Modelos de tercera generación

Successful interaction with other human beings is dependent on the satisfaction of certain basic needs. It has been argued that personal physical health and autonomy are the minimum32 preconditions allowing such interaction.33 These depend on their

upon a claimant, who Is a holder of such rights both in the eyes of others as well as herself Feinberg.J. (1973). Social Philosophy, p. 59.

29 Palley, C. (1991). The United Kingdom and Human Rights. London, Stevens & Sons, pp. 51-52.

29 The International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), and the International Covenant on Civil and Political Rights 1966 (tCCPR).

30 Tomuschat, C. (1965). 'International Standards and Cultural Diversity.' Bulletin of Human Rights, Special Issue, p. 46.

3' Palley, C. (1991). The United Kingdom and Human Rights, pp 10-13.

32 Doyal, L. and I. Gough (1991), A theory of human need. Basingstoke, Macmillan Education Ltd, p. 78.

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turn on the satisfaction of certain ’intermediate needs'.34 If one accepts this proposition, it follows, that someone growing up without the satisfaction of her material, educational and emotional needs,39 would be unable to reach that stage. The inference is that children and young people, even more than adults, require physical and emotional security, significant primary relationships and education to further their development as autonomous individuals. Whilst welfare interests, such as love and security are readily acknowledged as due to children, autonomy has long been the prerogative of adults. As the need for autonomy is regarded as more fundamental than intermediate needs as education and/or significant primary relationships, one might ask, whether a young person could or should exercise her growing autonomy by leaving education in connection with in her eyes a more pressing need, for instance, the care for a disabled parent.39 However, the example is misleading: the young person concerned is not free to choose between different needs, she also has responsibilities towards her parent37 - how could she allow her parent to suffer without diminishing her sense of self? There is no choice, when decisions are dictated by necessity, in this case, because society lets her down by neglecting to create the conditions in which both parent and child are able to exercise their autonomy. In another scenario, the exercise of autonomy may be more to the point. A young person might want to drop out of school at age fourteen to engage in paid work against the wishes of her parents, due to her dissatisfaction with an academic-oriented education, which might well prove harmful to her. Here one should think of McCloskey's definition

Doyal, L. and I. Gough (1991). A theory of human need. Basingstoke, Macmillan M Education Ltd. PP SO. 54, 5 9-7 3.

Referring to Son's framework of 'universal satisfier characteristics', i.e. those properties of goods, services, activities and relationships which enhance physical health and human autonomy In all cultures (Sen, A. (1987). The Standard of Living: the Tanner Lectures, ed.

G Hawthorn, Cambridge University Press) mentioned In Doyal, L. and I. Gough (1991). A J5 theory of human need, pp. 157-158

M °oyal, L. and I Gough (1991). A theory of human need, pp. 204-216.

„ See Chapter 2. footnote 55.

"The various rights and duties of husband and wife, child and parent [. .] arise not mutually from each other, but Jointly from the common system In which all participate ", White, A. R.

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of 'harm' as 'that which is detrimental to our natural development as individual persons as well as to us as we are now'.3* In such a case, an affluent State could play a mediating role by offering some kind of alternative work-oriented education to young people In their early teens, thereby making partial or replacement education more relevant and attractive to all concerned parties.

Although the child's immediate interests appear to be the more urgent, one should not separate current interests from the ones a child will have as a future adult.

Eekelaar therefore introduces the concept of 'developmental' interest, which needs safeguarding to promote the full development of a child's capacities.39 Advocates of children's rights such as Holt have argued in favour of the same legal rights for children as adults,40 whilst de Langen41 advocated a gradual transition from a position of protection to one of full autonomy. Such a course of action would allow young people the freedom to make their own choices as well as accept responsibility for their actions.42 However, such autonomy interests might well be at variance both with a child's developmental interests and their welfare interests and should in case of conflict be subordinated to these more urgent interests.43 As children develop into near-adults, their needs not so much change as acquire a different emphasis: whilst the needs of infants can be expressed as 'welfare and protection interests', adolescents experience a greater need for autonomy.

By the late twentieth century the physical needs of children in the developed world are met to some extent through public provision, although even in affluent

(1984). Rights. Oxford, Clarendon, p. 70. See also the argument concerning an individual as a bearer of responsibilities, this Chapter, footnote 22.

“ McCloskey, H.M. Human Needs, Rights and Political Values', American Philosophical Quarterly, vol. 13(1), January 1976, p. 6.

