The International Framework of Children’s Rights Fosters Discrimination against Young People
“The right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by no means certain whether this is possible.” Hannah Arendt
The purposes of this paper are to explore in a comparative manner how discrimination is built into the international framework of children’s rights and examine consequences of these problems for children in vulnerable situations, people human rights are supposed to protect.
Inherent Discrimination in International Framework of Children’s Rights:
From its inception, the international framework of children’s rights was understood as inclusive, a framework through which young people are supposed to be able to call on their governments to implement rights. Nevertheless, a closer look reveals that discrimination is built into the framework. The international framework of children’s rights consists of the U.N. Convention on the Rights of the Child and its Optional Protocols, the U.N. Committee on the Rights of the Child, and the policies and procedures the U.N. Committee uses to enforce the Convention. National governments subscribe to this framework through ratification of the U.N. Convention, which commits member parties to adhere to U.N. Committee procedures. Famously, the U.N. Convention is the most widely-ratified of the U.N. treaties. Accompanying the U.N. Convention are three Optional Protocols: Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, and Optional Protocol to the Convention on the Rights of the Child on a communications procedure. These Optional Protocols are distinct treaties that the U.N. Committee urges member parties to ratify. As of October 7, 2022, 172 member parties have ratified the Optional Protocol on armed conflict, 178 member parties have ratified the Optional Protocol on child trafficking, and 50 member parties have ratified the Optional Protocol on the communication procedure. Because the U.S. Government has ratified the Optional Protocols on armed conflict and child trafficking, it can ratify the Optional Protocol on the communication procedure. Ratifying the third protocol indicates a member party is willing to be subject to an individual complaint about the member party’s implementation of the Convention and Optional Protocols on armed conflict and child trafficking. The individual complaint procedure seems available only to individuals, not a group of individuals. Greta Thunberg and sixteen young people, ages 8 to 17, used the individual complaint procedure to complain that national governments that have ratified the UNCRC have failed to protect young people’s rights and interests around climate change.,, It is this author’s impression that Thunberg and colleagues are the first to attempt to use the individual complaint procedure to file a complaint as a group. Nearly two years later, the U.N. Committee sidestepped the group’s concerns and concluded that the group should take their complaint to national courts.
The International Bill of Human Rights (IHBR) consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The UDHR, ICCPR, and ICESCR are distinct instruments. When a U.N. member party voted for the UDHR, they indicated their agreement with the Declaration’s principles. When a U.N. member party ratifies the ICCPR and the ICESCR, they indicate their promises to implement the Covenant’s contents domestically. As of October 7, 2022, 173 U.N. member parties have ratified the ICCPR, and 171 U.N. member parties have ratified the ICESCR. As their names indicate, the ICCPR articulates civil and political rights, and the ICESCR articulates economic, social, and cultural rights. The IHBR articulates rights belonging to every person—no exceptions.
Despite application of the IBHR to every human, including children, the U.N. adopted the Convention on the Rights of the Child (UNCRC) in 1989 and then initiated the steps needed to establish the U.N. Committee and its procedures. As is well known, all but one U.N. member party, the United States, have ratified the UNCRC. This near universal ratification does demonstrate widespread commitment to the rights and interests of children. Nevertheless, why establish a separate international framework of children’s rights given the IBHR applies to young people? If the IBHR was adopted, why is the UNCRC needed? The UNCRC acknowledges that “particular care” should be extended to young people and young people need “special safeguards.” Yet the ICCPR and ICESCR also acknowledge and incorporate these concerns. ICCPR’s Article 24 states: “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” ICESCR’s Article 11 states: “Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.” Rather than insist that children, like every person, are able to exercise their rights through the ICCPR and the ICESCR, the U.N. and its member parties established an international framework for children’s rights. This child’s rights framework not only may be unnecessary, but also may be used to discriminate against young people. Although the IBHR declares that human rights should prevent discrimination, establishing the international framework of children’s rights indicates that children and their rights are different from other people.
While the framework aspires to assure dignity of every young person and reduce discrimination among young people,,  this framework allows adults to discriminate against young people and young people’s interests, including the exercise of their rights. Through this paper, I intend to demonstrate that the international framework of children’s rights is built on discrimination and that the international framework fails young people when they most need what their rights can do.  Current practices treat young people as neither full members of the societies in which they live nor entitled to exercise rights as societal members.,  Adults are expected to serve as young people’s representatives to their societies and build and maintain institutional mechanisms that ensure young people can exercise rights. Given the international frameworks of children’s rights does not extend all human rights to young people, young people face barriers to changing this framework.
