Children's Rights in International Politics: The Transformative Power of Discourse (Transformations of the State)

Transformations of the State Series Editors: Achim Hurrelmann, Carleton University, Canada; Stephan Leibfried, Universi...

Author: Anna Holzscheiter

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Transformations of the State Series Editors: Achim Hurrelmann, Carleton University, Canada; Stephan Leibfried, University of Bremen, Germany; Kerstin Martens, University of Bremen, Germany; Peter Mayer, University of Bremen, Germany. Titles include: Joan DeBardeleben and Achim Hurrelmann (editors) DEMOCRATIC DILEMMAS OF MULTILEVEL GOVERNANCE Legitimacy, Representation and Accountability in the European Union Klaus Dingwerth THE NEW TRANSNATIONALISM Transnational Governance and Democratic Legitimacy Anna Holzscheiter CHILDREN’S RIGHTS IN INTERNATIONAL POLITICS The Transformative Power of Discourse Achim Hurrelmann, Steffen Schneider and Jens Steffek (editors) LEGITIMACY IN AN AGE OF GLOBAL POLITICS Achim Hurrelmann, Stephan Leibfried, Kerstin Martens and Peter Mayer (editors) TRANSFORMING THE GOLDEN-AGE NATION STATE Anja P. Jakobi INTERNATIONAL ORGANIZATIONS AND LIFELONG LEARNING From Global Agendas to Policy Diffusion Kerstin Martens, Alessandra Rusconi and Kathrin Leuze (editors) NEW ARENAS OF EDUCATION GOVERNANCE The Impact of International Organizations and Markets on Educational Policy Making Kerstin Martens, Alexander-Kenneth Nagel, Michael Windzio and Ansgar Weymann (editors) TRANSFORMATION OF EDUCATION POLICY Thomas Rixen THE POLITICAL ECONOMY OF INTERNATIONAL TAX GOVERNANCE Steffen Schneider, Achim Hurrelmann, Zuzana Krell-Laluhová, Frank Nullmeier and Achim Wiesner DEMOCRACY’S DEEP ROOTS Why the Nation State Remains Legitimate Peter Starke RADICAL WELFARE STATE RETRENCHMENT A Comparative Analysis Jens Steffek, Claudia Kissling, Patrizia Nanz (editors) CIVIL SOCIETY PARTICIPATION IN EUROPEAN AND GLOBAL GOVERNANCE A Cure for the Democratic Deficit?

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Michael J. Warning TRANSNATIONAL PUBLIC GOVERNANCE Networks, Law and Legitimacy Hartmut Wessler, Bernhard Peters, Michael Brűggemann, Katharina Kleinenvon Kőnigslőw, Stefanie Sifft TRANSNATIONALIZATION OF PUBLIC SPHERES Hartmut Wessler (editor) PUBLIC DELIBERATION AND PUBLIC CULTURE The Writings of Bernhard Peters, 1993–2005 Jochen Zimmerman, Jörg R. Werner, Philipp B. Volmer GLOBAL GOVERNANCE IN ACCOUNTING Public Power and Private Commitment

Transformations of the State Series Standing Order ISBN 978–1–4039–8544–6 (hardback) 978–1–4039–8545–3 (paperback) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

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Children’s Rights in International Politics The Transformative Power of Discourse Anna Holzscheiter Lecturer, Department of Political and Social Sciences, Freie Universität Berlin, Germany

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© Anna Holzscheiter 2010 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2010 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–24180–0 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. 10 9 8 7 6 5 4 3 2 1 19 18 17 16 15 14 13 12 11 10 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

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Contents List of Tables and Figures

viii

List of Acronyms

ix

Acknowledgements

x

Series Preface 1

xiii

Introduction 1.1 The advent of discourse in IR 1.2 En vogue and vague: Contemporary discourse on discourse in IR 1.3 Dialogue across disciplines: Critical discourse analysis as a multidisciplinary research framework 1.4 Institutions as arenas and resources for discourse 1.5 Global childhood revisited

1 6 7 11 13 15

Part I Discursive Practices, Power and Institutions 2

Power and Exclusion in Discourse Approaches to International Relations 2.1 Discourse and social reality: A working definition 2.2 Why study discourse in international politics?

3 Discursive Transformation and the Role of Institutions 3.1 Discourse and transformation 3.2 Linking power of discourse and power in discourse 3.3 Institutions and their value for combining power of discourse and power in discourse 3.4 International negotiations as sites for discursive contestation 3.5 An analytical framework to study the interplay between discourse, power and institutions

Part II 4

27 28 31 46 47 52 56 62 66

Global Childhood Revisited

Global Childhood – an Essentially Uncontested Concept? 4.1 Childhood in international political practice and research 4.2 The UN Convention on the Rights of the Child as an internationally dominant text

83 84 86

v

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Contents

4.3 The UN Convention on the Rights of the Child as a contested text 4.4 Why choose the UN Convention on the Rights of the Child? 5 Discourses of Childhood – the ‘Communicative Ecology’ of the Child 5.1 The three historical images of childhood 5.2 The ideal of the protected sphere of happiness 5.3 The twentieth century: Internationalization and institutionalization 5.4 The social construction of childhood 5.5 The institutionalization of childhood in international politics and law 5.6 Child images and international norms of child protection in the twentieth century

Part III

91 99 100 103 104 112 114 115

Drafting the UN Convention – towards a New Image of Childhood

6 Origins of the Drafting of the UN Convention on the Rights of the Child 6.1 Investigating the discursive practices creating the CRC 6.2 First traces of a new global childhood discourse during and after the 1979 UN Year of the Child 6.3 Initiating the drafting of a new Convention on the Rights of the Child 7 Discursive Practices within the UN and the Transformation of a Global Childhood Paradigm 7.1 Interdiscursivity – international politics, childhood and the family 7.2 Intertextuality – existing legal standards as discursive resources in the drafting 7.3 Fact construction – beyond controversy 8 The Exclusionary Facets of the Social Environment and Their Effects on the New Image of Childhood 8.1 Non-participants – the silencing of voices 8.2 Asymmetry in knowledge and conversational rights 8.3 Excluded modes of speaking – re-contextualization 8.4 The taboo of the subject – the exclusion of semantic participants

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141 142 144 153 159 160 182 189 196 197 212 215 219

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9

The Convention and Beyond – Future Prospects for an Analysis of Norm Change through Discourse 9.1 The value of a discursive practices approach 9.2 The messy dynamics of treaty drafting and their impact on international norm-transformation 9.3 Understanding the transformation of a global childhood discourse 9.4 Contesting the UN Convention on the Rights of the Child 9.5 Alternative readings of the CRC drafting 9.6 Thinking ahead ...

235 235 238 242 244 247 250

Notes

253

Bibliography

266

Index

297

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Tables and Figures Tables 2.1 Typology of IR discourse approaches 5.1 Child images and international politics in the twentieth century

45 137

Figures 3.1 Funnelling model 3.2 Funnelling model with CDA analytical categories 4.1 Proceedings of analysis

67 80 97

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Acronyms AI CDA CEDAW CHR CRC CRIN DCI DRC ECOSOC FAO GA ICCB ICCPR ICESCR ICJ IGO ILO ISPCAN IUCW IYC NGO OIC RB RBA SCIU UDHR UNESCO UNICEF WHO

Amnesty International Critical Discourse Analysis Convention on the Elimination of All Forms of Discrimination against Women Commission on Human Rights Convention on the Rights of the Child Child’s Rights Information Network Defence for Children International Declaration on the Rights of the Child Economic and Social Council United Nations Food and Agricultural Organization General Assembly International Catholic Child Bureau International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Commission of Jurists Intergovernmental Organization International Labour Organization International Society for Prevention of Child Abuse and Neglect International Union of Child Welfare International Year of the Child Non-governmental organization Organization of Islamic Countries Raedda Barnen Sweden Rights-Based Approach Save the Children International Union Universal Declaration of Human Rights United Nations Educational, Scientific and Cultural Organization United Nations Children’s Emergency Fund World Health Organization

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Acknowledgements At the publication of this book, the United Nations’ Convention on the Rights of the Child will have been in existence for just over 20 years. These two decades have seen its impact grow considerably, and yet, over the same period, the Convention has been frequently subject to critical review. With this study I hope to contribute to the ongoing dialogue – among academics and practitioners alike – about its content and meaning. Most importantly, I hope to make a convincing case for including child protection and human rights legislation for children in the study of international politics – as an essential area of international normcreation and implementation. Many colleagues and friends have supported me in the belief that international legislation and the politics of the rights of the child is both an innovative and an exciting subject to explore in such a study. I am grateful to them for backing my instinct that critical discourse analysis of contemporary global discourses on childhood would wield fascinating results which could, in turn, form the basis of a book. For their unfailing intellectual and moral support, and their enduring faith that my often rudimentary ideas would bring about interesting arguments, I would first and foremost like to thank Thomas Risse and Ruth Wodak. Thomas Risse provided me with a most stimulating academic environment for the coming-into-being of this book and was never too busy to give valuable criticism and advice, both on matters of content and logistical questions. Thomas also enthusiastically promoted the metaphor of the ‘funnel’ which, in the end, resulted in the funnelling model that is proposed as an analytical tool in this book. Ruth Wodak’s guidance in designing a feasible methodological framework was priceless and contributed to my growing confidence in the kind of interdisciplinary research I envisaged. She always demonstrated the open-mindedness and intellectual tolerance of critical discourse analysts, as well as belief in the value of extending discourse analysis methods to a different academic field. My thanks also extend to Friedrich Kratochwil who critically supervised the writing of some of the conceptual and theoretical parts of the book during my time as a research student at the European University Institute in Florence, Italy, in the spring of 2004. Carrying out the research for this book would not have been possible without a PhD scholarship from the German x

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Acknowledgements xi

National Academic Foundation. Between 2002 and 2006, the Foundation supported me financially; it also backed my field research plans and never opposed my taking ‘time off’ to do consultancy work with UNICEF, or spending time abroad as a visiting scholar. With regard to the extensive analysis of the history of the UN Convention on the Rights of the Child, my mentor Nigel Cantwell – himself a leading figure in the creation of the CRC – shared with me his wisdom and lifelong experience of child rights work. Our long interview sessions and discussions of Nigel’s role in the drafting, as well as his recollection of this treaty-making process, provided me with invaluable insights and formed the basis of a friendship that reaches well beyond heated debates about international child protection. Without Nigel’s support the case study would certainly not have become what it is now. His first-hand accounts and experience were complemented by the precious help of others in the field. Kamille Cryspin, Coordinator of the Resource Center of Defence for Children International in Geneva, assisted me in combing through the archives of DCI, giving me access to the archive’s hidden treasures and the extensive and often unofficial documentation (letters, memos etc.) of the CRC’s creation. Her counterpart in Florence, Cristina Mencato, librarian responsible for the UNICEF collection, also greatly assisted in compiling the collection of official and unofficial documentation that was used for analysing the drafting of the CRC. Finally, Marta Santos Pais, director of the UNICEF Innocenti Research Centre in Florence, sped up the process of document collection enormously by giving me access to a – then still unpublished – compilation of all official UN documents on the CRC drafting (now published by the OHCHR as the official Legislative History of the Convention on the Rights of the Child). For their continuous moral and intellectual support, I would also like to thank my colleagues Ingo Peters and Cornelia Ulbert from the Center for Transnational Relations, Foreign and Security Policy Studies at Freie Universität Berlin. My thanks also go to the participants of the doctoral research colloquium at FU Berlin – above all Aletta Mondré, Diana Panke and Lora Viola – for their comments on early drafts of different parts of this study. I am also more than grateful to my friends and colleagues Ursula Schroeder, Andrea Liese, Gunilla Fincke and Kristina Hahn for reading various versions of the chapters of this book. The members of our all-female Berlin-based research group Die Amazonen assisted in the early phases of the conceptualization and writing of this book and are affectionately remembered for great afternoons of fiery discussion, cake eating and laughter.

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Acknowledgements

In terms of the final publication of this study, I would like to thank my friend and colleague Klaus Dingwerth, who has given me precious advice on the process of submitting a manuscript. My thanks also extend to Bernhard Zangl and the anonymous reviewer of Palgrave Macmillan, who have carefully read the manuscript and provided valuable comments for final revisions. With her eagle eyes, Sophie Smith greatly helped me in spotting linguistic inaccuracies, interfering whenever my wording got too colloquial or sentences too full of twists and turns. Alexandra Webster and Liz Blackmore of Palgrave Macmillan assisted in the preparation of the final typescript with patience and understanding. I could not have finished the project that finally resulted in this book without the continuous encouragement of my family who always supported me in my plans and ambitions, put up with my frequent movements across European countries and, despite their unfamiliarity with both subject matter and social science terminology of this book, courageously sought to read and understand my writing. These acknowledgements would not be complete without thanking all my friends in Munich, Berlin, Zurich, London and elsewhere, whose personal and professional interests lie somewhere far, far away from the ivory tower of academia. They made me realize that critical inquiry and academic writing are not the only ways of studying social reality and that exploring nature, enjoying good food and cultivating friendships were equally indispensable for staying connected to the world and keeping both feet on the ground. Benjamin, soulmate, companion, and patient and critical reader of what is now this book has steered me through difficult times with his optimism. He gave me the confidence and strength to complete this book, and to confront much greater challenges in life.

