Discrimination and Children’s Right to Freedom of Association and Assembly

Discrimination and Children’s Right to Freedom of Association and Assembly

Nico Brando[*]

Laura Lundy[+]

“I started striking from school every Friday. I did this because I was under 18 and being under 18 meant I had no vote, no say in the decision-making process of my Government.”[1] (Anna Warren, 2019).

1. Introduction

Children[2] are treated differently from adults in almost every aspect of their lives. This is sometimes necessary (e.g., for their survival) or desirable (e.g., for their development). However, so widespread is the practice of treating them differently based on their age that it appears to be implemented without the need to justify the differential treatment. Of particular concern, in this respect, is the differential treatment encountered by children in the realm of political participation. Not only are they the sole social group systematically excluded from formally exercising core political entitlements (e.g., the right to vote, or to run for office), but, moreover, their participation as political actors in informal spheres, their freedoms, and the spaces available for them to associate and express their political claims are also highly restricted. Here, we focus on the potential discrimination of children when attempting to exercise their right to freedom of association and peaceful assembly (FAPA). We wish to draw attention to the potential injustice of children facing unjustified differential treatment in the exercise of one of the very rights needed for them to argue against discrimination in the first place.

This issue is timely since many children and young people across the world wish to form or join groups to campaign for social change and to protest on issues that are important to them, including discrimination itself (e.g., climate change, BLM, gun law reform, and gender equality). Children have the right to FAPA in Article 15 of the United Nations Convention on the Rights of Children, G.A. Res. 44/25, Art. 15 §1 (Nov. 20, 1989). a provision which replicates the right of both adults and children in the Article 11 of the International Covenant on Civil and Political Rights (ICCPR). 999 UN.T.S. 171. However, in many contexts, children are prohibited or restricted from exercising this fundamental human right by the state (e.g., through laws which prohibit ‘minors’ from forming associations), schools (who punish children who attend protests), or parents/guardians (who stop children from taking part in associations or protests). Can the restriction of children’s right to FAPA be justified based on their age? Can their right to an education or to be protected from harm trump their right to FAPA?

 

2. Discrimination and Differential Treatment of Children

To assess whether restrictions of children’s rights to FAPA can be justified or not, we must clarify what we mean by ‘discrimination.’ In this respect, it is useful to distinguish discrimination from justified differential treatment. We understand ‘discrimination,’ simply, as a form of differential treatment that is unjustifiable. Justified differential treatment entails all forms of law, policy, and social practice that, for legitimate and necessary reasons, treat a section of the population in a way that is different from others. This is often the case with children. For example, it is considered that children are especially vulnerable to certain forms of harm and exploitation if allowed to engage in work; thus, their rights and best interests are better protected by restricting their right to engage in most forms of economic activity.

Age-based differential treatment is not necessarily wrong; what we are concerned about, and claim, is that, particularly in the case of age-based differential treatment of children, there tends to be a lack of accountability for the reasons given to restrict rights and a generalized lack of justification as to why certain forms of differential treatment are required and directed specifically towards children. It is often taken as a given both in law, and in social life, that children can have many of their political and civil freedoms justifiably restricted due to their assumed vulnerability (they should be protected from harm that can be caused by these freedoms) or because of their assumed incapacity (they should be protected from harm that they may cause themselves).

However, this belies the fact that civil and political rights can only be restricted in a number of specific ways. Children can be justifiably treated differently from others based on their age, as long as the differentiation is proven to have a legitimate aim, to be a necessary solution to achieve that aim, and to be proportional (i.e., there aren’t less restrictive alternatives that would achieve the same result). Leaving aside inherent limitations within the text of legal provisions, justified differential treatment that is necessary and proportional can occur when there is a conflict between the boundaries of the rights of different individuals. However, when children are denied their civil and political rights (e.g., FAPA), it is usually not because this interferes with the rights of others but because it is seen to be harmful to the child or children themselves. Sometimes this is presented in the language of children’s rights – it is not in their ‘best interests’ or it will interfere with their right to be protected from harm. This is an argument seldom used to justify the restriction of rights to adult citizens, and determining whether this can be justified for children is necessary to understand if it amounts to discrimination.

