, or “corrosive disadvantage” caused by certain capability failures.

Neither of these principles of vulnerability or cost-effectiveness can, of course, be applied without careful attention to the particular national constitutional context. In every instance, the CA directs nations to make its abstract entitlements concrete in accordance with the nation’s situation and history. Furthermore, its model of implementation draws on bill-of-rights jurisprudence in US constitutional law, in which determinations of whether rights have been violated are made in individual cases against an evolving background of (always individual) precedents. In this tradition, highly abstract rights develop texture and specificity in an implementation process that extends over time, through confrontation with a wide range of particular cases.

Each principle also has important logical limits. A vulnerability principle, for example, should be applied with careful attention to the potential common economic and physical vulnerability of children and adults and to notions of what is reasonable to expect of parents in particular societies. Considerations of cost, by contrast, should not obscure key differences between a CA and more utilitarian approaches, and thus should be applied with a close eye to notions of fertility and corrosiveness and also limited to contexts in which there are actual resource constraints. In other cases, a defining feature of the CA is that it insists that individuals, such as those with severe cognitive disabilities, can legitimately expect far less cost-sensitivity from the state when it comes to the realization of their capabilities.

Nonetheless, such principles do, we believe, provide a useful starting point in thinking about why it may be permissible for the state, in some cases, to give special priority to children, over adults, when it comes to the enjoyment of some rights. They may also, we suggest, provide a helpful starting point in thinking more broadly about when it will be permissible for a state to make trade-offs among different rights claims, or claimants, in a world of true resource scarcity. Proponents of a CA have to date approached this question by emphasizing that we ought to support capabilities that will best promote a long-term future of full capabilities, given the particular social and historical context. We flesh out this principle, however, by connecting it to notions of vulnerability, fertility, corrosiveness, and cost.

The Article, thus, ultimately straddles two important debates: one on the theoretical basis for children’s rights, and another on the justifiability of making certain trade-offs between rights, in world of resource scarcity. Both areas are ones in which there is a gap in existing theory; and the place in which they intersect strikes us as a particularly useful place in which to begin to think more carefully about each question. There is, however, an obvious cost to this approach, namely that we do not provide a full treatment of either the scope, or justifiability, of all children’s rights, or the question of trade-offs that are to be made between different rights claims by adults. These are questions that we must leave to a later day.

The Article is divided into three parts. Following the Introduction, Part I provides a brief summary of a CA and how it justifies the recognition of children’s rights as a distinct species of human rights and better explains the scope of such rights than do rival social contract approaches. Part II considers potential justifications for giving special priority to

children’s rights, first by considering and rejecting ideas about children’s innocence and the absolute priority of equal opportunity principles and then by developing two affirmative justifications for giving special priority to children’s rights based on considerations of vulnerability and cost-effectiveness. Part III considers the range of potential extensions, and limitations, on the logic of each of these two latter principles. The Article then briefly concludes.

Acknowledgments:

Rosalind Dixon is an Assistant Professor of Law, University of Chicago Law School; Senior Visiting Fellow, University of New South Wales Faculty of Law.

Martha C. Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics, University of Chicago, Law School, Philosophy Department, and Divinity School.

This article is based on Rosalind Dixon & Martha C. Nussbaum, Children’s Rights and A Capabilities Approach: The Question of Special Priority, 97 CORNELL L. REV. 549 (2012).

  1. Declaration of Geneva, League of Nations Doc A.107 1924 IV (1924).
  2. International Covenant on Civil and Political Rights, Dec. 19, 1966, S. TREATY. DOC. No. 95-20 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR].
  3. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. TREATY DOC. No. 95-19 (1978), 993 U.N.T.S. 3 [hereinafter ICESCR].
  4. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

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