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Series Preface When we think about the future of the modern state, we encounter a puzzling variety of scholarly diagnoses and prophecies. Some authors predict nothing less than the total demise of the state as a useful model for organizing society – its powers eroded by a dynamic global economy and by an increasing transference of political decision-making powers to supranational bodies. Others disagree profoundly. They point to the remarkable resilience of the state and its core institutions. For them, even in the age of global markets and politics, the state remains the ultimate guarantor of security, democracy, welfare and the rule of law. These debates raise complex questions for the social sciences: what is happening to the modern liberal nation-state of the OECD bloc? Is it an outdated model? Is it still useful? Is it in need of modest reform or farreaching changes? The state is a complex entity, providing many different services and regulating many areas of everyday life. There can be no simple answer to these questions. The Transformations of the State series will try to disaggregate the tasks and functions of the state into four key, but manageable dimensions: ● ● ● ●

the monopolization of the means of force; the rule of law as prescribed and safeguarded by the constitution; the guarantee of democratic self-governance; and the provision of welfare and the assurance of social cohesion.

In the OECD world of the 1960s and 1970s these four institutional aspects merged as the central characteristics of the modern state, forming a synergetic whole. This series is devoted to empirical and theoretical studies exploring the transformations of this historical model and the promise it still holds today and for the future. Books in the series address research on one or several of these dimensions, in all of which crucial change is taking place. Although political science is the main disciplinary approach, many books will be interdisciplinary in nature and may also draw upon law, economics, history and sociology. We hope that taken together these volumes will provide its readers with the ‘state of the art’ on the ‘state of the state’.

xiii

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xiv Series Preface

This book contributes to the work of the Collaborative Research Center Transformations of the State at the University of Bremen (Germany), and is funded by the German Research Foundation (DFG). The state analyses pursued by the Centre are readily accessible through two overview volumes: Stephan Leibfried and Michael Zürn, (eds), Transformations of the State? (2005); and Achim Hurrelmann, Stephan Leibfried, Kerstin Martens and Peter Mayer, (eds), Transforming the Golden-Age Nation State (2007), published in the Transformations of the State series. Further information on the Centre, can be found at www.state.uni-bremen.de. ACHIM HURRELMANN, STEPHAN LEIBFRIED, K ERSTIN M ARTENS AND PETER MAYER Series Editors

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1 Introduction

To suggest that powerful narratives shape the theory and practice of international relations or that an analysis of communicative exchange has a role in the study of world politics is hardly avant-garde nowadays. Yet, as this book intends to show, terms such as ‘discourse’ or ‘communicative rationality’ have not always been used as self-confidently in the discipline of International Relations (IR) as they are today. While this book was inspired by a fascination for how the linguistic turn has made inroads into theoretical and empirical engagement with international relations, it intends to do more than just explore the impact of language on the discipline. This study has been written with two broad goals in mind: first, it speaks for the value of discourse in IR research, by exploring its current status in the discipline and suggesting the roads that discourse-based scholarship in IR could take in the future. Second, it exemplifies the fruitfulness and importance of discourse approaches to IR by discussing the effects of language and communication on a particular norm-setting process: the drafting exercise leading to the adoption of the UN Convention on the Rights of the Child (CRC) in 1989. With this drafting process and its resulting international treaty, we have witnessed the emancipation of a subject in international politics – the child – that has long been neglected both as an agent as well as a research ‘issue’. The CRC also exemplifies the transformation of modern statehood in the twentieth century. The multitude of issues and duty-bearers it addresses for the protection of the child and his or her rights show how the previously sacred sphere of family life as the primary setting of childhood has become increasingly governed by state legislation and intervention. The history of this particular UN Convention evidences how the governance of childhood has slowly become accepted also on an international level. The CRC 1

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Children’s Rights in International Politics

further testifies to the growing relevance of traditionally domestic issues in international law and politics. The right of the child to privacy, the responsibilities of parents and guardians, the right of the child to be involved in decisions that affect him or herself, the right of the child to information – these norms have been, for the first time, enshrined in international human rights law with the CRC and they certainly reach deep into the private family sphere. Beyond this, the history of children’s rights in international politics is, essentially, the history of how specific domestic cultural values concerning the modern ideal of childhood have shaped a global discourse on which rights and liberties to grant to children. This book investigates the transformation of a distinct set of transnational norms through the development and application of a specific discourse-analytical framework. It demonstrates the value of languageor discourse-based approaches in the study of international norms and institutions by showing their applicability to a particular global discourse. A discourse in which the international norms whose meaning was eventually fixed effectuated a far-reaching transformation of the child’s identity in international politics. The emphasis of this book lies in understanding how norms and institutions are transformed in and through discourse (as social interaction) and the effects of such a transformation on global and domestic policy-making. During the drafting of the CRC, the prevailing perception of the child in international politics shifted from seeing children as mute and helpless objects of charity and protection to perceiving them as speaking and, accordingly, also ‘reasoning’ social agents who should be actively involved in the shaping of their own destiny. The CRC enshrined, for the first time in international law, the right of the child to express his or her own views. Language, the capacity to use language, to form and voice one’s opinions, the right to be listened to and to participate in essential decisions must be seen as the central dimension of a new global discourse on childhood that emerged in the 1960s and 1970s and that was later adopted as part of an extensive norm catalogue in the form of the CRC in 1989. By now, the influential discursive shift that accompanied the new identity of the child in international politics has transformed many policy approaches as well as global and local debates on child protection. To understand how the CRC has come about, why it turned out to be as it is and not otherwise is the central objective of empirical inquiry here – an inquiry that attempts to combine two dimensions of discourse: the meaningconventions connected to what it means to be a child as well as the communicative practices that brought about the CRC.

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Introduction 3

At the heart of this book lies the fundamental assumption that every political decision-making process must be understood as a process of creation and change of meaning – the power of language, therefore, is a central dimension of political practice. The core theoretical argument posits that two specific dimensions of power characterize all forms of social interaction, including political discussions – the power of discourse, that is, the influence of historically specific meaningstructures, and the power in discourse, that is, the power of actors to alter these meaning-structures through communicative actions, individually and collectively. Exploring the concept and analysis of discourse – most commonly understood as ‘meaning in use’ in IR scholarship – aims to identify possibilities to merge these two dimensions of discursive power and their enabling and constraining effect on agency in a single analytical framework. It will be shown that discourse analyses so far undertaken in IR scholarship have concentrated on either one or the other of these power dimensions. This study, in contrast, asserts that both perspectives are necessary when attempting to trace back micro-processes of discursive transformation that take place in institutional ‘social environments’ (Johnston, 2001), such as the Working Group of the Commission on Human Rights within which the CRC was primarily drafted. In effect, the discursive shift with regards to the notion of the ‘global child’ in international politics requires an in-depth process analysis of the tenyear drafting process of the CRC which pays due respect to both the institutional framework of the communicative event (local context) as well as the semantic (i.e. meaning) history of the child in international politics (global context).1 The quest for an analytical model with which to exhibit processes of influence and exclusion in discursive practices taking place in an institutional social environment is driven by two research questions: 1. How can discourse-based approaches and analytical frameworks help to visualize the interplay of power and exclusion in the study of international policy-making as communicative practices? On which levels (actors, micro-structure, macro-structure) do discursive power and exclusion exhibit themselves in transnational discursive action? 2. Where could both exclusionary discursive practices and the transformative potential of communicative interaction be fruitfully investigated in international politics? Which areas and venues in international politics offer promising starting points in order to show the added-value of discourse approaches, especially when

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investigating political practice as real-time discursive action? How can we conceptualize international social interaction as processes of meaning-negotiation? The two major research questions underlying this study are grounded in the argument that current IR discourse-scholarship either focuses on large meaning-systems that surround and pre-structure political action (such as the various meaning-conventions attached to the child in international politics during the twentieth century) or turns its attention towards processes of social interaction where the communicative strategies of actors are in the spotlight – the ways they frame central issues, structure their arguments and interact with others. Thus, it is possible, in essence, to discern a dividing line between actor- and structure-centred discourse analysis in IR research. Actor-focused negotiation analyses that revolve around the notion of communicative action investigate discourse as a particular social logic – ‘arguing’ – wherein actors are willing to listen to others’ arguments and, possibly, are susceptible to changing their position (Müller, 2004; Risse, 2000). Within this field of social inquiry, there is, by now, an ensemble of studies that revert to the Habermasian understanding of discourse and to mostly actor-based, pragmatic linguistic analysis of argumentation strategies and communicative action on the one hand (sometimes called the ‘German school’ of discourse studies in IR). By juxtaposing the logic of arguing with the logic of bargaining, these approaches explain the social processes whereby political agreements are reached through reasoned argumentation. Agents’ motives and strategies, rather than the issue at stake or the historical context of the speaking practices, are at the centre of the research. Critical international theorists, on the other hand, have exploited the notion of discourse from a structural point of view, with the aim of fracturing the central and dominant narratives of international relations, such as sovereignty, security, diplomacy or nation (Ashley and Walker, 1990; Biersteker and Weber, 1996; Campbell, 1998; Der Derian, 1987). Proponents of a notion of discourse as meaning-structures preconditioning discursive action are mostly to be found in Scandinavia, the United Kingdom and some post-positivist islands in the United States. Their discourse analysis is, essentially, a historical enterprise that unearths and traces the emergence and the contestation of powerful narratives. The present theoretical gap between these two major groups of language-based approaches shall be targeted in this study. It has been summarized aptly by Widdowson: [...] One tradition of

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Introduction 5

discourse analysis has made statements about social attitudes and beliefs, the exercise of power, the influence of ideology, and so on, with scant reference to the linguistic data; and another tradition has made statements about the specifics of language in use without paying much attention to social factors’ (Widdowson, 1995: 158). More specifically, the analytical framework developed throughout the first part of this study suggests complementing conventional negotiation analysis with a discourse framework that pays due attention to the transformative discursive practices of actors as well as the meaning-baggage they bring to the negotiation, understood essentially as a process of meaningnegotiation. As a consequence, discourse will be defined in this study as a social space of meaning-negotiation and text-production within which meaning-conventions are both sustained and transformed. It is clear from the above that this study adopts a social constructivist perspective on international political action, giving epistemological preference to an interpretivist, hermeneutic approach towards ‘understanding’ over the positivist quest for ‘explaining’ a course of action. However, although adopting such a lens with which to analyse social interaction, this study remains firmly grounded in a more conventional social constructivist perspective that acknowledges a clear distinction between the ideational and material world. This study rests on the assumption that, even though language and meaning determine different interpretations to material reality, this reality does exist outside discourse and can be comprehended by human beings independently of the language and symbols that represent that material reality. Thus, the study distances itself from a radical postmodern stance that assumes there is ‘nothing outside discourse’ (Derrida quote in Culler, 1997: 12) and that reality cannot exist independently of the language that represents it. This book does not claim to reinvent the wheel concerning the use of discourse in international relations – it argues, though, that central dimensions of the two discourse strands mentioned above can be combined in such a way that they enable the study and understanding of both the power of discourse (the force of inherited meaning) and the power in discourse (the ways in which actors succeed or fail in transforming powerful meaning-conventions). Merging these two facets of discursive power in a single analytical framework, it will be argued, permits the visualization of power and exclusion on two levels: the level of meaning-conventions as well as the level of real-time discursive action. This synthesis between structural and agent-driven forms of discursive power, it is argued, has to date not been sufficiently discussed and

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empirically analysed in International Relations scholarship. What is more, as will be discussed in greater detail below, the synthesis of different levels of discursive power presents a new route in developing multidimensional power frameworks, drawing on influential power theories formulated by Bachrach/Baratz and Lukes as well as essential insights from the sociolinguistic field of Critical Discourse Analysis.