 

3. Political Participation and the Right to Association and Assembly

Children are systematically excluded from exercising certain (basic) forms of political participation. Most States limit the right to vote to adults, and none (as far as we are aware) allow individuals under the age of 18 to run for office at any level of government. These are already two restrictions which raise important questions about children’s potential discrimination in the exercise of their political rights and their recognition as political actors. It has been claimed[3] that this is not only a source of direct discrimination (by explicitly excluding them from exercising certain rights due to their age) but also of indirect discrimination, as their exclusion from formal spheres of authority (as voters or as members of parties or government) affects the attention that is given by government to their claims and interests (e.g., the examples of climate change action or gun law legislation are very clear in this respect).

Article 25 of the ICCPR gives every citizen “the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.” 999 UN.T.S. 171. This was not transcribed into the UNCRC, as the restrictions on the right were presumably considered not ‘unreasonable’ in the case of children. That omission in itself calls out for justification, yet no such justification was proffered.

However, children are included amongst the individuals endowed with other basic civil and political rights, G.A. Res. 44/25, Art. 12-17 (Nov. 20, 1989), FAPA among them.[4]  This is important precisely because of children’s systematic exclusion from the formal spheres of influence and political participation. Children have a special stake in having these rights respected, protected, and fulfilled as they do not have other avenues that are open to adults through which to be heard and recognized as political actors. Children, however, suffer from restrictions on their FAPA that go beyond those included in the wording of Article 15 (i.e., “those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”  G.A. Res. 44/25, Art. 15 (Nov. 20, 1989)).

In law, the right to FAPA in the UNCRC (Art.15) is in all key respects the same as that afforded to adults and does not include any additional inherent restrictions on the scope of the right. A key difference, in the case of children, is that “Article 15 needs to be read in the context of children’s other human rights in the UNCRC and, in particular, Article 5 (parents’ right to advise and guide in line with children’s evolving capacities), Article 3(1) (best interests as a primary consideration), and Article 19 (protection from all forms of harm).”[5] Even so, any restrictions that are imposed, even in what is perceived as in children’s own interests or for the enjoyment of their other rights, must be legitimate, necessary, and proportionate.

 

5. The Reality of Children’s Right to Association and Peaceful Assembly

In practice, many countries, legislation, and other regulations have introduced barriers to children’s enjoyment of Article 15. Minimum age restrictions are among the most significant barriers since practically all laws and regulations around the world ask for a legal personality to form associations, and the age for legal personality usually coincides with the age for legal capacity/maturity which is often 18. Many, moreover, establish minimum age requirements to join certain forms of associations freely.

Age-based restrictions can limit children’s right to FAPA in various ways. Lebanon for example, limits association membership to individuals over the age of twenty.[6] Japan does not allow minors to join associations without parental consent.[7] In Costa Rica, children are allowed to join associations, as long as they don’t have a political or lucrative intent.[8] This is challenged rarely. An exception is a case from the Supreme Court of Estonia in which it was decided that a restriction on the right to form and lead associations to persons over eighteen was discriminatory and violated Art. 15 of the UNCRC.[9]

There is, moreover, a trend to make use of the limits to FAPA in Art.15(2) to justify the restriction of children’s peaceful assembly. While, in theory, age is not a justification for limiting Article 15, many states have appealed to public order, safety, and morals to restrict children’s association and assembly. Curfew laws in the UK, loitering laws, and other decrees aimed at targeting ‘antisocial behavior,’ threaten children’s access to peaceful protest and manifestations. In the ongoing protests led by girls and women in Iran, it was reported that the average age of those arrested during the protest is fifteen years-old. The Deputy Commander-in-Chief of the Islamic Military claimed that the arrest of children was justified as they were affecting public order by inciting violence. It has been claimed that security forces are going into schools to arrest children who protest.[10]^,[11] While in certain instances, particular adult collectives are targeted and harassed by public forces when protesting, the existence of specific laws that limit children’s (but not adults’) use of public spaces is questionable.