Reliance on Adults:
Discrimination against young people arises from a dilemma built into the children’s rights framework: young people rely on adults to implement their rights. Young people’s reliance on adults is a feature of Aristotle’s notion of the state. In Politics, Aristotle describes the state, its components, and how it works. The state consists of communities, and communities consist of households. The household consists of male citizens who are husbands and their wives, fathers (and mothers) and their children, and owners and slaves. Fathers, according to Aristotle, are expected to protect their children as royal rulers protect their subjects. If the male citizen fails to protect his children, the state, composed of male citizens, will intercede on behalf of young people, so they can live as they should under their father’s royal rule. Of course, while Aristotle’s notion of the state continues to shape contemporary approaches to governance, we recognize that the state often does not intervene to assure young people can exercise their rights. Aristotle’s conception has led to state structures organized around false expectations on utilities of rights for some social groups, such as children.
This dilemma of young people’s reliance on adults to exercise their rights is built into the international framework of children’s rights. This reliance can range from (1) a parent or caretaker who ensures their child can exercise their rights (2) to adults who establish institutional mechanisms necessary to a young person exercising their rights (3) to adults responsible for maintenance and managing institutional mechanisms central to the international framework of children’s rights. This reliance dilemma reveals structural discrimination shaping the exercise of young people’s rights, which can place children in harm’s way. This reliance dilemma exposes young people to failures of parents and caretakers, national governments, and community and society.
We witness this reliance dilemma and its consequences every day; it affects nearly all rights to which children are entitled. Problems resulting from this circumstance are revealed when a young person’s interests seem in opposition to adults’ interests, when young people face danger and great hardship, and when institutional mechanisms purportedly designed to enable young people to exercise their rights instead fail to facilitate those rights. Currently, these problems are part and parcel of everyday life in two camps and a center in North East Syria where young people live: Al-Hol, Al-Roj, and the Houri Center. An examination of these camps and center reveals how discrimination inherent to the children’s rights framework leads to problems for young people, as well as potential solutions.
Discrimination against Vulnerable Children:
The Al-Hol and Al-Roj camps are located in the Al-Hasakeh protectorate in Syria. The Houri Center is based in Tal Marouf, Syria. People living in these camps and center are neither prisoners nor internally displaced. Their statuses are undetermined and unclear. Residents come from over sixty countries, according to Save the Children.
Living in the camps and center presents two problems afflicting young people and their rights as well as a potential challenge. Simply put, the first problem for children’s rights is living in the camps. Every day in the camps, children face desperate circumstances and concerns for their futures. The second problem for children’s rights is trying to exit the camps. An anticipated challenge facing young people and their rights is what will happen if and when they return to their home societies.
Living in the camps and center exposes a problem for children’s rights and the obstacle embedded in the children’s rights framework. The young people did not choose to live there. Living in the camps and center, young people encounter the nonexistence or failure of institutional rights mechanisms operating to assure their rights. While the country of citizenship of every young person living in the camp has ratified the UNCRC (the U.S. Government has attempted to repatriate all U.S. residents), the UNCRC framework has limited utilities to young people living in Al-Hol, Al-Roj, and the Houri Center. Young people struggle to turn to organizations through which they can exercise their rights to health (UNCRC Article 24), education (Article 28), and nutrition (Article 24). Instead, camp residents experience poor health care, little education, and malnutrition. They experience violations of freedoms from economic exploitation (Article 32). Dangers due to fires and flooding are common; violence, including shootings, is frequent. Of course, these young people are socially isolated.
The failure of the international framework of children’s rights is evident in assuming adults serve as young people’s representatives and have their best interests in mind. Boys living in the Houri Center are separated from their parents, caretakers, and families living in the Al-Hol camp and sent to the Center to undergo programs to prevent their radicalization, violating their rights to be with parents and family. Some young people who live in Al-Hol and Al-Roj do not have parents in the camps. In these camps and the Houri Center, adults have failed to establish institutional mechanisms needed for a young resident to exercise their rights. While leaders of some national governments have welcomed orphans to their home societies, some national governments have not. In their home societies, leaders of governments who are responsible for maintaining and managing institutional mechanisms central to the international framework of children’s rights fail to do their jobs and ignore promises they have made to ensure that young people can exercise their rights.
Young people struggle to exercise their rights for purposes of exiting the camps and the Houri Center. The U.N. Committee on the Rights of the Child has called on the national governments of France and Finland to repatriate their children, and for the children they do not repatriate, has instructed the national governments of France and Finland “to take additional measures to mitigate the risks to life, survival and development of the children while they remain in Syria.” For most children living in the camps, governments of their home societies ignore their children’s rights and interests. Instead, these governments allow their young people to live in desperate situations, despite making commitments to repatriate, rehabilitate, and reintegrate their children through the IBHR and UNCRC. Through UNCRC ratification, governments have promised to make detention a last resort and, if detention happens, for the shortest time. The governments of young people living in Al-Hol, Al-Roj, and the Houri Center are failing to implement these treaties and to ensure young people can exercise their rights.
Governments are unwilling to take seriously young people’s citizenship and the rights that come with citizenship. Hannah Arendt criticized human rights for their dependence on national citizenship. The international framework of children’s rights is based on the notion that young people can call on their national governments to enforce their rights. Many governments, however, ignore their children who reside in the Al-Hol and Al-Roj camps and the Houri Center.