1.1 The advent of discourse in IR One does not have to dig deep to spot the term discourse in International Relations today. Discourse is the catchiest of catchwords and its popularity is growing. A glance through conference programmes, journal articles, summer schools, methodological workshops, calls for papers and monographs confirms this trend. In fact, at present it seems virtually impossible to avoid addressing discursive approaches to international politics, whether to join a vibrant meta-theoretical and methodological debate, or in order to use discourse scholars as the esoteric ‘other’ that is essential to construct the positivist ‘self’. The attractiveness of discourse-based approaches for the investigation of international political processes can be traced back both to the history of ideas in the twentieth century and to certain profound changes in the character of the international system after the end of the Cold War that have affected every branch of the discipline over the past 20 years. It is remarkable that the book that introduced language-based constructivism and, even the term ‘constructivism’ itself to the discipline of International Relations – Nicholas G. Onuf’s World of Our Making (1989) – coincided with the tearing down of political and ideological boundaries between East and West. The end of the Cold War, in fact, has multiplied actors and issue-areas relevant to the discipline of International Relations and the need for norms, regulations and consistent forms of behaviour. The proliferation of international and global institutions has effectuated an observable expansion of discursive practices in international politics. It has also led to the growth of customary channels of information and communication (traditionally provided by international regimes). This development, in particular, has attracted increased interest in the concept, function and performance of discourse in the field of international politics. Over time, scholars appear to have become accustomed to the idea that international political life has a linguistic, discursive and communicative side to it in the practical sense that language is a pragmatic ‘tool’ for reaching political decisions, dealing with conflicts without resorting to violent actions or finding commonly shared

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Introduction 7

definitions for problems of international reach and collective nature (Chilton, 2004: 4), and in the sense that the study of language can be a valuable source for social inquiry in the discipline of International Relations. A number of constructivist studies revolving around major paradigms in global politics such as state sovereignty (Biersteker and Weber, 1996), humanitarian intervention (Crawford, 2002; Fierke, 1996; Johnstone, 2003) or environmental protection (Epstein, 2008; Griggs and Howarth, 2000; Hajer, 1995; Litfin, 1994; Payne, 1996), to name only a few of the most popular fields of interest, testify to the popularity of discourse in IR research today. The prominent reference to power structures contained in language used in political international debates, in documents or within international organizations and their bureaucracies, the power structures revealed by the inclusion/exclusion of participants in the discourse, and the structural force of concepts, ideas, knowledge and terms that predispose human interaction are all subject to examination. In 1994, the newborn German Zeitschrift für Internationale Beziehungen opened its very first issue with an article on ‘International Relations as Communicative Action’ (Müller, 1994) thereby plunging into one of the liveliest theoretical debates in the German IR community to date. In 1999, Jennifer Milliken claimed that ‘studies involving discourse as a key theoretical concept have in recent years been one of the most active and interesting areas of International Relations’ (Milliken, 1999: 225). However, although studies that focus on discourse have by now asserted their place in the theoretical and methodological canon of IR, the field remains fragmented and heterogeneous to such an extent that the most appropriate umbrella-term for this class of approaches may in fact be ‘language-sensitive’ or ‘languagebased’. This has parallels with classifying certain approaches in IR as ‘state-based’ or ‘power-based’.

1.2 En vogue and vague: Contemporary discourse on discourse in IR This study boards the speeding train of discourse research in IR. Rather than representing yet another passenger on this train, it might be portrayed as a critical conductor, observing the travellers and, most importantly, trying to advance and expand customer service (methodology) and rail networks (empirical fields). Two very general observations made on the journey shall be mentioned in this introduction: first, the field presents itself as one of the liveliest in

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IR meta-theoretical and methodological scholarship to date. This is consistent with the observation made by Milliken in 1999 and indicates that discursive approaches are already well established in IR research. Second, however, discourse approaches in IR are also vulnerable to pointed critiques such as: ‘Discourse is something everybody is talking about but without knowing with any certainty just what it is: in vogue and vague’ (Widdowson, 1995: 158). In everyday language, the term discourse is often used synonymously with an academic or public debate centring on a specific issue-area such as ‘human rights discourse’, ‘IR discourse’, ‘neo-institutionalist discourse’, or on a specific genre, for example, ‘media discourse’, ‘parliamentary discourse’. However, as soon as the term is employed with a philosophical or social scientific colouring, matters become far more complicated. Everyone trying to come to terms with the meta-theoretical dimensions of discourse quickly reaches the conclusion that discourse is not only about essentially contested concepts (Connolly, 1974; Gallie, 1956; Shapiro, 1981: 206–210) but also that the term discourse itself qualifies as such a concept. To do discourse analysis does not merely require the correct method of analysis, rather the vagueness of the term discourse and, hence, the need to specify the connotation in which it is used, brings with it a whole range of theoretical and methodological foundations and implications (Phillips and Jorgensen, 2002: 3–4). Discourse analysis comes as ‘a complete package’ (Phillips and Jorgensen, 2002: 4). As shall be shown throughout this book, it is highly misleading to conceive of discourse analysis as merely a set of methods or tools with which to approach empirical phenomena. That is, simply subsuming content analytical methods or qualitative hermeneutics under the heading of discourse analysis, does not justly represent all those, who have, over time, tried to connect their theories about social and political life with the social and political nature of language, that is, discourse. Any work that only employs the term discourse without specifying the theoretical tradition which inspired the approach and which phenomena of social life it can help to identify (power relations, social conventions, institutionalized practices, communicative exchange) must inevitably lead to a ‘sellingoff’ of a concept whose definition brings with it a range of valuable ontological and epistemological assumptions (Phillips and Jorgensen, 2002: 1). Particularly the delineation of discursive practices from other social practices, the relations of discourse to other concepts such as norms, identity or knowledge, is ‘a complicated terrain’ (Schatzki, 2002: 50) and, as such, clarifications as concerns these vacillating boundaries are an integral part of any conceptualization of discourse.

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Introduction 9

Notwithstanding the difficulties that an engagement with the term and study of discourse entails, one cannot deny that, at present, a great many scholars are taking up the challenge delineating and defining this concept. Consider the following list of ‘meanings’ of the term discourse: 1. (general): speech, conversation, discussion 2. discursive presentation of a train of thought by means of a series of statements 3. series of statements or utterances, chain of statements 4. form of a chain of statements/expressions, the manner in which they came about (archaeology): scientific, poetic, religious discourse 5. rule-governed behaviour that leads to a chain or similarly interrelated system of statements (= forms of knowledge) (medicine, psychology etc.) (for instance, in the work of Michel Foucault) 6. language as something practised; spoken language (e.g. in the work of Paul Ricoeur) 7. language as a totality, the linguistic universe 8. discussion and question of validity criteria with the aim of producing consensus among discourse participants (e.g. in the work of Jürgen Habermas) (Vass, 1992, quoted in Titscher et al., 2000: 25/26) In the light of the variety of connotations of the term discourse and the multiplicity of academic traditions it can be attached to, this study intends to clarify certain trends in IR discourse scholarship. It will specify, why certain approaches qualify as ‘discursive’ instead of only ‘language-based’ or ‘language-sensitive’ by establishing various implications and claims that using the term discourse brings with it (i.e. the social, political and exclusionary dimension of language). Eventually, this book endeavours to bring discursive approaches closer to the core of IR studies. It is based on the overarching claim that the time has come to leave aside justifications for why we value language as a research site in IR (Fierke, 2002: 331) and as more than just a ‘mirror of nature’ (Rorty, 1980). What is needed, instead, is a move towards a stronger meta-theoretical and methodological engagement with the questions of how (epistemology and methods) and where (empirical areas) to apply discourse-based approaches. This undertaking seems to be justified by the observation that, at present, scholars of all branches in IR show themselves susceptible to paying greater attention to the role and dynamics of language in social, political and legal processes. So far, however, they neatly separate into those who see studying discourse

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as micro-sociological endeavour and place everyday sociolinguistic interaction at the centre of their studies and those who perceive of discourse as a superstructure, a vast array of different utterances that represent a ‘discursive formation’ which conditions and restrains human linguistic interaction. The discovery of language philosophy and sociolinguistic literature in International Relations must be seen in the wider context of what has been labelled linguistic turn in the realm of human and social sciences, a ‘methodological revolution which linguist philosophers have brought about’ (Rorty, 1967: 4). Based on assumptions of early language philosophy – most prominently Ludwig Wittgenstein but also Martin Heidegger and the French structuralist Ferdinand de Saussure – philosophers of the French school (Derrida, Foucault, Barthes, Lyotard, to name only a few) began to extend the investigation of language, literature and discursive structures to other academic fields such as sociology, philology, psychology and political science. Although this spilled over into IR quite late compared with other disciplines, the linguistic turn has had wide-ranging consequences for this academic field and inspired an ever-increasing interest within IR, both in incorporating discourse theory into the field and in applying methods of discourse analysis to phenomena in international politics. Today, most work done to highlight the value of an investigation of discourses, narratives and speech-acts shares a common ontological commitment associated with constructivist meta-theory. That is to say, it starts from the assumption that linguistic interaction does not parallel a predetermined structure of meaning, but is actively constructing reality. Accordingly, words cannot be seen as merely reflecting an essential reality. Language has to be interpreted in terms of the historical moment, the social situation and the institutional surroundings, in sum, the context in which it is put to use. Realities or truths, thus, can only be grasped by seeing them as highly context-dependent and contingent games, where the utensils (letters, words, expressions) might stay the same but the rules (societal conventions) attached to the use of the utensils might change dramatically over time. Although discourse approaches in IR come together on the firm ground of a social constructivist ontology, they offer a magnificent range of possibilities when it comes to epistemology and methodology, as shall be seen in Chapter 2. It immediately becomes clear that discourse analysis is not a single methodological approach, but rather a vast array of diverse ‘lenses’ through which to look at language use and language structures (Phillips and Jorgensen, 2002: 1). This is

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Introduction 11

both strength and weakness. Strength, because the area of discursive studies in IR can easily establish an interdisciplinary dialogue with the most diverse academic fields and import their conceptualizations of discourse: psychology, linguistics, sociology, anthropology, philosophy or critical theory (Potter, 2003). Weakness, since exactly this inter- or trans-disciplinary exercise (Weiss and Wodak, 2002) may be the main reason for the considerable fragmentation of the field and may prevent discourse scholars in IR from entering into dialogue among themselves and with the rest of the discipline. This disciplinary isolation from each other can also further contribute to their being characterized as ‘esoteric’ approaches to the study of international politics.

1.3 Dialogue across disciplines: Critical discourse analysis as a multidisciplinary research framework Observing the current ‘state of the art’ in IR discourse approaches suggests that perspectives and theories of international politics that focus on language, meaning and communication should be rooted more firmly in the IR landscape. A first suggestion for making language-based approaches more amenable to scholars of different traditions in IR research concerns methodology. Given that many discursive approaches in IR become trapped in meta-theoretical deliberation without providing a methodological translation of their discourse-theorizing, I propose to introduce a whole body of sociolinguistic literature, in which text is subordinated to context and where linguistic parameters are subordinated to sociological ones. This is the branch of Critical Discourse Analysis (CDA). As will be argued in Chapter 3, CDA’s theoretical concepts capture different facets of discursive power, and offer analytical devices, which together form a convenient ‘toolbox’ for examining questions of power and exclusion in international discourse. These approaches offer a range of pragmatic (in the sense of ‘concerned with actual use or practice’), and explicitly social scientific solutions for studying the interplay between power and exclusion, resorting to both historical and sociological contextual factors. As such, they might be even more easily accessible to social science researchers like IR scholars, than are utterly foreign disciplines and their methodologies such as micro-linguistics. The overlapping conceptual sphere between CDA and IR, furthermore, appears significant, since many of the empirical research sites within which CDA scholars operate belong to the realm of national and international politics.

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Critical Discourse Analysis promises a rather concise ‘package’ of discourse-theoretical deliberations, analytical instruments and methodological frameworks. As such, most CDA approaches are explicitly designed to tackle empirical issues – this appears to be extremely necessary in the light of a current tendency to see discourse analysis either as only methodology (as many constructivist works doing some sort of content or rhetorical analysis reveal) or as a critical philosophical undertaking that is of limited value to political practice. CDA can help the IR researcher in overcoming anxieties when facing highly specialized linguistic or language philosophical concepts and methods by pointing to more pragmatic and social science-approaches to the study of politics through the discursive lens. Smith and Yates discuss the difference between linguistic and sociological approaches to the evolving concept of discourse, reaching the conclusion that they differ with respect to the focus and emphasis of the analytic process. Whereas the linguistic model of discourse conceives of ‘text as discourse’ and places textual elements such as syntactic units, paragraphs, pronouns or clauses at the centre of investigation, the sociological gaze shifts the attention to seeing texts as the ‘working elements of a discourse’, hence looking for something ‘greater than the text’ (Smith and Yates, 1998: 6). A more sociologically oriented focus on discourse uses text and speech as concrete evidence for concepts such as cultural resources, ideas, ideology, norms, identities, myths, and so on. Oddly enough, discourse pioneers in IR have so far overlooked most of this literature. While there is certainly a lot out there in the jungle of discourse theory and practice that has not attracted attention so far, it seems that sociolinguistic literature is well placed to intrude the discursive sphere in IR – it can be considered the mother-discipline of discourse analysis and even the main area for experiments on empirical translations of the most popular discourse theories. The suggestion to link the school of CDA to IR discourse theorizing is intended to show more systematic and context-oriented methodologies and to contribute, albeit only partially, to the creation of a toolbox for the translation of concepts into empirical evidence. In addition to that, CDA offers informative accesses to power, authority and influence as well as to the coming-into-being of hegemonic (that is dominating but seemingly uncontested) common sense. CDA can help in grasping various levels of power, both on agent and structural level and as such contribute to filling the various gaps between concepts that approach discourse as an overarching meaning-system foregrounding human action and others concentrating on ‘text and talk’ in actors’ communicative practices.

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Introduction 13

As will be discussed below, CDA’s greatest merit possibly lies in the emphasis it places on institutions as social structures that create and perpetuate power asymmetries which become evident, before all, in institutionalized linguistic codes and communicative practices.

