Rights and Responsibility: How Should We Think about Vulnerable Children?

We use rights language to make claims about what should and should not be done.  Rights language is used to communicate how to fix the wrongs in our society.  No one would deny that vulnerable children have rights, regardless of the fact that they often lack parental advocacy to protect their rights.  In fact, the rights of vulnerable children are often much more visible primarily because their rights are rarely protected.  But rights language raises the issue of responsibility: Who has the responsibility to care for vulnerable children and protect their rights? 

Typically, for children who lack parental advocacy or extended family advocacy, we place the responsibility for their care in the hands of the state.  But this answer assumes that the state has the capacity and willingness to care for vulnerable children.  The question of responsibility is complicated when you consider vulnerable children on the global scale who are located within states with varying capacities and willingness to care for them.  Ultimately, the way we understand the rights of vulnerable children, and assign responsibility for their protection, impacts the way we engage as individuals and communities. 

There are multiple human rights documents that articulate the rights of children in general, and vulnerable children in particular. The Convention on the Rights of a Child (CRC) (1989) is the foundational document articulating children’s rights, and multiple other treaties and protocols build upon that foundation.  These documents articulate the rights of children and provide a common language for discussing rights.  Because rights always correspond with responsibilities, the documents also specify states’ responsibility to protect the rights of children (obligation to protect), their responsibility to facilitate the enjoyment of the basic rights of children (obligation to fulfill), and provide justification for prosecuting violations of rights.  But exactly which rights are articulated, and how do international treaties work to protect children?

Vulnerable children are temporarily or permanently outside their family environment.  As such, under Article 20 of the CRC, they are afforded special protection and assistance from the State.  We can identify the rights in the CRC both through recurring themes and through direct articulation of specific rights.  For example, throughout the CRC two recurring themes are present.  First, children have a right to thrive—all state actions must ensure the “full and harmonious development of [the child’s] personality” (preamble).  Second, the CRC continually claims that in every decision, the primary consideration should be the “best interests of the child (Articles 3, 9, 18, 20, 21, 37, 40).”  Although this language is frequently used, there is little guidance on exactly what is in the best interest of the child, or how that is to be determined, and by whom.  The only consensus concerning the best interest of the child is that the child’s family is an important unit within which the best interest of the child is to be determined, unless that family is unable or unwilling to properly care for the child. 

Beyond these recurring themes, there are multiple rights that are directly articulated. First, states have the obligation to protect children from discrimination; separation from their parents against their parents’ will; prolonged separation from one or more parents across state borders; unlawful interference with their privacy, family, home, or correspondence; various forms of abuse and neglect; economic exploitation; drug abuse; sexual exploitation; abduction or trafficking; and torture, inhuman punishment, or unlawful detention. 

Second, states have the obligation to provide acceptable standards of childcare; freedom of expression, thought, conscience, religion, association, and peaceful assembly; the highest standard of health; an adequate standard of living for their physical, mental, spiritual, moral and social development; access to adequate education; access to rest and leisure; and children’s physical, emotional, and psychological recovery from abuse, neglect, and exploitation. 

Beyond these general rights for all children, vulnerable children are specifically addressed when the CRC charges that with any provision for orphan care, “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural, and linguistic background (Article 20).”  Vulnerable children are in particular danger of losing their identity because when they lose their parental advocacy, they also often lose the community with which they identify.  When they are severed from their community, they can lose their ability to speak their native language, practice the religion of that community, or identify with their own ethnic or national identity.

Beyond articulating these rights, how do treaties like the CRC protect vulnerable children?  First, human rights treaties create a process that sets expectations of states’ behavior and changes domestic laws to conform to that expectation.  International law is not like domestic law, there is no overarching authority mandating that states follow the rules.  In fact, states must submit to the international legal standard in order for it to apply to their behavior.  States sign onto international human rights treaties, like the CRC, to signal that they agree with the rights articulated in the treaty.  Once states sign onto the treaty, it must be ratified through their domestic legal system, and finally implemented into the domestic legal framework through the drafting of laws and sometimes the creation of new institutions.  For a dictatorship or a weak democracy, this process is fairly simple and straightforward, because the will of those in power is often equal to the law.  For a strong democracy, this process can be complicated and lengthy, because lawmaking requires consensus.

This leads to an interesting phenomenon where dictatorships frequently commit to such treaties easily, while democracies can take decades to move the treaty through lawmaking bodies so they enter into force domestically.  Second, treaties such as the CRC play an important normative role in protecting children.  They serve as a focal point for understanding the best way to provide for children and protect them.  Even for states that do not sign onto these treaties and abide by their provisions, having the standard articulated shapes our global understanding of how children should be protected. 

How do human rights documents, and the CRC in particular, shape our understanding of how to care for vulnerable children?  What are the implications for the way we globally engage in child protection?  First, it is never enough to talk about rights if we do not intentionally connect rights to responsibility.  The CRC tasks states with the responsibility of protecting and providing for vulnerable children.  But we know in reality that states often fail to protect children—often they are the chief aggressors against vulnerable children.  Second, these documents provide language and standards, but they can never be seen as sufficient to protect children.  They are only a starting point and a minimal standard for protecting children.  If children are to thrive we must devote the full force of our compassion and creativity at reducing the causes of vulnerable children and building a society that helps all children thrive. 

-Becca McBride is Assistant Professor of Political Science at Calvin College, in Grand Rapids, Michigan.  Her research focuses on investigating how politics influence states’ efforts to control intercountry adoption, and how advocacy organizations influence state policy on adoption.  She has a PhD in Political Science from Vanderbilt University and an MA in Russian, Eurasian, and East European Studies from Georgetown University.