What can be done?
Across many countries, national governments have established independent children’s rights institutions (ICRIs), often called children’s ombudspersons and children’s commissioners. These ICRIs typically are independent of their governments yet endowed with legal powers to monitor and advocate for children’s rights. Their focus is on their national governments and their efforts to advance children’s rights through the UNCRC framework.
A global ICRI established to monitor the international framework of children’s rights would concentrate on all young people and the exercise of their rights. A global ICRI would be independent not only of national governments but also the U.N. Committee on the Rights of the Child. If endowed with appropriate powers, this global ICRI could use its independence and powers to monitor national governments, the U.N. Committee, and components of the international framework of children’s rights, including the individual communications procedure. Young people could call on the global ICRI to advocate, protect, promote, and enforce their rights wherever they live.
Societal leaders, especially political leaders, must think long term. If current arrangements encourage short-term thinking, then those arrangements must be corrected. Societal leaders must conceptualize children’s rights as human rights and keep in mind why an international framework of human rights was established for all people. Assuring young people can exercise their rights as humans can foster commitments to non-discrimination, dignity, and participation in communities as citizens, workers, leaders, and parents. Young people can then grow up to make powerful contributions and hold responsibilities as societal leaders who advance “peace, dignity, tolerance, freedom, equality and solidarity…”,
[*] Professor of Sociology, Law, and Applied Social Sciences. Jefferson Science Fellow 2020-2021.
[+] I thank Martha Minow, Gerald Neuman, Christopher Roberts, and Mary Romero for their insightful comments.
 Hannah Arendt, The Origins of Totalitarianism 298 (1951).
 See Brian Gran, An International Framework of Children’s Rights, 13 Annual Rev. of Law and Social Science 79 (2017); Claire Breen, The ageing of Article 2 (1): The child’s right to be free from age-based discrimination, in Child Rights and International Discrimination Law 55-69 (Marit Skivenes & Karl Søvig eds., 2019); Victor Madrigal-Borloz, The Theory of Indirect Discrimination: Application to the Lived Realities of Lesbian, Gay, Bisexual, Trans, and Other Gender Diverse (LGBT) Persons, 34 Harv. Hum. Rts. J., 295 (2021); Jonathan Todres and Shani M. King, Introduction to The Oxford handbook of children’s rights law (Jonathan Todres and Shani M. King eds., 2020).
 See Wouter Vandenhole, The Committee on the Rights of the Child—Size Matters Sometimes, Somewhat: A Comment, 14(1) J. of Hum. Rts. Practice 101-107 (2022). See generally Brian Gran, The Sociology of Children’s Rights (2021).
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 See 16 children, including Greta Thunberg, file landmark complaint to the United Nations Committee on the Rights of the Child, UNICEF (Sept. 23, 2019), https://www.unicef.org/press-releases/16-children-including-greta-thunberg-file-landmark-complaint-united-nations [https://perma.cc/DH5X-CMSN].
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 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
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 See generally id.
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 See generally Aristotle, Aristotle’s Politics (1905).
 See generally id.
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 See Bel Trew, Trapped and Traumatised, The Independent (Jan. 9, 2022), https://www.independent.co.uk/independentpremium/world/syria-camps-foreign-children-isis-b1988200.html [https://perma.cc/UVU8-GADF].
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 Please note that I am trying to determine whether brothers are detained in the Houri Center.
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 See Louisa Loveluck & Mustafa Salim, After years in ISIS prison camp, they now face an uncertain welcome home, The Washington Post (Jul. 5, 2022), https://www.washingtonpost.com/world/2022/07/05/iraq-syria-al-hol-return/ [https://perma.cc/67ZN-SFRE].
 See United Nations Convention on the Rights of the Child, Preamble, art. 37, Nov. 20, 1989, 1577 U.N.T.S. 3; Gerald L. Neuman, Detention as a last resort: the implications of the Human Rights Committee’s General Comment No. 35., in Protecting Migrant Children 381-395 (2018).
 See Hannah Arendt, The Origins of Totalitarianism 230 (1951).
 See Brian Gran, Why the United States Needs a National Children’s Rights Ombudsperson, in The Roles of Independent Children’s Rights Institutions in Advancing Human Rights of Children: Vol 28 115-130 (2022); see generally Michael Garvia Bochenek & Warren Binford, Children Arriving in the United States Need Strong Safeguards, Health and Hum. Rts. J. (2022).
 See generally The Roles of Independent Children’s Rights Institutions in Advancing Human Rights of Children (Agnes Lux & Brian Gran eds, 2022).
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 See Axel Gosseries, Ageing, Unequal Longevities and Intergenerational Justice, in The Cambridge Handbook of the Ethics of Ageing 212 (2022).
 United Nations Convention on the Rights of the Child, Preamble, Nov. 20, 1989, 1577 U.N.T.S. 3.