The Child’s Right to Participation – Reality or Rhetoric? The Child’s Right to Participation – Reality or Rhetoric? Rebecca Stern Dissertation presented at Uppsala University to be publicly examined in Grotiussalen, Uppsala, Friday, September 22, 2006 at 10:15 for the degree of Doctor of Laws. The examination will be conducted in English. Abstract Stern, R. 2006. The Child's Right to Participation – Reality or Rhetoric? 301 pp. Uppsala. ISBN 91-506-1891-1. This dissertation examines the child’s right to participation in theory and practice within the context of the United Nations Convention on the Rights of the Child and other international human rights instruments. Article 12 of the Convention establishes the right of the child to express views and to have those views respected and properly taken into consideration. The emphasis of the study is on the democracy aspects of child participation and on how the implementation of the right to participation could become more effective. For these purposes, the theoretical underpinnings of the child’s right to participation are examined with a particular focus on the impact of power structures. In order to clarify how state parties to the Convention have implemented article 12 and the way they argue regarding possible obstacles for implementation, jurisprudence and case law (practice) of the Committee on the Rights of the Child, as well as supervisory bodies of other international human rights instruments, are studied. In particular, the importance of traditional attitudes towards children on the realisation of participation rights for children is analysed. The case of India is presented as an example of how a state party to the Convention can argue on this matter. The conclusion drawn from the analysis is that the problem lies not in certain societies/cultures (often labelled traditional) being less inclined to allow and facilitate matters for children to participate in decision-making than in other more “modern” societies. Instead, the same view of the child prevails, regardless of the society in question. The challenge thus lies in changing adult attitudes towards children and child participation. In the final chapter, suggestions are presented in relation to how state parties can be encouraged to find the political will essential for effective treaty implementation and for bridging the gap between theory and practice. Rebecca Stern, Department of Law, Box 512, Uppsala University, SE-75120 Uppsala, Sweden © Rebecca Stern 2006 ISBN 91-506-1891-1 urn:nbn:se:uu:diva-7083 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-7083) Printed in Sweden by Universitetstryckeriet, Uppsala 2006 Acknowledgements When I first began working on this dissertation, someone told me that writing a doctoral thesis was comparable to swimming across an ocean. Now, as I actually see the lights of the harbour that I have been struggling to reach glimmering in the dark, I would like to thank those who were with me on this voyage – in the 'accompanying boat'. To them, I am eternally grateful. First, my supervisors, Maja Kirilova Eriksson and Anna Singer. Without them, I surely would have gone under! I wish to express my sincere gratitude to Maja for her encouragement, support, comments and for allowing me my independence; and to Anna for her support, sound advice and for reminding me of the necessity to 'kill one’s dar- lings'. This dissertation has been written within the research programme Children as Active Agents, involving members from different universi- ties and disciplines. Through the years I have had the opportunity of presenting texts at the seminars of the research group which has been of great value for my work. I particularly wish to thank Anna Hol- lander, Eva Nilsson and Marianne Dahlén for important comments and for stimulating discussions. To Marianne, my 'partner in crime' in the research project – thank you for being not only an encouraging col- league but also a good friend. Furthermore, I would like to thank the participants at the Higher Seminar at the Faculty of Law at Uppsala University as well as Karin Norman and Ludvig Beckman of Stockholm University for their in- valuable comments, and, also, the NGO activists and academics I had the opportunity of meeting and interviewing during my research in India. My heartfelt gratitude is extended to the librarians of the Law Li- brary and the Dag Hammarskjöld Library in Uppsala, and to Brian Moore for his impressive work with the language of this text as well as for his encouraging comments. It has been a learning experience as well as a pleasure to work with him. Sole responsibility for the views