Beyond public order, there also appears to be a default and indeed tacit assumption that it is appropriate to limit children’s enjoyment of their FAPA for their own best interests. Police and government officials in New Zealand, for example, have regularly appealed to threats to children’s safety in order to limit their access to public protests.[12] The ‘best interests’ principle (Art. 3(1), UNCRC) is appealed to regularly as justifying trumping children’s civil and political freedoms to protect them from harm. Moreover, even when law allows children’s participation in peaceful protest, children can suffer from restrictions imposed by both parents and schools. In the USA, many school districts threatened repercussions for children who intended to join the gun law reform protests, after the Parkland shooting.[13] The UK Department of Education, moreover, highly encouraged schools and parents not to allow children to manifest in Fridays for the Future protests, as this would greatly affect children’s education.[14] All this begs the question of whether parents, guardians, or public institutions should have the authority to decide whether, when, and how children should be allowed to exercise their right to FAPA. While Article 5 of the UNCRC allows parents or guardians to provide “appropriate direction and guidance” in children’s exercise of their rights, it seems difficult to claim that this would entitle them to unilaterally restrict their children’s FAPA.

 

6. Discussion

Children and adults have the same right to freedom of association and peaceful assembly. However, children, unlike adults, are often denied the opportunity to exercise this right, with their protection/education/‘best interests’ employed to justify restrictions on the exercise of the right that would not be applied to adults.  We suggest that the application of such restrictions can constitute unjustified and unjustifiable differential treatment and therefore amount to discrimination.

We note that addressing the issue of whether there are varying ‘levels’ in the standards used to justify differential treatment is problematic when the objects of discrimination are children.  In particular, we do not consider that it is higher or lower standards that affect the issue of discrimination. Rather a different set of standards are used because there is an extra set of bespoke children’s rights at play. Even so, while the elements to be assessed are different, the process should be the same: if you are restricting a right, you have to make sure that the restriction is necessary and proportionate. In practice, that means that all other possible avenues that could achieve the same result are not accessible. So, for example, when we look at concerns about children’s safety when taking part in protests, a default response is often to prohibit children from taking part. These decisions are often made without any apparent consideration that this is a human right and that any interference with it should be necessary and proportionate (as would be the case with adults). A rights-based response would be to see what could be done to make sure that children are safe when they do so. For example, when children are taking part, the police response should refrain from the use of methods of dispersal or containment that might endanger or have a disproportionately adverse impact on children (e.g., high frequency ultrasound devices, plastic bullets, teargas, tasers, etc.).[15]

To conclude, we have chosen to focus on this form of unjustified differential treatment of children as it provides a timely and real-life example not just of the ways in which we treat children in which we would not treat adults, but the way in which we interfere with their human rights without recourse to conventional processes and standards that are needed to justify such restrictions.  It also raises some wider issues in the context of age discrimination.  For example, one could argue that the fundamentality of a certain entitlement or claim could tweak the standard used to evaluate discrimination: it is not necessarily the field of activity but the importance on the restriction which may be incurred. In basic civil and political rights, we suggest that standard should be definitely high especially given that enjoyment of these rights is foundational to challenging discrimination against any group, including children.

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[*] Nico Brando is the Deputy-Director of the European Children’s Rights Unit, and Derby Fellow at the School of Law and Social Justice, University of Liverpool.

[+] Laura Lundy is a Professor of Children’s Rights and Co-Director of the Centre for Children’s Rights in Queen’s University Belfast, Professor of Law, University College Cork and Joint Editor in Chief of the International Journal of Children’s Rights

[1] Amnesty International UK: Children’s Right to Protest, (last visited Nov. 1, 2022), https://www.amnesty.org.uk/childrens-right-protest [https://perma.cc/FP6F-B6QV].