1.4

Institutions as arenas and resources for discourse

The second major objective of this study is to demonstrate the overlapping terrain between linguistic and discursive approaches and more conventional IR research traditions: among them regime theory, sociological institutionalism and policy studies. Proponents of the significance of discourse for understanding international political practices might receive much more attention from their sceptical colleagues if they engaged more closely with established IR theories. For instance, emphasizing the communicative dimensions of international regimes, primarily understood as decision-making forums where commonly shared definitions and concepts are formulated and a common lifeworld is created (Ellis, 2002), adds important insights to a traditional area of IR research using knowledge gained from employing discourse approaches. This second aim of the book directly relates to the need to enter into a dialogue with more traditional concepts and areas of investigation in IR. It is a plea for stressing the role of institutions in the investigation of discourse by conceptualizing them both as resources for discursive action (constitutional, historical dimension) as well as sites for discursive interaction (formal, spatial dimension), that is, a regime, an organizational debate, a negotiation series, follow-up sessions, or a series of world conferences. Institutions will be seen here in a two-fold dimension, moving from the more concrete to the more abstract: as sites for political discourse (where action takes place), and as social conventions (that which governs social interaction). They will be defined as both proceduralized and conventionalized discourse throughout this book. While the notion of proceduralized discourse refers to the institutional structures surrounding social practice in a clear-cut social setting, the concept of conventionalized discourse relates to the larger patterns of meaning and appropriate social behaviour that underlie social action. With regard to the link between language and institution, one can distinguish between those discourse theorists whose critical gaze sees institutions as ‘materialized’ discourses that govern human beings and social relations, and those, who see institutions as arenas for meaningful social interaction in which such institutionalized discourses can be transformed. Discussing

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the role of institutions in discursive approaches and connecting these theories with long-standing institutional theories of IR serves several purposes. First, institutions can help in conceptualizing discursive practice, insofar as they can be seen, in their formal dimension,2 as those sites where ‘real-time’ communicative interaction is to be witnessed and analysed. However, it is not communicative acts per se that are to be observed in institutions. Rather, by including in the analysis the institutional framework that creates and delimits a social environment, exclusionary practices and moments associated with communicative events can be exposed. Connecting discourse theory and analysis to certain power concepts addressing political exclusion, institutional bias and ‘non-decisions’ (Bachrach and Baratz, 1970; Lukes, 1974; Schattschneider, 1975), this book proposes a heuristic device that seeks to make visible instances of exclusion in transnational discourse, the so-called funnelling model. The model attempts to visualize a progressive development of discursive narrowing and exclusion that characterizes any political decision-making process, whereby specific issues, perspectives or participants are ‘pushed out’ of the debate, either through deliberate actions by participants (e.g. the chairman) or due to various constraints (time, standard-operating procedures). Critical Discourse Analysis and its theoretical and analytical frameworks see discourse and institutions as inseparable and mutually constituting entities and, as a consequence, incorporate institutional facets of communicative interaction into their studies of empirical phenomena. Thus, CDA not only offers itself as a strong candidate for suitable methodological frameworks, but it also supports bridge-building between institutional analysis and the critical study of discourse. Scholars within the tradition of CDA conceptualize institutions as both arenas and resources for discourse; they propose a wide range of methodological translations of the mutual constitution of agents and structure in and through institutions. Critical Discourse Analysis following the discourse theory of Fairclough3 and the Vienna School of Critical Discourse Analysis4 offers a set of analytical concepts and tools with which to integrate structural features of a discursive order (power of discourse) with agentdriven discursive action and practices (power in discourse) within the funnelling model. Eventually, the model attempts to depict a meaningmaking process as a process of inclusion and exclusion wherein certain interlocutors’ conversational rights are more extensive than others and wherein both the power of meaning-conventions as well as the rules and regulations of the institutional setting for interaction curtail certain actors’ speaking possibilities while they benefit others’.

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Introduction 15

By focusing on institutions as social environments, and examining what happens within them, it might be possible to capture the ways in which individual actors or groups of actors sustain or transform dominant meaning-conventions (Johnston, 2001). Like, for instance, the discourse that defined the child as an object of charity which dominated the international politics of child protection for the most part of the twentieth century. Studying institutions in this way might provide a window onto how social dynamics and processes of discursive exchange produce texts such as the CRC that are simultaneously highly innovative and highly problematic.

1.5

Global childhood revisited

The drafting history of the CRC is taken to be a particularly appropriate case to demonstrate the benefits of the analytical framework developed here. The length of its negotiations, the variety of actors and worldviews involved and its comparatively comprehensive documentation make this a suitable case for a discourse analysis of processes of meaningnegotiation. And even though the negotiations to the CRC as the most important international treaty in the field of childhood have attracted some attention – concerning the involvement of NGOs and concerning the novelties contained in the document – there is, to date, no comprehensive analysis of the social dynamics and discursive practices that produced the CRC.5 The decision to choose this particular case of norm-transformation in international politics was also related to the quality of the issue or the ‘problem’ at stake: ‘childhood and child protection’ may be seen as a field that, from the standpoint of classical regime theory, belongs to the category of value disputes rather than distributional problems (even though some conflicts concerning the latter emerged during the debate). It has been frequently argued that international regimes targeting human rights issues pose serious problems for rationalist explanations of international cooperation. At first sight, there appears to be no need for regulatory mechanisms and no ‘global public goods’ problem in this field (Schimmelfennig, 1997: 237). Human rights issues, particularly international treaty-making efforts, have therefore come to be seen as particularly suitable for constructivist analyses of the emergence of international norm-consensus and norm-compliance, since their focus on processes of argumentation, deliberation, and the intersubjective creation of values and norms allows the surfacing of moral values in the international community and the impact of these moral

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standards on domestic action to be accounted for (Risse et al., 1999b). How to treat children, how to strike a balance between the authority of parents/adults and the rights of children, which subgroups of children to privilege, what principles to emphasize in children’s education – all of these normative questions have been touched on during the negotiations and they certainly involve a high degree of moral reasoning and differing worldviews rather than just mere disputes over distributional justice. Thus, when setting out to explore the international politics of childhood, it seemed likely that the drafting history of the CRC would be exceptionally rich in conflicting ideas about how to define and treat children, and to display competing meaning-conventions attached to childhood. The previous pages have already addressed some dimensions of the international discourse on childhood, child protection and child’s rights that have been fundamentally transformed with the norm catalogue of the Convention on the Rights of the Child. As shall be shown in the empirical part of this study, the primary locus for this transformation of the global identity of the child, from mute object to speaking subject with his or her own interests and a right to be involved in decisions, was the drafting process within which the CRC was created. Many have welcomed this identity-shift as a genuine empowerment and emancipation of the child from the authority of both the state and his or her parents – many have also critically commented on the CRC, particularly its most innovative elements as being particularly difficult to implement, primarily because many of the most fundamental dimensions address not only States Parties’ obligations but also society at large and the previously private family sphere. Others have attacked the CRC as yet another product of Western values and the popularity of the CRC among international actors as another sign of the globalization of Western values in global politics. Whatever the case may be, one cannot deny that the CRC is the most fundamental norm catalogue in the field of child protection globally and that it continues to have a tremendous impact on law-making and policy-making in the field of child protection and children’s rights. Interestingly, the global politics of child protection and the global discourse on human rights for children have so far received scant attention in IR scholarship (Carpenter, 2005; Carpenter, 2003; Carpenter, 2006). Even though the child might be a less compelling subject in IR theory and practice, it has in recent years occupied an increasingly significant space in international politics, particularly within areas that touch upon ‘hard politics’ such as children in armed conflict, migration

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Introduction 17

and the question of unaccompanied minor refugees, with regards to child trafficking, child prostitution and child labour, and with regards to the continuing spread of HIV and the heavy burden it puts on future generations. Heightened awareness of these issues in international politics has also led to the adoption of two additional protocols to the CRC, on children in armed conflict and child prostitution. Within these debates the concept of children’s rights has both come up as a focal point for policy- and decision-makers, especially in the work of state authorities and civil society organizations. At the same time, however, with knowledge about children and the diversity of their life experiences mounting, the CRC itself becomes increasingly questioned as a suitable tool in the advocacy for children. This all the more so in many non-Western societies in which the concept of (human) rights in itself has little societal ‘grip’, and the thought of granting these rights to children receives even less societal acceptance (Harris-Short, 2001; Harris-Short, 2003). Discursive practices, power and exclusion in the ‘making-of’ the CRC In relation to the theoretical discussion of this book, thus, the CRC and its coming-into-being represent a suitable empirical terrain for several reasons. First, it is not difficult to establish the CRC as the central ‘text’ that shapes and informs international political and social action towards children at present. With the rapid and increasing institutionalization of the CRC, it is highly constitutive of the present international political reality. Second, the CRC contains a comprehensive understanding of who a child is, carrying a picture of childhood, that, despite its inevitably fuzzy boundaries (as an international legal document) poses serious problems in translation into different cultural contexts (among others: Breen, 2002; Burr, 2002; Montgomery, 2001; Rizzini, 2001; Rwezaura, 1998b). In many parts of the world, the liberal, emancipatory cultural imprints of the CRC are met with serious contestation as regards the special status of children and the considerable norm catalogue of the CRC. Seen from this perspective, it seems problematic to hail the Convention as a truly ‘universal’ document. Third, the CRC entails a discursive shift that makes the process of its formulation particularly interesting for a study of discursive change via the discursive practices of international state and non-state actors. In retrospect, the negotiation series that led to formulating this increasingly popular and problematic document gains weight as a process of meaning-negotiation that has had wide-ranging consequences on

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international perspectives regarding children. Since the document is widely contested in its universal applicability today, it has to be assumed that it was equally, if not even more, contested, at the time of its creation. In the light of the theoretical framework for studying power and exclusion in international discursive practices, the following questions will be addressed to the case: How did the specific perspective on children, childhood and child’s rights come into being? Which processes of exclusion and influence made such a shift possible? Where can the contesting forces that threatened (and continue to threaten) the discourse in question be located? Where can the ‘change-oriented’ or ‘transformational actors’ be found (Cerny, 2000: 438)? How did the institutional framework enable transformation? Which aspects of agents’ discursive practices did it constrain? The drafting history of the CRC bears particular potential as a case study to substantiate the value of an institutionalist discourse-approach. First, the primary communicative events during which the transformation of childhood norms occurred took place in a relatively clear-cut institutional framework whose rules for participation and interaction were easy to identify. Furthermore, treaty negotiations can be seen as teleological policy-making processes, that is, ideally envisage a ‘product’ at the end: a decision, agreement or treaty, understood as meaningclosure. As such, time constraints and decision-making pressure make certain exclusionary practices inevitable and contribute to the funnelling character of the communicative process. This study is certainly not the first work to investigate international negotiations from a discourse standpoint. Litfin has investigated the negotiations to the Montreal Protocol (Litfin, 1994), Müller, Risse and others have elaborated on the International Criminal Court, the Nuclear Non-Proliferation Treaty or the Anti-Landmine Ban (Deitelhoff, 2006; Müller, 2004; Risse and Ulbert, 2001). Several other studies have investigated negotiations of environmental issues from a discourse standpoint (Hajer, 1995; Keeley and Scoones, 2000; Payne, 1996). This study agrees with the discourse works quoted above that negotiations are exceptionally rewarding for a study of social interaction, since they usually involve a limited number of actors, often involve different kinds of actors (states, international organizations, NGOs) and, in many cases, develop into some sort of social environment (Johnston, 2001) in which actors regularly interact with each other and create a thin a common lifeworld among each other. Various legal analyses of the CRC provisions (their innovative but also contradictory nature) have been undertaken in the past (among

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Introduction 19

many others: Alston and Gilmour-Walsh, 1996; Alston et al., 1995; Bennett, 1987; Dorsch, 1994; Hafen and Hafen, 1996). By nature of its sociolinguistic focus, this study is not the place for a legal discussion of the innovative elements of the CRC, even though it partly deduces the problematic character of the CRC from the legal writings mentioned above. It will make use of these various publications in order to refer to the intricacies connected to the legal implementation of the various articles, especially with reference to political, legal and societal contexts in developing countries and non-Western cultural spheres (Africa, Asia, Latin America). As such, these texts will be employed to support the argument that certain of the most revolutionary provisions of the CRC are met with wide-ranging contestation, both in societies of the ‘North’ as elsewhere. Inevitably, the empirical part of this study will refer to certain of the CRC’s articles as particularly important for the paradigm shift that is at the centre of the investigation. Yet, it does not aim to discuss singular articles as to their possibilities for implementation, or to their legal coherence. Alternative reading or complementary analysis of the CRC? A discourse-analytical exploration of the discursive shift in the international politics of childhood – a shift reflected in both the drafting process of the CRC as well as the Convention itself – does not envisage a complete dismissal of alternative explanations for why this shift has happened. As will become obvious in the empirical analysis of the negotiation process (Part III of this book), the power constellations of the final phase of the Cold War, the period of ‘détente’ in the years after 1986 (Gorbachev’s election as General Secretary of the Communist Party), and conflicts between Western and Eastern European countries on the one hand and the ‘South’ on the other are all clearly identifiable in agents’ speaking practice and in the political moves they made during the ten-year negotiation series. All participants interviewed for and quoted in this study also reported Cold War tension before and relaxation after 1986. Realist explanations for the introduction and broad acceptance of a comprehensive human rights perspective on children, particularly civil and political rights, are well founded and show the result of the negotiations as partly the success of a childhood discourse of the increasingly powerful ‘West’. Yet, it will be shown that this is not the whole story of the CRC. The discourse-analytical framework suggested here does not claim to offer a solid explanation for the outcome of the process, to account for the genuine interests, intentions or motives of actors, but rather

