Updated: Nov 14
Children/youth climate advocates ‘doing’ rights themselves: Post-paternalism for the UN Convention on the Rights of the Child?
Aoife Daly, Lecturer, School of Law, University College Cork, Ireland
Child/youth climate advocacy reveals the paternalism of much of our approach to the CRC. We are experiencing ‘post-paternalism’, I suggest here, involving grassroots action from children (for the first time, on a global scale), rather than well-meaning adults ‘giving’ children their rights. Future approaches to the CRC must reflect this.
The climate crisis poses an existential challenge to humanity. Children/youth are affected disproportionately by the climate crisis for a number of reasons, including the fact that they may suffer irreparable physical and mental harm in ways that adults will not. It is little wonder that children and youth have expressed their frustration with the failure of adults to adequately curb carbon emissions. As 12 year old Colombian and experienced environmental activist Francisco Manzanares said this year: ‘I believe that this model of an adult-centric society that basically does not take children into account must change. What needs to change is how we recognise and listen to the voice of children’ (CERI, 2022).
In the face of the unprecedented global threat of climate crisis, there has been a wave of child/youth climate action which has been transformative for how many perceive children, including protests, lobbying and strategic litigation. This disruption, I argue, means that the arena of the international law on children’s rights is inevitably challenged and changed. Adults’ approach to the UN Convention on the Rights of the Child (CRC) framework is frequently paternalistic, and this is brought into focus. The response in this post-paternalist era requires efforts, including by rights commentators, to consider how to approach and interpret that instrument anew.
The CRC and paternalism
The CRC is in many ways a ground breaking document for children’s rights – the right of children to be heard (and due weight to be accorded to those views) for example, is enshrined in Article 12. Yet that instrument can be used in a very paternalistic way. Paternalism can be defined as restricting the freedoms or responsibilities of subordinates whilst claiming that it is in their best interests to do so (Oxford English Dictionary, 2016). The paternalistic approach to children is perhaps to be seen in the fact that the principle of the best interests of the child – a crucial principle to call attention to children’s distinct needs, but also one which can be used to side line children’s wishes – is the most incorporated right in the CRC at national level (Lundy et al., 2017).
The emphasis on the principle is arguably not matched by attention to other rights which would mitigate paternalism. Rights which could be theorised and litigated such as the right to freedom of assembly are neglected, arguably because the right to be heard has been the focus in terms of children’s civil and political rights (Daly, 2016; Quennerstedt, 2010). The right of children to be heard in all matters affecting them, and the right to have due weight given to those views, was a transformative right introduced by the CRC. It is being implemented more than ever, particularly due to the impact of the Lundy Model which insists that children have space, voice, audience and influence (Lundy, 2007). This state of the art approach means that children’s voices are more frequently heard in policy and other arenas. Yet problems remain in relation to implementing that right, including the fact that adults and organisations remain its gatekeepers: ‘ultimately weighing and judging the abilities of children and young people to participate based on their age, maturity or perceived best interests’ (Templeton, Cuevas-Parra and Lundy, 2022).
This gatekeeping seems very far from the grassroots action of child/youth climate advocates who have themselves taken the reigns across public spaces, the media, and now the courts. Children/youth have come together, in their locales, but also as a collective, all over the world; demanding change from politicians, business leaders, and all adults. Children have frequently been key to movements for change, including in Apartheid South Africa and in child/youth movements for labour rights (Wall 2020; Daly, 2016; Liebel, 2012). Yet the 2018 explosion of child/youth activism brought this to a global scale (Neas et al., 2022). It has also involved children taking litigation at national, regional and international level at an unprecedented rate (Donger, 2022; Daly, 2022).
Tisdall and Cuevas-Parra say of child activism generally: it ‘is not reliant on adults: child activists take the space and demand the attention, rather than relying on adults to do so’ (2021:11). It has demonstrated the power of children/youth themselves deciding what is best. Children and youth have always been political, but their global climate action has made this somewhat mainstream. They are, unprompted by adults, doing ‘rights work’ by what Pantazidou (2013, in the broader human rights context) describes as creating meaning and shaping the narrative around what is considered a ‘just claim’.
An era of ‘post-paternalism’ for the CRC?
It seems that we are in an era of ‘post-paternalism’. Across numerous countries, children/youth climate activists are no longer waiting for adults to uphold their best interests, or relying on adults to facilitate their right to be heard. Thunberg said to world leaders in 2019- ‘We will not let you get away with this … change is coming, whether you like it or not.” In fact some children/youth are angry and frustrated with rights processes – including with the UN committee on the rights of the child, which declined to fully consider a climate petition (Saachi) by applicant children (as they had not gone through national courts first). Raina Ivanova, one of the 16 youth who had brought the case said: “I feel extremely left alone by the Committee on the Rights of the Child [the] UN body who is supposed to help uphold our rights.” There are other, more complicated disruptions – a distinct lack of engagement with the CRC is evident in child/youth climate cases (Donger, 2022), likely because of the legal difficulty of arguing for children’s rights when some litigants are over 18 years, or turn 18 during proceedings.
This exciting – albeit challenging – time for the international children’s rights law framework requires that we respond to a post-paternalist world. Children’s rights authors have long pointed to the need to combat paternalism in children’s rights. Hanson and Nieuwenhuys (2013) are proponents of ‘living rights, or the lived experiences in which rights take shape’. Vandenhole (2012) notes the top-down approach to international rights law, and argues for prioritising children’s local needs and issues as the starting point for rights interpretation. Liebel (2020) encourages decolonising children’s rights, and overcoming paternalism through the pursuit of fundamental changes in the power structure of society, and adult-child relationships. These and other approaches to children/youth as equals must be examined by those of us who work closely with the CRC. We must also challenge further under-theorised areas such as what it means for the CRC that it does not include a right for children to vote (Wall 2020); and why the principle of non-discrimination is so under-utilised for adult-child discrimination (Daly et al., 2022). We must better theorise the legal difficulties of the adult-child divide for the CRC, for example where litigants include a mix of under and over 18 children/youth.
Moreover, we must ensure that as complex as these questions are, children and young people take the lead in answering them. Academics, including the academic author here, have to work harder to bring complex human rights concepts to children/youth in a way that reflects the realities of their lives. We must ask them what we can do to be allies as they create their own meanings and interpretations of their rights (Merry, 2006). In this way we ensure that the international children’s rights law framework stays as attuned as possible to children’s needs and experiences as we work intergenerationally, and learn from each other, to combat the greatest threat to humanity yet.
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