39 Eekelaar, J. (1986). 'The emergence of children's rights', p. 170.

40 Holt, J. (1975). Escape from Childhood.1974, 1st Imprint, Harmondsworth, Penguin, p. 143.

4' Professor of Youth Law at Amsterdam from 1976 to 1992.

42 de Langen, M. (1973). Rechl voor jeugdigen: onderzoek near rechten an rechtsbeginselen In he/ Jeugdrecht (youth-centered lew. Study of rights end legal principles in Juvenile law).

Alphen aan den Rijn, Samsom, p. 141.

43 Eekelaar, J. (1966). The emergence of children's rights.'p. 171.

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countries significant groups live below the official poverty line,44 may be homeless and suffer the effects of inadequate nutrition.45 46 * * Research into the effects of poverty suggests that minimal provision is inadequate, as children are set apart by being unable to take part in activities, which their peers take for granted.45

A person needs the ability to make informed choices in order to live a life that allows for the full gamut of social interactions. The capacity to interact fruitfully with other people requires a sense of belonging that is related to their treatment in early childhood. It also relies on a realistic knowledge of the wider world as well as our immediate surroundings. In Feinberg's words:

'to have hardly any knowledge of the world is to be handicapped so severely as to be harmed, though perhaps not as severely as to have imposed on one a systematic set of falsehoods'."

According to one of the original drafters of the CRC it is also crucial to uphold the human dignity of each child as well as the need for the protection of her personality, for integrity and privacy, while keeping in mind that every young person has her own specific interests.45 Additionally it presupposes a degree of independence of thought:

instead of unquestioningly following someone else's directions, a person should be able to decide for herself, whether requests are reasonable and on which grounds.While the need for a stable relationship and sense of belonging essential for a young person's development depend in early childhood on the attitude of the adults in

44 The definition varies across countries. In the U S. this is a percentage of the median income for a family of a certain size, e g. in 1988 the poverty line was approximately 43%

of the median income of all families, Danziger, S. and J. Stern (1990). The Causes and Consequences of Child Poverty In the United States. Florence, UNICEF / International Child Development Center, p. 3.

45 Danziger, S. and J. Stem (1990). The Causes and Consequences of Child Poverty In the United States', Herr, S. (1990-1991). 'Children without homes: Rights to Education and to Family Stability.' U. Miami Law Review (45), p. 337. 1990 estimate of between 280,000 and 750,000 homeless school-age children in the U S.

46 van Nlstelroolj, R. (1998). Dan had mijn moeder een som in hear hoofd. Utrecht, katholiek centrum Welzijnsbehartiging Oost-brabant, pp. 87-89.

4' Feinberg, J. (1973). Social Philosophy, p. 30.

44 Lopatka, A. (1992). The Rights of the Child are Universal: the Perspective of the UN Convention on the Rights of the Child'; The Ideologies of Children’s Rights. M. D. A.

Freeman and P. Veerman. Dordrecht, Martlnus Nijhoff Publishers 23. pp. 47-49.

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a child's immediate surroundings,49 the approval of peers becomes increasingly important in adolescence.50 According to the psychological literature, friends play a crucial role in the development of children and adolescents, which is 'especially true in age-segregated technologically based societies like our own, in which entry into the adult world of work and family responsibility is increasingly delayed. Young people may feel excluded from the peer group if they do not wear the same style of clothes or are unable to engage in the same activities'.51

The difficulty lies in deciding whether there is a specific age at which a child is capable of taking independent decisions without taking her cue from others. While it has been asserted that 'Each human being has his or her own autonomy and personality' treating its validity as a given in relation to children of all ages as well as adults,52 one might question whether the concept of autonomy is applicable to infants at all. According to Lindley, a human being is not capable of exercising autonomy until she becomes 'a person', someone with conception of self, able to express a wish about her intentions. Such a person 'has to be able to think o f himself as a being with a future and a past, a subject of experiences, a possessor of beliefs and desires'.53 While some children may be capable of seeing themselves in this light at an early age, many young people may not reach that stage until later.54 * As development of an individual's personality is a gradual process, there is no sharp dividing line between a stage, at which a child is unable to contribute to her future and one at which she

49 Pringle, M. K. (1986). The needs of children. London, Routledge, p. 34; Doyal and Gough, A theory of human need, p. 37.

