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Do Children Have Rights? Do Children Have Rights? Five theoretical reflections on children's rights Mhairi Catherine Cowden A thesis submitted for the degree of Doctor of Philosophy of the Australian National University June 2012 Declaration This work is the result of original research carried out by the author. Where joint research was undertaken during the candidature and used in this thesis, it has been acknowledged as such in the body of the text. The applicable research is listed below, alongside the contribution from the author. Chapter Three: the paper 'Capacity' and 'Competence' in the Language of Children's Rights is co-authored with Joanne C Lau (Australian National University). The paper constitutes equal contribution between authors in conceiving the core argument and writing the text. Mhairi Catherine Cowden 29th June 2012 Acknowledgments The idea for this thesis first arose after I was asked several years ago to write a brief article for the UNICEF newsletter entitled, 'What are rights and why children have them'. After doing some preliminary reading I found that surprisingly there was a lack of consensus on either question. It struck me that without such foundational theory that rhetoric to secure and expand children's rights seemed fairly empty. A country built on shaky foundations. Bringing this project to fruition, however, was a lot harder than identifying the problem. I could not have done it without the help of many people. First thanks must go to my principal supervisor, Keith Dowding. Without his help and guidance I would never have read Hohfeld nor got past the first paper of this thesis. Sincere thanks also to the other members of my supervisory panel, Tom Campbell and Christian Barry. I am also indebted to Joanne C. Lau for many useful discussions and collaborations. Thank you to the School of Politics and International Relations at the Australian National University for providing the institutional support for my work. Special thanks to my fellow PhD students for coffee, cupcakes and Friday drinks. Outside ANU sincere thanks to David Archard for welcoming me to Lancaster University. Thanks also to Peter Morriss who after only meeting me briefly (mostly on a drive to the airport!) continued to offer detailed advice on my many papers and drafts. Thank you to the numerous anonymous reviewers and editors who have read my papers and offered helpful feedback. Thank you to Contemporary Political Theory, Critical Review of International Social and Political Philosophy and the International Journal of Law, Policy and the Family for allowing me to reproduce the published work here. Thank you to my parents for providing me with the education and support to be able to accomplish this task, for treating me like a person and not a 'child' and for arguing with me over the dinner table. However, most of all, thank you to Nicholas Duff for his tireless support, excellent proof reading and his constantly intelligent mind that pushed my ideas further, questioned the weaknesses in my argument and made this thesis a better piece of work. ii Abstract The existence of children's rights in law does not resolve the question as to whether children have rights in reality. In 1973 Hillary Rodham Clinton claimed that children's rights were a 'slogan in search of a definition'. Since then many advances have been made in children's rights: the United Nations Convention on the Rights of the Child was adopted in 1989 and many countries have introduced national legislation protecting the rights of children. Despite these advances the rights of children remain under theorised and poorly implemented. The fundamental question 'do children have rights?' remains contested. This thesis defends and applies a theoretical argument for children's rights over five papers. It does so in two parts. The first part builds a theory for children's rights across three papers: paper one Capacity, claims and children's rights, paper two, 'Capacity' and 'Competence' in the Language of Children's Rights and paper three, Children's Rights and the Future Interest Problem. Children have rights because they have interests that are of sufficient importance to be protected and these interests ground claims that produce duties in others to act or refrain from acting. Rights are therefore understood as Hohfeldian claims with correlative duties. This thesis sets out the relationship between a child's capacity, competence and their rights. It is not conceptually necessary for a child to hold the power to enforce or waive their claim in order to hold a right. However a child must be competent in realising the interest to which a particular claim pertains. Furthermore the duty correlated with a child's claim must be reasonable and achievable and the duty-holder must hold the capacity to fulfil the correlative duty. Children are in a special category of right holders as their capacities are rapidly evolving. As a consequence they hold claims to the development of core capacities that produce duties in others to assist in their development. The second part of the thesis applies this theory of children's rights to two cases across two papers: paper four, What's Love Got to do with it? Why children do not have a right to be loved and paper five, No harm, No Foul: donor conceived children and the right to know their genetic parents. The case of a child's right to be loved demonstrates what children's rights are not. Children do not have a right to be loved because love as a duty iii cannot be reasonably fulfilled or enforced. The case of a right to know one's genetic parents illustrates what children's right are. Children have a right to identifying information as they have an interest in being free from psycho-social harm. They have a corresponding right to be told that they are donor conceived. These two cases demonstrate the importance in locating the interest grounding the claim in order to determine the shape of the corresponding duty. This is essential for addressing real policy problems. Understanding why children have rights therefore presents effective pathways for moving children's rights from 'a slogan' into reality. iv Table of Contents Declaration............................................................................................................... i Acknowledgements...................................................................................................ii Abstract..................................................................................................................... iii Chapter One: Introduction 1.1 Introduction.....................................................................................................3 1.2 Thesis Aim ....................................................................................................... 8 1.3 Thesis Structure............................................................................................... 9 1.4 Summary of Papers........................................................................................11 1.4.1 Paper One......................................................................................11 1.4.2 Paper Tw o......................................................................................13 1.4.3 Paper Three................................................................................... 14 1.4.4 Paper Four..................................................................................... 15 1.4.5 Paper Five......................................................................................17 1.4.6 Concluding Chapter....................................................................... 19 1.5. Conceptual Clarifications............................................................................. 20 1.5.1 What are Children?....................................................................... 20 1.5.2 What are Rights?...........................................................................29 1.6. Children's Rights So Far................................................................................41 1.7. Conclusion.....................................................................................................53 1.8 References.....................................................................................................56 Part One: Theoretical Basis Chapter Two: Capacity, claims and children's rights 2.1 Abstract......................................................................................................... 66 2.2 Concepts and Definitions.............................................................................. 67 2.3 Theories and Functions of Rights.................................................................. 71 2.4 Realising Rights and Imposing Duties............................................................ 75 2.5 Conclusion 81 2.6 References................................................................................................. 82 Chapter Three: 'Capacity' and 'Competence' in the Language of Children's Rights 3.1 Abstract........................................................................................................86 3.2 Part One....................................................................................................... 87 3.3 Part Two.......................................................................................................91 3.3.1 The case of capacity and competence...........................................91 3.3.2 A conditional analysis of competence...........................................93
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