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aims at understanding how the document has come about, how certain participants shifted their position, introduced new ideas and concepts into the debate, accepted or rejected certain proposals. Applied to the particular case of the CRC, a discourse framework enriches conventional negotiation analysis by adding a methodology that enables the systematic study of discursive practices, various facets of power and exclusionary dimensions. Ultimately, it offers a richer and more balanced process analysis of social interaction. As shall be seen, in certain regards, this rich analysis supports counter-arguments against realist explanations that would, for instance, juxtapose Western states’ promotion of civil and political rights with Eastern countries’ emphasis on economic, social and cultural rights. During the drafting of the CRC it was, in fact, the sponsor of the proposal – then communist Poland – that introduced a notion of the ‘evolving child’, an idea that opened up the greatest leeway for a transfer of the whole catalogue of civil and political human rights onto children. Beyond its focus on how the children’s rights agenda has been broadened with the CRC and who was responsible for this development, it is the aim of the case study to show how various narratives of childhood influenced the decision-making process, how the socio-political context in which the drafting took place prefigured the debate and, primarily, how the institutional framework affected the statements made and the decisions taken. The focus of analysis, thus, lies on the effects of meaning-structures on social interaction (child images) and the effects of social interaction (drafting process) on the transformation of these meaning-structures (the introduction of the ‘evolving child’). Plan of the book The first substantial chapter of this book, Chapter 2, will concentrate on a discussion of the current ‘state of the art’ in IR discourse scholarship. Two branches of discourse scholarship will be identified: first, arguing-approaches as those approaches that define discourse rather narrowly as communicative interaction and that are strongly actororiented. This class of discourse approaches offers unconventional perspectives on the various rationalities and social logics that characterize negotiations between state and non-state actors. Second, it is possible to identify the structural approaches that embrace a holistic understanding of discourse as a system of meaning. Rather than providing a general overview on the various schools of thought that might be identified, the chapter will attempt to immediately enter the fray: it summarizes contemporary routes in discourse thinking and

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Introduction 21

empirical translations and straight away relates them to the question of how they conceptualize and where they search for empirical evidence of discursive power. Chapter 2 then concludes with a classification of discourse-based approaches in IR that includes the central parameters of the ensuing theoretical deliberations – most importantly the issues of agency-structure, process, power and exclusion. With this classification in mind, Chapter 3 will reflect on the relationship between discourse and transformation and critique the extent to which both arguing and structural approaches are able/unable to understand transformation. Two analytical challenges will be emphasized: the analysis of process and the interplay between power and exclusion. Both branches have limitations when approaching processes of transformation. It will be argued that a comprehensive analysis of transformation necessitates paying attention to two dimensions of power – power in discourse and power of discourse – thus merging central insights from both schools of discourse analysis. The latter part of Chapter 3 addresses the second major research question that drives this book – where to look for exclusionary discursive practices and the transformative potential of communicative interaction. The chapter constructs a heuristic device – the funnelling model – that visualizes several levels of influence and exclusion (at both agent and structural level). As such, the funnelling device aims to bridge power of discourse and power in discourse. Chapter 3 demonstrates the added-value of a two-fold notion of context (global and local) and specifies the various contextual and textual features that lead to a discursive narrowing which is epitomized by the ‘funnel’. It begins by positioning the metatheoretical concept of discourse in the IR landscape, both to show its affinities with more classical terms and theories and, more importantly, in order to point to the various opportunities that discursive approaches offer, even to sceptical scholars of the more solid ‘schools’ in IR theory. By stressing the value of institutions for an inquiry into influence and exclusion in international discursive practice, this chapter attempts to establish an intra-disciplinary match between (neo)-institutionalist theory and discourse meta-theory. For the purpose of an analytical translation of the core assumptions related to the interplay between power of discourse and power in discourse, the chapter will refer to insights from the sociolinguistic school of Critical Discourse Analysis (CDA). Not only does this particular branch of discourse thinking offer various attempts to integrate diverse layers of power in the analysis of ‘text and talk’, but it also disposes of a range of analytical devices with which to identify critical dimensions of power

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and exclusion in the study of empirical discourse. CDA emphasizes the central role that institutions play in the analysis of discourse and that discourse occupies in institutional practices. Connecting several of the most prominent sociological and linguist concepts used by this school to the funnelling model will lead to refined versions of this model in which analytical devices are matched with theoretical deliberations on international negotiations as a particular subset of ‘institutional talk’ (Drew and Heritage, 1992a: 20) in international politics. Chapter 3 will conclude by considering the added-value of the funnelling model, its advantages for tackling international discursive action and, thus, for the possible contribution of discursive approaches to a better understanding of how everyday political action works. The empirical part of this book will proceed as follows: after a short discussion of both the dominant as well as contested character (Chapter 4) of the Convention on the Rights of the Child, it will discuss several methodological implications of the transformation of raw material into a data corpus and outline various methodological difficulties. It will also explain the deliberations that led to choosing this particular case of discursive practice. The subsequent chapter (Chapter 5) sketches a short genealogy of the ‘history of the child’, in which the various subdiscourses that have been attached to the semantic field of the ‘child’, particularly throughout the nineteenth and twentieth centuries are identified. These sub-discourses will themselves be aggregated into a couple of images that carry a distinct understanding of childhood and the child. This chapter will particularly focus on the twentieth century since that is when children slowly emerged as political and legal subjects in international politics. Furthermore, Chapter 5 will elaborate on the immediate socio-political context that preceded and surrounded the CRC drafting process within the confines of the UN, in particular the children’s rights movement of the 1960s and 1970s, the slow emergence of ‘the child’ as a subject in various sciences, and perspectives on children and childhood that emerged in cultural spheres other than US-European ones. These various narratives of childhood will then be related to a number of international documents dealing with children – discussing international law with regards to the special situation and status of children will support the claim that childhood became institutionalized in international politics throughout the twentieth century. Finally, and most importantly, Part III of this book (Chapters 6 to 8) – the actual analysis of speaking practice during the negotiations of the CRC – will show how the various sub-discourses related to the semantic field of the child have figured in agents’ discursive practices in the

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Introduction 23

specific context of the drafting of the CRC. The range of assumptions related to both the constraints and opportunities presented by the power of discourse (meaning-conventions attached to childhood) and power in discourse (the potential to transform these meaning-conventions through communicative interaction) will be applied to the case study and it will be shown how agents dealt with the constraining effects of the institutional rules and procedures, how they inserted new perspectives and how their communicative and social practices contributed to the paradigm change contained in the final document that today shapes the lives of so many children.

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Part I Discursive Practices, Power and Institutions

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2 Power and Exclusion in Discourse Approaches to International Relations

Anyone interested in the use of discourse in IR will quickly come to realize that this area of social inquiry accommodates one of the liveliest inter- and trans-disciplinary dialogues in IR, a dialogue which comprises grand social theories like Habermas’ Theory of Communicative Action,1 the critical historicism of Michel Foucault (Foucault, 1970; Foucault, 2003), the historical approach of Quentin Skinner and the Cambridge School (see for example: Tully, 1988), the power theories of Gramsci and Bourdieu, the complex neo-Gramscian discourse theory of Laclau and Mouffe (Laclau, 1981; Laclau, 1996; Laclau and Mouffe, 2000; Laclau and Mouffe, 2001) and the so-called Essex School (among others: Howarth et al., 2000). Last but not least is a – surprisingly often overlooked – huge sociolinguistic stock of more empirically oriented discourse literature.2 The great variety of neighbouring disciplines that are interwoven with discourse-based approaches to IR contributes to the present heterogeneity of this field. However, it also encourages an opening up of the discipline towards debates and concepts from other areas of social inquiry. This chapter is, essentially, a review of the contemporary discourse approaches to international politics. The review centres on the question of how these approaches have dealt with power and exclusion and will lead to a typology that establishes the central parameters for the discussion of the first major research question in Chapter 3 – namely: how can discourse-based approaches and analytical frameworks help to visualize the interplay of power and exclusion in the study of international policy-making processes as communicative practices? The chapter starts with a preliminary definition of discourse that will be refined 27

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throughout the chapter. It then moves on to a discussion of the major line of differentiation along which discourse approaches in IR can be classified – a line running along the agent-structure dichotomy. The discussion of agent-based and-structure-focused discourse research will be followed by a review of discourse approaches in IR scholarship – why have IR scholars turned to discourse as a theoretical and analytical concept? How have they defined discourse? Which puzzles have they tackled by invoking the term? Which dimensions of international politics have they targeted? These will be the questions guiding the recapitulation of the place of discourse in the study of international politics. The review concludes with a taxonomy of discourse approaches, distinguishing between agent-based and structure-focused discourse approaches and summarizes the central arguments of both strands of discourse-based inquiry in a table.

2.1

Discourse and social reality: A working definition

At its most fundamental, discourse as a social phenomenon denotes ‘language in use’ (Chilton, 1996: 16; Neumann, 2002: 627; Wodak, 1996: 15), ‘structures of meaning in use’ (Weldes and Saco, 1996: 373) or, ‘text in context’ (Hak, 1999). Using the term discourse indicates that the researcher is concerned not with the mere existence of certain socially shared meanings but, instead, with both their coming-intobeing and with what is done with language, that is, with the productive forces of language. Furthermore, he or she places the production, reception and transformation of texts in their respective (social, historical, political) contexts. Language is no longer investigated as a closed, internally structured ‘text’ (as it is still often taught in school curricula), but instead understood in its social, interpersonal, historical and dynamic dimensions. At the centre of social inquiry is, thus, the use of language in specific social situations. Contextual parameters are introduced in order to show how the language used is dependent on particular meaning-conventions (global context) or on particular features of the social situation within which actors communicate with each other about the world (local context). The analysis of discourse aims to describe how every instance of language use and of the adaptation of certain meaning-conventions to new situations inevitably – although often not ‘observably’ – slightly shifts and alters the meaning attached to linguistic signs and social action. Accordingly, text and context are seen as co-constitutive. It will become obvious in the following discussion that discourse scholars adopt rather disparate understandings of

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what they see as relevant context to discourse: the historical or sociopolitical context within which acts of speaking and writing take place; the institutional context wherein agents interact; the material realities that precede discourse and, at the same time, are given meaning in and through discourse. Acknowledging these different interpretations of context, the following broad understanding of DISCOURSE will be used as a preliminary definition. Discourse will be defined as a social space of meaning-negotiation and text-production within which meaning-conventions are both sustained and transformed. By now, it has become almost a platitude in constructivist thinking to point to the mutual constitution of agents and structures and, over and above that, to conceive of structures as both ‘enabling and constraining’ (among many others: Bieler and Morton, 2001: 25; Hajer, 1995: 48–49; Katzenstein, 1996: 27–28; Kratochwil, 1997: 86; Risse, 2002a: 605; Risse, 2002b: 259). This concept of enabling-constraining can be seen as the linchpin of reflexive approaches that purposefully abstain from the social science legacy of finding and formulating explanations in the sense of ‘laws’ and from extrapolating unidirectional relations between dependent and independent variables (Schatzki, 2002: 45). Instead, these reflexive accounts of international politics point to cyclical processes of mutual interdependence. Yet, as ongoing critical reflection on this co-constitutive relationship demonstrates, its analytical and empirical application still presents a major challenge to constructivist scholarship (Jäger, 1996; Schaber and Ulbert, 1994). Without wanting to delve too deeply into the debate on the eternal agent-structure problem (see for instance: Bieler and Morton, 2001; Cerny, 2000; Doty, 1997; Wendt, 1987; Wight, 1999), it has to be stated that discursive approaches to international politics, by stressing the mutual constitution of text and context, articulators and social structures, can be seen as being especially challenged by the various difficulties attached to this epistemological enterprise (Doty, 1997). The broad definition given above also comprises this co-constitution of agents and structures which, basically, amounts to a co-constitution of text and social context. The following discussion of discourse-based approaches in IR will show how various facets of this definition have been seized in IR and how scholars have sought to observe the co-constitution of agents and structures in their empirical analysis. Political discourse as communicative interaction Politics can be conceived of as discourse in the sense that it is an entity that is comprised of both texts and political action. This implies that

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political action is always and inherently based upon a specific interpretation of reality held by individual political agents (Nonhoff, 1999). Put differently, the realm of ‘the political’ must be seen as the principal arena or locus for meaning-making (Laclau and Mouffe, 2001: xvii). Furthermore, micro-level political behaviour, such as agents’ participation in parliamentary debates, broadcast and newspaper interviews, an international negotiation series, a conference, a meeting of state representatives, is always linguistic interaction that produces and reproduces reality. There is no ‘rhetoric’ as opposed to ‘real speaking’, even if it is certainly legitimate to argue that much of politics is about the rhetorical and ideological manipulation of specific audiences (voters, lobbies, the parliament, the media) (Hacker, 1996: 29). Manipulation implies that knowledge is deliberately distorted, withheld or misconstrued by political stakeholders with the aim of representing one’s own political action as beneficial, good and right and the opponent’s as harmful, bad and wrong. However, politics as discursive action is as much about the manipulation of knowledge as it is about the invocation of common goods, third instances (such as ‘the law’, ‘justice’, ‘fairness’) or, generally, certain norms and societal conventions that speakers assume to be strong sources of legitimization. Thus, seen from the agent-perspective, politics can be conceived as discursive action in the sense that individual speech-acts always relate to a larger social and historical context than just the institutional context in which texts are produced (Chilton, 1996: 4). Primarily, though, understanding politics as practices of manipulating and instrumentalizing language asserts that subjects make meaning and that one of their supreme areas for struggles of domination and authority is discourse. Discourse as social institutions – the influence of meaning-conventions on political action On the structural side, discourses are understood as social institutions and conventionalized ways of seeing the world and relating to it through language. These linguistic conventions have become widely shared among the members of a society and constrain individuals in the ways they perceive reality. Over time, certain ways of speaking about reality and, thus, also seeing the world materialize and, gradually, generate institutionalized practices that have a direct effect on the lives of individuals in a society. Certain claims and utterances remain ‘said’ and valid much longer than just for the instant in which they were uttered – their lasting influence on human thought, speech and action becomes manifest in the constant repetition of similar arguments.