50 Pringle, M. K. (1986). The needs of children, p. 54.

91 Mussen, P. H„ J. J. Conger, at a/. (1990). Child development A personality. New York, Harper Collins, pp. 601-602.

52 Lopatka, A. (1992). 'The Rights of the Child are Universal: the Perspective of the UN Convention on the Rights of the Child', p. 47.

53 Lindley, R. (1986). Autonomy, pp. 122-123.

54 Lindley, R. (1986). Autonomy, p. 123; Freeman, M. D. A. (1992b). Taking Children's Rights more seriously'. Children, Rights and the Law. P. Alston, S. Parker and J. Seymour.

Oxford, Oxford University Press, p. 65.

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becomes a fully autonomous person capable of being responsible for her life plan.66 Therefore Feinberg puts forward the notion of 'rights-in-trust,' where the autonomy which the child is not yet capable of exercising, is to be safeguarded for her future.

Respect for her future autonomy as an adult therefore may require preventing her free choice in the present.66 If conflicts arise between the supervisory interests of parents and those of their children (with a possible involvement of the general community) it is up to the State to intervene in its role of parens patriae and uphold the children’s rights-in-trust.57

Traditionally under-age children were denied the opportunity to take decisions on their own account, because as minors they were not supposed to function apart from their family, being as it were the property of their parents. Such a conception of the parent-child relation leaves children 'at the mercy of parents who are not prepared to facilitate a child's growth towards self-determination'.66 It has also been argued that self-determination is too important to be left to children, leading to what has been called the ‘caretaker thesis,' whereby parents or other responsible adults take decisions for dependent children, until they reach a maturity sufficient enabling them to make their own choices. Such an arrangement is based on the premise that children are irrational creatures who 'have not yet developed the cognitive capacity to make intelligent decisions in the light of relevant information about themselves' and who are 'prone to emotional inconstancy'.68 In between attitudes, which deny young people all autonomy, and the liberationist position, which argues for total freedom for children, 56 * * *

56 Feinberg. J. (1980, 1992 reprint). The child's right to an open future.' Freedom and fulfillment: philosophical essays. Princeton, Princeton University Press p. 95.

66 Feinberg, J. (1980, 1992 reprint) The child's right to an open future', pp. 76-78.

67 Feinberg, J. (1980, 1992 reprlntj'The child's right to an open future', p. 79.

56 Montgomery, J. (1988). 'Children as Property.' M.L.R. vol. 51, p. 324. See also Archard on the issue, whether children may be considered 'self-owning', Archard, D. (1993a). ‘Do parents own their children?' The International Journal of Children's Rights, vol. 1, p. 301.

Yet children were able to live independently from their families before child work became illegal, e g. child factory workers Robinson, H. H. (1976). reprint from 1895 edition. Loom and spindle, or, Ufe among the early mill girls. Kailua, Hawaii, Press Pacifica, p. 40.

51 Archard, D. (1993b). Children: rights and childhood. London; New York, Routledge, pp. SI- 57.

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lies the view that parents have to act as trustees for their children, until they are able to take decisions independently.60 This position also takes into account that young people's decisions, especially when in their teens, are likely to be influenced by the views of other teenagers because of the pressure of peer group culture, which makes them particularly vulnerable. If decisions that go against the grain of the majority opinion, are taken for them, young people are relieved from the charge of behaving contrary to established group customs. The argument that children should not only be able to possess certain rights, but also allowed to exercise them, is contingent on their competence to exercise such rights.61 Whilst charges of irrationality may be arbitrary and unfounded, it takes experience to fully understand the implications of one's actions. Although children may have the required understanding to comprehend the consequences of their actions at an early age, they may still lack the necessary emotional maturity needed to take considered decisions. Both are needed to be able to exercise full autonomy.62

To recapitulate: In order to become autonomous, persons need to be able to develop to their fullest potential. Children do not only need physical and emotional security and opportunities for play and intellectual development, but also the opportunity to participate in the life of the community, the freedom to assume increasingly more demanding responsibilities and the exercise of a certain degree of autonomy. The next Chapter discusses to what extent provisions of international and regional conventions adopted during the second half of the twentieth century respond to such needs.

60 Freeman, M. D. A. (1992). The Limits of Children's Rights'. The Ideologies of Children's Rights. M. D. A. Freeman and P. Veerman. Dordrecht, Martlnus Nijhoff Publishers 23, p. 38.

61 Archard, D. (1993b). Children: rights and childhood, p. 65.

62 Eekelaar, J. (1986). 'The emergence of children's rights', p. 181.

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