[2] We follow the UN Convention on the Rights of the Child (UNCRC) Art.1 which defines a child as every person under the age of 18.

[3] Nico Brando, Is child disenfranchisement justified? Critical Review of Social and Political Philosophy (2022, Online first). DOI: 10.1080/13698230.2022.2062211; John Wall, Give Children the Vote. Bloomsbury (London, 2022).

[4] Article 15 (UNCRC) states that “1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law, and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

[5] Laura Lundy. The Rights of Child Human Rights Defenders. Implementation Guide. Child Rights Connect (Geneva, 2020), p. 67.

[6] Lebanon: Finalisation Of New Draft Legislation On Child Protection And Freedom Of Association, Child Rights International Network (Feb. 17, 2011), https://archive.crin.org/en/library/news-archive/lebanon-finalisation-new-draft-legislation-child-protection-and-freedom.html#2 [https://perma.cc/6K4D-6TAE].

[7] Concluding observations of the Committee on the Rights of the Child : Japan. Child Rights International Network (Feb. 26, 2004), https://archive.crin.org/en/docs/Japan%20COs.html [https://perma.cc/JXA2-TJYM].

[8] Consideration of reports submitted by States parties under article 44 of the Convention : Convention on the Rights of the Child : concluding observations : Costa Rica, United Nations Digital Library (Sept. 21, 2005),  https://digitallibrary.un.org/record/570468?ln=en [https://perma.cc/Y42G-AE36].

[9] Riigikohus [Supreme Court of Estonia]. Constitutional Judgement 3-4-1-1-96. (May 10, 1996). At: https://www.riigikohus.ee/en/constitutional-judgment-3-4-1-1-96

[10] Fararu News, Sardar Fadavi: “The average age of many of those arrested is 15 years old”. FARARU NEWS (October 5, 2022). At: https://fararu.com/fa/news/578665/%D8%B3%D8%B1%D8%AF%D8%A7%D8%B1-%D9%81%D8%AF%D9%88%DB%8C-%D9%85%DB%8C%D8%A7%D9%86%DA%AF%DB%8C%D9%86-%D8%B3%D9%86%DB%8C-%D8%A8%D8%B3%DB%8C%D8%A7%D8%B1%DB%8C-%D8%A7%D8%B2-%D8%AF%D8%B3%D8%AA%DA%AF%DB%8C%D8%B1%D8%B4%D8%AF%DA%AF%D8%A7%D9%86-%DB%B1%DB%B5-%D8%B3%D8%A7%D9%84%D9%87-%D8%A7%D8%B3%D8%AA [Accessed November 4, 2022].

[11] Patrick Wintour & Deepa Parent, Iranian Security Forces arresting children in school, reports claim, The Guardian (Oct. 9, 2022), https://www.theguardian.com/world/2022/oct/09/iranian-security-forces-arresting-children-in-school-reports-claim-state-tv-hackers [https://perma.cc/G9KE-FPYN].

[12] Claire Breen, What are the rights of children at the parliament protest – and who protects them?, The Conversation (Feb. 27, 2022), https://theconversation.com/what-are-the-rights-of-children-at-the-parliament-protest-and-who-protects-them-177356 [https://perma.cc/6HB2-KHRN].

[13] Olivia B. Waxman, Here’s What Happened When the Supreme Court Ruled on Whether Students Can Protest During School, Time (March 13, 2018), https://time.com/5171160/gun-control-student-protest-history/ [https://perma.cc/XV8A-KD27].

[14] Richard Adams, Do not encourage pupils to join climate protests, says draft DfE strategy, The Guardian (Nov. 5, 2021), https://www.theguardian.com/education/2021/nov/05/do-not-encourage-pupils-to-join-climate-protests-says-draft-dfe-strategy [https://perma.cc/Y4GY-ZJ99].

[15] Laura Lundy, The Rights of Child Human Rights Defenders. Implementation Guide. CHILD RIGHTS CONNECT (Geneva, 2020), p. 67.