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A discourse-perspective that looks at the force of utterances (as large aggregates of arguments) is commonly and most famously associated with the writings of Michel Foucault. For Foucault, discourses that sustain forceful meaning-conventions are necessarily political in that they ‘govern’ the everyday lives of subjects (Foucault, 1970; Foucault, 1984a; Foucault, 1984b; Foucault, 1992a; Foucault, 2003). Speakers here are not political actors in the sense that they use certain arguments to further their cause in their participation in political life, but in the sense that they are representatives of specific forceful discourses that reproduce and govern identities and subjectivities. Language use therefore must be seen in its semantic rather than its pragmatic dimension in that we reproduce established meanings by using certain discursive repertoires (Shapiro, 1981: 21) – we ‘speak’ objects and events (Shapiro, 1981: 124). An approach to language use, therefore, should give the ‘inquiry into questions of meaning the status of political inquiry – political inquiry that uncovers the political presuppositions inherent to language and in alternative speech practices’ (Shapiro, 1981: 24). This implies, ultimately, that in order to undertake a political inquiry into discourse, the scholar does not have to restrict him or herself to ‘political discourse’ (van Dijk, 1997b), that is, text and talk that is produced in specific institutional settings belonging to a political system or produced by agents occupying specific roles in this setting, but rather that political relations can be detected in all discursive practices. In this sense, seeing discourse as a vaulting structure that shapes our identities, thoughts, social practices and everyday lives ultimately posits that meaning makes subjects. The latter can be crudely summarized as the structural perspective on discourse, defining discourse as that which is shaping and influencing actors in their text and talk, while the former can be associated with a more agent-oriented and pragmatic (in the sense of relating to linguistic practice) study of language use and with linguistic action as informing and transforming discourse. In the following review of IR discourse approaches, the two differing theoretical and analytical perspectives will guide an attempt to classify discourse-based approaches and to extract the core arguments of the two classes of discourse approaches.

2.2

Why study discourse in international politics?

First, a critical discussion of discourse scholarship in IR must answer the question of why IR scholars are attracted to discourse as a central concept; why they call on various discourse traditions (mostly tied to

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the Habermasian and Foucauldian legacy) as a theoretical underpinning and look to the various methodologies of discourse analysis in order to understand and explain puzzles in international politics. Put simply, the use of the concept of discourse serves the purpose of understanding the social construction of reality via language. The stress here lies on the word ‘social’, which is exactly what distinguishes language from discourse. Discourse scholars do not try to show that an individual’s cognitive reality is fundamentally dependent on language and that everybody has his or her own version of reality, which is necessarily a process of individual filtering and ordering the world. In the context of IR, discourse emphasizes the social, controversial, dialectical and political aspects connected to language use.3 Language is understood as a game that embodies social conventions and follows specific rules – it is no longer depicted as a picture that simply mediates between people and the world, as a ‘do-nothing domain’ (Edwards quoted in Wetherell, 2001: 16). Since IR scholars are social scientists they are, almost by definition, preoccupied with the central question of how socially shared concepts, conventions, institutions and mutual understandings are created, sustained, challenged and transformed. Hence, they use the word ‘discourse’ deliberately in order to point at something that lies beyond the mere study of linguistic signs, text-immanent meaning-structures (the main area of interest for structural linguistics) or cognitive processes of understanding the world (the area of psychology) (Shapiro, 1989: 14). Shedding light on international processes of policy-making in the name of discourse allows understanding how social practices shape and are shaped by the history and meaning of certain objects such as chemical weapons or the ozone layer (Litfin, 1994; Price, 1995); subjects such as Cuba, the European Union or the ‘Third World’4; events such as the end of the Cold War, the Gulf War or the humanitarian intervention in Bosnia5; paradigms such as sovereignty6; international processes such as globalization7; and norms such as human rights, sustainable development or the prohibition of whaling.8 The discourse studies mentioned here revolve around the question of how rhetorical action and the dominant construction of international political reality it brings to bear makes possible and underlies political action. The concept of discourse is, thus, used to show the force of speech-acts in international power politics, the force of the better argument in attempts to discover moments of deliberation in international political interaction or the force of socially shared semantic conventions that structure discursive and other social practices. In this epistemological quest,

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almost all approaches that are to do with the value of discourse for the understanding of political processes in the international world share the meta-theoretical common-ground of constructivism (Adler, 1997; Guzzini, 2000). Despite this common ground, however, the following discussion of discourse-based research in IR will adopt Adler’s classification of constructivist scholarship as either ‘modernist linguistic’, that is, largely adhering to a positivist research programme, or critical/ postmodernist (even ‘radical’ as Adler frequently labels this constructivist research agenda) (Adler, 2002: 97). In search for the better argument – ‘arguing’ and micro-interaction discourse approaches Constructivist work that engages in the study of language, meaning and communicative action in its most ‘positivist’ form often starts from the assumption that linguistic interaction serves as an intervening variable in order to explain policy outcomes (Schimmelfennig, 2001: 48). A variable that is placed in between the interests of single actors (starting point, independent variable) and the result of a political negotiation process. It also presupposes that linguistic interaction serves the purpose of defining situations and deciding on the rules of the games for decision-making processes (Keck, 1995). This is taken to be all the more so in social situations that are characterized by uncertainty and diffuse knowledge, that is, situations in which it is difficult for actors to clearly define from the outset what is in their interest (Gehring, 1996; Risse and Ulbert, 2001: 15–16; Sebenius, 1992: 349–350). Approaches defining discourse primarily as communicative interaction start from the general assumption that international politics is an anarchical terrain and, from this, ask the following questions: Under what circumstances is communication between actors inevitable? What role do language and communication play in conflict-ridden and cooperative encounters between actors? Moving on to a less rationalist, self-interested understanding of human nature, they ask: When are actors disposed to be persuaded by (the better) argument? Why is it that in international politics certain negotiation results cannot be rationalized by looking simply at the initial situation and the material capabilities and preferences actors bring along? Adding an institutionalist layer to the enterprise, they finally inquire into the effects of normative constraints on the communicatively rational/selfish behaviour of actors. From these questions, it is obvious that certain of these language-sensitive approaches operate on the crossroads between constructivism and rationalist cooperation theory (Müller, 1994; Risse-Kappen, 1995) and

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offer an interesting discussion for the possible reconciliation between the two. Since the definition of discourse used by all of the authors quoted in this section requires the existence of argumentative rationality – that is, actors are engaging in argumentative exchange – these approaches will be labelled arguing-approaches. Proponents of this arguing-branch attempt to fill certain lacunae that they claim are not covered by rational cooperation theory. They address, for instance, the question of how a motivation for cooperation transforms into actual cooperation under conditions of anarchy and the indispensable role that language and communication occupy in this (Müller, 1994: 24–25). Furthermore, these approaches point to the limits of rational, strategic explanations of international politics, which cannot account for the endogenous change of preferences on an international, institutional level. Lynch explores the conflict-ridden relationship between the United States and China in the post-Cold War world order to underscore the theoretical value of a communicative action approach. Those analysts, he claims, who contend that the 1990s have seen a tense and potentially inimical rapport between China and the United States, miss a large part of political interaction by neglecting the fact that the two states have, despite ‘[...] the breakdown of shared norms, understandings and expectations about their relationship in the 1990s’ (Lynch, 2002: 189) upheld a constant practice of communicative engagement. As such, they created and maintained a thin common-ground of shared meaning and stable, institutionalized bilateral relations. Relations that were not so much following a logic of consequences and designed at formulating preferences and exerting strategic power but that aimed at achieving ‘[...] common interpretations and mutual expectations’ (Lynch, 2002: 190). While early advances of this branch of constructivism were mainly concerned with introducing the value of language and communication into explanations for international cooperation under anarchy, later approaches started from the assumption that communication is a fundamental and decisive moment in international politics and started to refine their emphasis on communicative action by introducing the normative dimension of Habermas’ discourse theory to the field. They widened the conceptual space by sharpening up notions of communicative behaviour along the arguing-bargaining axis. While early modernist linguistic constructivists adopted the rather neutral speech-act approaches of Austin and Searle and the argumentation analytical approach of Elster (Elster, 1991; Elster, 1998), the critical, normative dimension of Habermas allowed the formulation of an abstract

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ideal – the ideal speech-situation – against which to measure real-time communicative action.9 Properties of a situational framework that favour communicatively rational behaviour are identified and then tested against individual communicative events. The framework conditions of the empirical event under scrutiny are weighted against the conditions specified in the abstract ideal. The communicative behaviour of the interlocutors is taken as evidencing either self-interested or discursively rational (i.e. open to other’s arguments, willing to alter ones preferences and perceptions, ready to argue for communal causes) behaviour (Johnstone, 1991; Johnstone, 2003; Lynch, 2000; Lynch, 2002). Habermas’ notion of discourse, in fact, relates only to the latter quality of communication. Agents, structures and speaking practice in arguing-approaches Modernist linguistic constructivists concede that the interaction of agents simultaneously influences the context in which they are operating. Nevertheless, they investigate processes of political action considered relatively stable and narrow in their contextual features (i.e. international negotiations) and concentrate on the various logics of action that agents pursue in reaching political agreement. What might be said of all of the approaches mentioned here is that they can be considered as pragmatic approaches that focus on the ‘study of linguistic communication in context’ (Blum-Kulka, 1997: 38). That is to say, they focus on discourse as language use and communication rather than on discourses as larger systems of ideas, culture and meaning predisposing linguistic interaction. A study of linguistic interaction between agents is considered to lay open the intentions of actors. Certain speech-acts valued as directed towards collectivities refer to commonly accepted norms, to common sense or highly appreciated knowledge resources while others qualify as profit maximizing and utilitarian. Language, therefore, evidences primarily the logic that actors follow while engaging in political negotiations or international public discourse. Arguingscholars might, therefore, also be labelled ‘intentionalists’ (Cobb, 1994: 134). Modernist versions of linguistic constructivism do, in fact, place the speaking subject in an environment that comprises certain rules and ‘cultural scripts’. Nevertheless, they self-confidently address their uneasiness about the ontological middle-ground they claim for themselves, as posited in between individualism and structuralism (Risse, 2002a: 597, 599). And, at the end of the day, although emphasizing the ‘neither-nor’, they are taking sides. Neta Crawford’s latest book, Argument and Change

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in World Politics, exemplifies this tendency (Crawford, 2002). Although she adheres to a perspective which sees actors as striving for persuasion, using all sorts of different argumentation types (practical/instrumental, scientific, ethical, identity), her analytical framework posits that ‘[...] the contexts of arguments (the who, when, why and where) affects their persuasiveness’ (Crawford, 2002: 78). She then moves on to give certain features that characterize a ‘good’ argument in a specific context: in trying to make their arguments resonate with the audience’s expectations, speakers may either include ‘emotional appeals’, symbolic analogies or use ‘vertical logic’ (Crawford, 2002: 78). They may attempt to convince the audience of certain cause-and-effect relationships (scientific argument) or they may use the supposed identity of the audience as a reference object such as in ‘We as vegetarians should also not wear leather shoes.’ Thus, even though they acknowledge the constraining dimensions of intersubjectivity, modernist linguistic constructivists still place the speaking subject at the centre of the investigation of discursive processes and communicative exchange when they assert that actors, in fact, have the possibility to choose between different modes of social interaction (Risse, 2002a: 602). Text and context in the analysis of argumentative exchange Discursive interaction is seen here as verbal or written communication that is largely confined to a clear-cut communicative situation (a conference, a negotiation series, an organizational debate) and, often, also limited to a specific issue-area. Therefore, the notion of context these approaches display is rather narrow in that it basically focuses on the institutional/organizational context. It is asserted that certain contextual features encourage communicative rational behaviour or ‘arguing’ while others compel actors to revert to bargaining strategies. Risse and others, for instance, assume that agenda-setting phases and early phases in multilateral negotiations are much more favourable to argumentation and persuasion than later stages at which, due to time pressure in decision-making, participants may be more likely to bargain (Risse, 2002b: 265; Ulbert et al., 2004: 33). Similarly, they assume that actors who are materially weak can engage in moral persuasion more successfully in these early stages of negotiations (such as small states and non-state actors) or in cases where uncertainty of state actors is high. Checkel, however, asserts that there are specific settings, such as ‘less politicized and more insulated settings’ which facilitate persuasion and deliberation rather than coercion and bargaining (Checkel, 1999: 550). The expected result of analysing these argumentations lies