expressed in this work, as well as for any mistakes, is mine alone. As is well known, 'all work and no play makes Jack a dull boy'. I have been fortunate in being surrounded by colleagues at the Faculty of Law and the Old Square with whom I have shared interesting dis- cussions and lots of laughs. Thank you, Mona Aldestam, Margareta Brattström, Anna Jonsson, Anna-Sara Lind, Peter Strömgren and Jen- ny Söderlund! To Anna-Sara Lind and Ewa Axelsson, an additional thank you for proof-reading the final version. This dissertation was financed by the Bank of Sweden Tercentary Foundation as part of the research program Children as Active Agents. The Foundation also generously sponsored research trips to India and to the United Nations Library in Geneva. In addition, Institutet för Rättsvetenskaplig Forskning kindly granted me a scholarship for the last months of writing. The Faculty of Law has generously financed the printing. Last, but most certainly not least, I would like to thank my family and friends who continually shouted encouragement from the 'accom- panying boat'. To my parents, Birgitta and Jan Stern, for their support and encouragement; to Anna Krüger, Camilla Wiwe, Sara Rönnkvist, Katarina Mannerbrink, Marie Ulväng, Patrik Nilsson, and many more, for being such wonderful friends. To Johan Thorburn, for his support and for reminding me during the last months of writing that there is more to life than work. This is a dissertation on the child’s right to participation. In the course of its writing, parents in my vicinity have pointed out to me the fact that child participation is something easier said than done. Accord- ingly, I dedicate this work to my godchildren, Junia Rees and Viggo Espinoza, and to Elisabeth Tengroth – all of whom have made me realise that dealing with reality is always far more complex than the- ory. Rebecca Stern Stockholm, August 2006 Contents 1 Framework of the Inquiry 13 1.1 Introduction 13 1.2 Subject Matter 15 1.2.1 Aims and Objectives 15 1.2.2 Delimitations 16 1.3 Method and Material – Approaches 18 1.3.1 Perspectives Applied In the Study 18 1.3.2 The View Through Whose Spectacles? 23 1.3.3 Sources 24 1.4 Previous Research 25 1.5 Outline of the Study 26 2 Framework of the Protection of Children’s Rights to Participation 28 2.1 Introduction 28 2.2 The Development of International Child Rights Instruments 30 2.2.1 Seeing Children as Rights-Holders 30 2.2.2 Drafting process of the Convention on the Rights of the Child 33 2.3 The Convention: A Leap Forward 36 2.3.1 An Innovative Treaty 36 2.3.2 Main Perspectives of the Convention 38 2.3.3 Principles of Interpretation 41 2.4 Implementing the Convention 42 2.4.1 Status of the Convention in Domestic Law 42 2.4.2 Measures of Implementation: Article 4 45 2.5 Monitoring the Implementation of the Convention 52 2.6 Children’s Participation Rights in Universal and Regional Human Rights Instruments 56 2.6.1 “All Human Beings” – But Not Quite 56 2.6.2 The Universal Declaration of Human Rights 56 2.6.3 The International Covenant on Civil and Political Rights 58 2.6.4 The United Nations Convention on the Elimination of All Forms of Discrimination Against Women 63 2.6.5 The European System 66 2.6.5.1 The European Convention on Human Rights 66 2.6.5.2 The European Convention on the Exercise of Children’s Rights 69 2.6.5.3 The Charter of Fundamental Rights of the European Union 71 2.6.6 The Inter-American System 72 2.6.7 The African System 77 3 Children’s Participation: An Issue of Democracy 81 3.1 Children as Rights Holders 81 3.2 Different Perspectives of the Concept of the Child 87 3.2.1 The Child as Defined in the Convention on the Rights of the Child 87 3.2.2 “Childhood” in Sociological Research 89 3.2.2.1 A Dominant Paradigm – the Competent Child 89 3.2.2.2 A New Direction? 95 3.3 Interdependency: Democracy and Human Rights 97 3.3.1 The Growing Recognition of the Relationship Between the Concepts of Human Rights and Democracy 97 3.3.2 The Norm of Democratic Governance in International Law 102 3.4 Children and Democracy – A Complex Combination 105 3.4.1 A Conditional Right 105 3.4.2 Democracy – A Crash Course 106 3.4.3 Demos and Citizenship 108 3.4.4 The Citizen Child 112 3.5 Democracy and Children: A Working Relationship? 113 3.5.1 “Democracy” in the Contemporary Child Rights Discourse 113 3.5.2 “Democracy” in State Reports and Comments 115 3.5.3 Children and the Exercise of Democratic Influence 117 3.5.3.1 Children and Political Rights 117 3.5.3.2 How Children Can Exercise Political Influence 120 3.6 Child Participation: An Independent Democratic Value in Society 125 4 Participation Equals Power 129 4.1 Introduction 129 4.2.