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in reaching a classification of arguments (along the axis of bargaining and arguing), not as a clear-cut differentiation but rather as a ‘more or less’ of arguing and bargaining. Discourse, furthermore, is considered to be linguistic interaction of a certain quality, as, for instance, with Saretzki who differentiates between different modes of communication: discourse (which in his view is cooperative), debate (which is competitive) and dispute (whose principal feature is confrontation) (Saretzki, 1996: 27). It should be clear from the preceding paragraphs that arguing-scholars in IR do not conceive of linguistic interaction as constantly producing and reproducing (material) reality and that they do not see all text and talk as necessarily altering the contexts and situations in which agents interact. Rather, discourse and a certain quality and function attached to linguistic interaction is but one among different modes of social interaction.10 Hence, discourse is mainly seen as a prerequisite for establishing common lifeworlds and shared rules of the game so that, on the basis of these collective understandings, other modes of interaction (utility-maximization) can be pursued by actors.11 Discursive action, furthermore, is tied to specific situations, such as situations with very little knowledge and high degrees of uncertainty, in which communicative rationality is a necessary logic of action for the agents trying to find out what really is in their interest in the first place. ‘Communicative engagement’ (Lynch, 2002) comes in at specific points such as when strong international norms are breaking down or are seen as increasingly contested or, generally, when actors start a dialogical process of exchanging arguments in order to find solutions for critical situations that make cooperative action necessary (Lynch, 2002: 190). Power, inclusion and exclusion in the study of communicative interaction Approaches belonging to the arguing faction investigate speech-acts and want to find out why certain actors succeed in changing other actors’ principled beliefs by strategies of persuasion. Although incorporating the structural constraints that specific norms, ideas and identities impose on actors, they largely treat these constraints as discursive resources that can be intentionally put to use in order to further individual and collective interests. In analogy to what has been argued above, it can be stated that the notions of power and influence arguingapproaches investigate are located on an agent or personal level and can be summarized as the ‘power of the better argument’. The power of the better argument refers to linguistic action which, rather than coercing other actors into a specific agreement, constructs problems

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and solutions in such a manner that other actors can agree to them voluntarily (Johnstone, 2003; Risse, 2002a: 614). However, from the existing arguing-literature in IR, it appears that arguing-scholars are mainly interested in the inside, that is, in processes of argumentation that are taking place among a limited number of actors, focus on a specific issue-area and involve certain amounts of (consensual or disputed) knowledge. They rarely address the outside, that is, to quote Foucault, the ‘principles of reduction’ that allow consensus-oriented communicative behaviour in the first place. Actors that have not found their way to the negotiation table or the political (decision-making) forum, that is, that have been ‘organised out’ of the political process to use the well-known expression of Schattschneider (Schattschneider, 1975: 69), topics that have not been included on the agenda from the outset, knowledge resources that are considered as bearing little legitimacy, such issues of exclusion do not figure prominently in arguing-approaches investigating communicative action. Much of the logic of arguing rests on the normative presumption that discourse is a process devoid of power relations, immediate self-interest and egoistic short-term goals. Therefore, arguing-scholars are explicitly looking for situations in which agents at least appear to be on an equal footing (regardless of the capabilities they have at hand), for example, situations that are characterized by little knowledge of the others’ preferences and identities, by sparse knowledge about the situation or the issue-area and by conflicts over values rather than distributive problems (Risse, 2003: 110; Risse and Sikkink, 1999: 7; Schimmelfennig, 1997: 222, 224). Once these uncertainties become more concrete, once a common lifeworld, a set of values or definition of the issues at stake has been agreed upon, power asymmetries inside the social situation can come into play (Saretzki, 1996: 37). In cases where modernist linguistic constructivists evoke the issue of exclusion (of participants, knowledge resources, worldviews, specific frames), it is mostly related to the situational framework in which processes of communication and decision-making take place (Schimmelfennig, 2001: 66). This seems to be a logical consequence of their analytical focus on discourse as communicative action and on context as a clear-cut precisely delineated communicative situation, represented by an institutional/organizational framework. In modernist versions of linguistic constructivism, thus, the process of establishing a common lifeworld, of creating new norms and meanings and of finding commonly accepted versions of reality occupies a central role. Discourse as a concept comes in to grasp the social dynamics and the argumentative moves of political decision-making processes.

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The productive forces of communication – the meaning making – and dynamics of discursive interaction are emphasized. Process tracing of communicative practices as one methodological facet is of major importance here. However, within these approaches there is, to date, little space for a discussion of the exclusionary dimensions of social (i.e. communicative) interaction, be that the exclusionary dimensions of certain meaning-structures, or the exclusionary effects of the institutional framework. What is more, there is little interest in the larger meaning-conventions that foreground and ‘predispose’ the discursive event (negotiation, conference, diplomatic encounter, policy-making process in general) that is under scrutiny. Linguistic interaction, finally, is seen as only one layer of the political process and communication as one variable among others – argumentation is only one among a range of strategies in social interaction. The productive power of meaning-structures – macro-structural discourse approaches in International Relations In the following discussion of how more critical, poststructuralist strands of constructivism have made use of the concept of discourse, it will become evident that their engagement with discourse as ‘meaning-structure’ barely resembles the pragmatic, largely intentionalist research tradition of communicative action. Reviewing postmodernist and poststructuralist thinking in IR evidences, as Adler observes, that almost all of these approaches to some extent or another grant a central position to discourse as both ontological and epistemological terrain (Adler, 2002: 98). They might therefore be seen as true proponents of ‘thick constructivism’ (Kratochwil, 2001). Seeing discourse as an all-embracing meaning-structure or ‘narrative’ implies that all international social reality is constituted, reproduced and transformed through language and social practices (i.e. discourse) and discourse is constituted by linguistic and social practices. Since all of the authors cited in this section share an understanding of discourse as a structure of meaning or ‘narrative’, this class of discourse approaches will be labelled structural approaches. Any attempt to study social reality in international politics therefore cannot deny the primacy of language, symbols, metaphors, and so on. Reality is embodied in language, in text and talk, and it is endlessly and continuously reproduced and changed through communication, writing, photography, advertisements, and so on. This ontological principle brings with it the epistemological consequence that an analysis of the world is necessarily an analysis of text, or language in its broadest sense.

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It is implied here that there is no external, objective con-text outside the text, which we could refer to, but that we can grasp meaning only through reference to and delineation from other elements in the same textual field. The existence of binary oppositions, such as self/other, civilized/barbarian, developed/underdeveloped, male/female, natural/ unnatural, democratic/undemocratic is central to this broad notion of discourse, since these oppositions draw borders, exclude and establish identities and beliefs. It is asserted that [...] the non-discursive is not opposite to the discursive as if one were dealing with two different planes because there is nothing societal that is determined outside the discursive. History and society are therefore an unfinished text. (Laclau, 1981: 176) This is not to say that there is no material (touchable and observable) reality outside language – rather, it can be assumed that any interpretation of this reality is inextricably bound ‘to the discourse within which it is located’ (Doty, 1996: 5). Tangible objects and observable events – such as a flood or a pigeon – all obtain their meaning through discourse and through a specific context in which they are put: the flood as a natural disaster resulting from the straightening of rivers or as a sign of the wrath of God, the pigeon as a plague or as a symbol for peace (as ‘dove’). This suspension of the dichotomy between discursive and non-discursive can be found in most of the critical, postmodernist discourse-thinkers in IR (Campbell, 1998: 6; Der Derian, 1987; Diez, 2001; Doty, 1996; Walker, 1993). Critical, poststructuralist constructivists are proponents of a worldview that conceives of the world as a ‘narrative’ – this does not imply that everything is invented or fiction, but rather that there is an infinite number of narratives on the same topic, concept, or historical event. In analogy to seeing the world as a narrative, poststructuralist constructivists often employ unusual vocabularies. Hence, they resist the disciplinary force of essentialist accounts of world politics in that they provoke a disruption of traditions, schools, disciplines and universalisms, through their unconventional language. They write the discipline as if it were a narrative: The possible disappearance of sovereignty can herald the very appearance of our possible futures. Goodbye sovereignty. Hello globalization, or cosmopolitanism, or humanity as such, or human/global

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security, or global human rights, or any number of similar worlds in the making. (Walker, 2002: 9) The main epistemological thrust of scholars of the structural tradition, therefore, rests in their final conclusion that it is not possible to distinguish ‘true’ and ‘false’ discourses at all and that one therefore abandons the search for intersubjectively plausible ‘truth’ and seemingly objective knowledge, in favour of presenting reality as always contested, contingent and the result of power struggles for hegemonic interpretations of this same reality. Agents, structure and speaking practice Those approaches to discourse in IR that pertain to the category of critical discursive constructivism share various characteristics that allow them to be classified as studying discourses as systems of meaning (Phillips and Jorgensen, 2002: 12) or as a ‘specific ensemble of ideas, concepts, and categorizations’ (Hajer, 1995: 44). The definitions these discourse proponents advance reveal that discourse is seen as an abstract entity that accommodates and bridges other central concepts in reflexive approaches to international politics such as culture, ideas, representation and knowledge. Discourses are defined as shared knowledge (Wendt, 1999: 142), ideational structures (Price and ReusSmit, 1998: 282) or a structured, relational totality (Doty, 1996: 5), and they do not necessarily have to refer to language or linguistic practice. International politics is pictured here as a competition between various discourses and the perceptions of reality they transport. These discourses are reflected in foreign policy speech-acts, they are ‘abused’ in order to construct dichotomies of ‘self and other’ or in order to legitimize particular political actions. Discourse is the underlying or vaulting structure that makes these things possible, thinkable and intelligible in the first place. Certain ways of speaking about an issue render certain actions more logical and plausible and exclude others. Jacqueline Berman has demonstrated, by using a Foucauldian lens on European discourses about trafficking in women, that the prevalent construction of the problem within the frame of a discourse on ‘criminalization’ and the trafficking of women from Eastern Europe as ‘new white slave trade’, indeed, allowed European Union stakeholders to use or abuse that particular discourse and its meaning-structures in order to intensify border controls and to tighten immigration laws. The discourse on trafficking, according to Berman, develops its

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own ‘discursive logic’, wherein ‘the most appropriate response to the problem becomes criminalization to prevent these gangs from violating the sovereign bodies of these women and the sovereign spaces of the nation-state’ (Berman, 2003: 41). Her study exemplifies, thus, how discourses eventually develop a life of their own, which negatively affects and stigmatizes certain people while simultaneously making it very difficult for policy-makers to think and speak outside the boundaries of these discourses. Authors in the structural tradition generally do not exclude agents from their analysis, assuming in a Foucauldian style that agents are needed in order to produce, reproduce and resist dominant discourses. Singular speech-acts are interpreted either as being a particular instantiation of a much larger structure that naturalizes a specific interpretation of reality or as events of discursive resistance to this naturalizing scheme. Context, thus, is seen here as a vast semantic universe not a specific situational context or intersubjective setting in which the speaking is performed. Although it is sometimes claimed by scholars following this tradition that their focusing on discourse entails emphasizing the discursive practice of speaking, this focus does not imply that agents are greatly valued here. Rather, agents are conceptualized as articulators of larger systems of representation and it is these structures of meaning that are of the greatest interest. Actors are depicted as engaged in a struggle over the fixation of meaning – however, they are speaking from subject positions that have been ‘discursively produced’ (Diez, 2001: 17). Text and context Several implications come along with these very broad notions of discourse. While arguing-proponents confine their empirical interest to small, clearly demarcated communicative events, the properties of the setting and the quality of the argumentative exchange, scholars in the structural tradition usually collect their evidence from a wide range of texts and events, covering larger historical spans. Often, their starting point is early modernist thinking, and they attempt to destruct the linearities and discursive logics that follow from this starting point. In his well-known book On Diplomacy, Der Derian re-constructs the modern notion of diplomacy coming full-circle from Augustine to the diplomatic culture of Charlemagne to today’s techno-diplomacy. Der Derian conceives of his historiographic account of diplomacy as ‘[...] an interpretation of how the power of diplomacy, in the absence of sovereign power, constituted and was sustained by a discursive practice, the diplomatic culture’ (Der Derian, 1987: 4). Since discourse is seen more

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as the rules of the game, the surrounding structure that constrains speaking and thinking, rather than the pragmatic process by which actors meaningfully communicate, the notion of context adopted is very large. Discourses as coherent aggregations of single speech-acts are presented in a rather detached manner, as floating ideas existing at specific points in time and being both condition and resource for political action. Weldes and Saco’s analysis of the discursive constructions making possible US state action after the placing of Soviet missiles on the island of Cuba in 1952 entails a rather loose reconstruction of speech-acts uttered by ‘[...] those individuals who inhabit the offices of the US state’ (Weldes and Saco, 1996: 377). Each single utterance is considered as an element of a much larger, historically grown body, consisting of texts, terms, representations, objects and events. Each singular speech-act is seen as carrying an ideological history – individual speech-acts are only valuable in that they are expressions of political and historical structures and social power relations. Power and exclusion in structural approaches to discourse Structural approaches position the power of discourse at the centre of investigation. Concerning possible discursive constructions of a European polity at the turn of the twenty-first century, Diez argues that ‘[t]he power of discourse is that it structures our conceptualizations of European governance to some extent, rather than us simply employing a certain language to further our cause’ (Diez, 1999: 605). Waever falls into line with this argument, contending that ‘structures within discourse condition possible policies’ (Waever, 1998: 109). Large, compelling discursive formations limit the ways in which individual speakers can meaningfully relate to reality and construct political issues: ‘A discourse delineates the terms of intelligibility whereby a particular “reality” can be known and acted upon’ (Doty, 1996: 5). Diez argues in the same vein when he asserts that the struggle to impose meaning on ‘Europe’ is not only a political query but also a competition between ‘different discourses that enable actors to articulate their positions’ (Diez, 1999: 603). While arguing-scholars limit their empirical attention in most cases to clear-cut situations in which a range of actors with diverging interests are struggling to find a compromise on a specific issue, advocates of structural discourse approaches in IR are concerned not so much with the clash of individual (national, state) interests but rather with the conflict between diverse and oppositional meanings that are part of large discourses as systems of representation. Following the logic of critical inquiry, their case selection is very much determined by supposed inequalities, stigmatizations and silencing in the issue-area

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under scrutiny. Hence, their empirical examples often amount to single case-narratives which are then reconstructed using critical historical methods and some kind of macro-historical process tracing. Very often, however, empirical cases do not entail certain systematic analytical steps (Abbott, 1992: 75) but must rather confront the criticism of simply ‘telling another story’. In the light of the rather modest explanatory claims made by proponents of structural discourse approaches, disapproval of their interpretative methods by their modernist, still partly positivist colleagues must be seen as causing the former little trouble. Adhering to Foucault’s well-known division between ‘archaeology’ and ‘genealogy’ (Foucault, 1992b; Foucault, 2003: 38–44), it is possible to single out two broad research interests in the study of meaning-structures and narratives. On the one hand, critical discursive constructivists are concerned with showing how certain dominant perspectives have enabled or restrained political action. For instance, Price’s genealogy of the chemical weapons taboo intends to demonstrate how it could be ‘that the fear of retaliation against chemical weapons was any more prohibitive than the fear of other enormously destructive forms of warfare, such as strategic bombing or submarine attacks on civilian ships’ (Price, 1995: 77). The genealogical approach, although critical in the sense that it challenges the naturalization of identities and power relations, is necessarily retrospective in its aim to reconstruct historical processes. Doty’s discussion of the practices of imperialism and the imposition of identity on (and silencing of) Southern peoples by the Northern imperial powers reveals the same concern. By showing how representational practices are used to legitimize inhumane and degrading behaviour towards uncivilized populations of the Third World, she addresses the explicitly ethical dimension of ‘making meaning and an ethical imperative that is incumbent upon those who toil in the construction of structures of meaning’ (Doty, 1996: 168). On the archaeological side, which is essentially a critical striving for ‘unearthing’ excluded, marginalized voices, perspectives and legitimate speaking-subjects, scholars have pursued the empirical goal to identify dominant or hegemonic interpretations attached to a specific ‘essentially contested concept’. And, from there, they seek to demonstrate that there is a friction between several interpretations of the same concept. Some of these authors can be characterized as retrospective historiographers, among them Ashley, Walker or Der Derian. They restrict themselves to fracturing historical lines and seemingly essentialist accounts of IR.12 Other archaeologists subscribe to the critical, emancipatory school, much inspired by Cox, Gramsci, Laclau and Mouffe, and Bourdieu.13 They are investigating dominant (hegemonic) discourses

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not so much with a backward looking view, but rather by following a prospective, future-oriented programme that focuses on a specific contemporary political issue with its features of exclusion, marginalization and stigmatization. They ultimately aim at outlining possibilities for future transformation (Diez, 1998; Diez, 1999). Diez, for instance, concentrates on competing discourses in the conceptualization of European governance, in which he sees the nationstate as a contested space (Diez, 2001: 12). In this undertaking, he aims at detaching discourses from nation-state actors and observes similar and dissimilar conceptualizations of Europe across a range of actors, institutions and situations, thus avoiding the ‘national coherence trap’ and at the same time ‘widening the range of policy options’ (Diez, 2001: 17). The aim of tracing back and identifying both competing discourses and hegemonic practices that attempt to dominate the field is certainly not to discover a ‘true’ interpretation or a core ‘meaning’. On the contrary, it is intended to open up the field to alternative, dissenting concepts, definitions and interpretations that make dominant perspectives (both in academia and in political discourse) appear much more contested and the ‘discursive universe [...] more manifold’ (Diez, 2001: 7) than they might seem at first sight. Diez’ viewpoint appears to be rather prospective in the sense that it points to possibilities of articulating ‘European governance’ in a different manner (such as a network-like conceptualization of European governance), if the ‘democratic deficit’ problem of the EU is to be tackled and if the EU is to appear to its citizens as more than just a ‘monster bureaucracy’ (Diez, 1999: 609, 606). Table 2.1 summarizes the main differences between arguing and structural approaches, particularly with regards to their perspectives on power and exclusion. Table 2.1 Typology of IR discourse approaches Arguing approaches

Structural approaches

Exclusion/Inclusion

Institutional framework effects exclusion; situational

Meaning-structures effect exclusion; structural

Power

‘Subjects make meaning’ Power in discourse

‘Meaning makes subjects’ Power of discourse

Process

Synchronic micro-interactional

Diachronic macro-historical

Communicative practice

Central to analysis

Marginal to analysis

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3 Discursive Transformation and the Role of Institutions

At the heart of the empirical case study discussed in Part II of this book lies an international treaty-making process over the course of which a traditional perspective on the child as essentially innocent, vulnerable and passive was dramatically transformed. During the negotiations to the UN Convention on the Rights of the Child, governmental, intergovernmental and non-state actors alike reproduced images of the child that had been dominant in international politics in the twentieth century. At the same time, they added utterly new dimensions to the identity of the child – dimensions which confounded and challenged conventional ways of perceiving children and acting towards them. Today, the document is seen as revolutionizing the understanding of the child and its rights in international politics. As will become evident from the case study, the process through which the notion of childhood in international politics was reformulated and, ultimately, modernized was characterized by various dimensions of power and exclusion that both constrained actors’ discursive practices and enabled a shift in perspective. In the following sections, the argument will be established that, in order to fully understand how such a transformation of powerful meaning-conventions can come about, central insights from both strands of discourse thought in IR have to be combined: claims that allow power and exclusionary dimensions to be addressed and connected, on both an agent and a structural level. As seen in Chapter 2, power and exclusion lie at the heart of theoretical and empirical explorations of discourse. The first part of this chapter will further refine this argument by using a distinction between two dimensions of discursive power – power in discourse and power of discourse – and will demonstrate why both perspectives are necessary in order to understand the relationship 46

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between transformation and exclusion. Second, it will be shown why, at present, arguing- and structural approaches are insufficient to understand discursive change. Two analytical challenges are identified – the investigation of process and exclusion – that in one way or another confront discourse scholars of both branches as ‘stumbling-blocs’ in empirical discourse analysis. In a third step, the chapter introduces several multidimensional power theories whose theoretical frameworks aim to capture both power of discourse and power in discourse, even though these theories do not specifically reflect on communication and discourse. Finally, the Vienna School of Critical Discourse Analysis (CDA) is introduced as a most suitable methodological toolkit for the envisaged multidimensional power analysis. It is maintained that CDA’s analytical categories and methodologies are exceptionally rewarding with regards to the central aim of combining the analysis of power manifested in communicative practices (power in discourse) with the structural influence of meaning-conventions (power of discourse).

3.1

Discourse and transformation

Anyone who is interested in the transformation of powerful narratives usually embraces a critical stance towards social inquiry. In such a critical perspective on change, transformation is both welcomed as challenging forceful social conventions and eyed with suspicion – since change is also an effect of power asymmetries and, again, brings with it processes of silencing and exclusion (Price and Reus-Smit, 1998: 262). In what follows, the possibilities of both arguing- and structural approaches to understand moments of transformation in discourse will be elaborated on. The discussion supports Price and Reus-Smit’s argument that constructivist thinking revolving around the notion of discourse very often has difficulties in translating some of the most basic principles underlying the critical interest in change and ‘crisis’1 (Price and ReusSmit, 1998: 271). These principles are the juxtaposition of movement (change) and order (stasis) and the emphasis of the issue of exclusion. In its focus on how a specific norm or ideational structure mattered in a specific event, Price and Reus-Smit claim, constructivism neglects a critical ‘ethos and purpose’ that would allow to incorporote issues of transformation, emancipation and marginalization into these analyses (Price and Reus-Smit, 1998: 285). The two facets of discourse underlined above – process and exclusion – occupy a pivotal place in critical theorists’ reflections on change: on the one hand, the contingent (though not completely fluctuating) process-character of discourse

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without which movement would not be conceivable; on the other, the exclusionary dimension of discourse without which agreement on a common view of what is perceived to be ‘natural’ or ordinary could not be reached. Placing the agency-structure divide in discourse thought in a more critical context, it appears that the issue of movement versus order occupies a central role in the analysis of discursive transformation. Thus, agent-based discourse thinking comprises all those approaches whose main research interest is the transformative potential within actors’ communicative practices and, as such, the movement that necessarily follows from social interaction. In contrast to this, structural approaches’ emphasis on the structures of meaning that surround communicative interaction allows for the ordering function of discourse to be addressed, inasmuch as they account for the larger narratives that pre-structure social encounters, their disciplinary force and their enduring validity. To critically investigate processes of transformation, then, requires both facets of discourse thinking: the meaning- conventions that underlie specific social situations (order), and the dynamics of social situations within which these meaning-conventions are both sustained and challenged, in sum the ‘dynamics of change as well as the rhythms of stasis’ (Price and Reus-Smit, 1998: 288). Process and change in arguing- and structural approaches Structural approaches contribute to our understanding of transformation above all by giving us the theoretical conceptions with which to circumscribe discursive orders. Terms such as ‘nodal-points’ (Diez, 1999; Diez, 2001; Howarth and Stavrakakis, 2000; Laclau and Mouffe, 2001) or ‘discursive formations’ (Kratochwil, 2002) enhance our ability to cluster the infinite universe of utterances, ideas, worldviews and knowledge into particular, historically situated and aggregated frames. However, the conceptions that have just been named remain anchored in rather detached accounts of broad, socially shared understandings without specifying how these understandings have been used as resources in political interaction. This tendency is especially prevalent in a number of empirical studies trying to uncover truly ‘European’ debates (Diez, 1999; Diez, 2001; Larsen, 1997; Larsen, 1999; Waever, 1998). Empirical evidence in many studies undertaken to (re)construct dominant or competing discourses about ‘Europe’ and the ‘European Union’ appears to be taken from a variety of institutional contexts and document types. These individual speech-acts are then accumulated into a single picture, without, however, itemizing the social situation

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in which they were used as social commodities. Changes in discourses can thus only be understood in their structural nature (and much akin to the Foucauldian notion of change) as the supplanting of one large discursive formation by another. As such, scholars who understand discourse primarily as structures of meaning remain unable to associate these changes with specific instances of discursive ‘action’. While structuralists are in the position to uncover the dissolution of one structure into another, they do not have the analytical instruments to explain that change. With their macro-historical view on processes, most of the structural approaches summarized in Chapter 2 have focused their attention on the specific results produced by discourse and their impact on the perception of reality by a large group of international actors. The productive forces of discourse are clearly favoured over the openendedness of meaning-negotiation (for similar criticisms see: Doty, 1993; Milliken, 1999; Payne, 2001). This focus makes it difficult to account for processes of (linguistic and social) interaction in which identities and interests are not yet fixed and undisputed but rather subject to renegotiation. An emphasis on dominant narratives in international politics and the discursive reconstruction of the various stigmatizations, power relations and identities they produce and reproduce is certainly a critical endeavour in itself. Nevertheless, there are some who openly admit that they neglected the processes by which these dominant representations came into being and did not pay sufficient attention to alternative or contesting narratives that were silenced in this process (Doty, 1996: 163). Some empirical analyses of structures of meaning, thus, provide highly realist pictures of political action, since their textual evidence underlines the fact that the power of discourse is, essentially, the discourse of the powerful (Weldes and Saco, 1996). These authors fall into a kind of tautological realist ‘trap’, inasmuch as their analysis confirms that the speech-acts and the discursive construction of reality of the actors they have chosen as ‘proof’ for dominant discourses are, almost by nature of their privileged position in the political system (national, international), forceful. Accordingly, analysis does not tell us very much about alternative constructions of reality they might be in conflict with.2 Consequently, Fierke’s critique appears to be justified that there ‘has been more emphasis on how leaders rationally manipulate meaning or impose conditions for socialization than on the dependence of these leaders on already existing meanings’ (Fierke, 2002: 348). This imbalance in critical studies of discursive power suggests a need for analyses of processes of meaning-negotiations in which the legitimacy

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of speech-acts derives from other sources than just the chief position of the speaker in the corresponding political structure. The transformation of powerful meaning-conventions such as the meaning attached to the ‘global child’, though, can only be fully understood by combining both the structural as well as the arguing-version of process analysis. A macro-historical, diachronical analysis that attempts to recapitulate both the emergence and historical transformation of powerful meaning-conventions has to be complemented by a study of micro-situational processes during which actors actively contribute to the transformation of meaning-conventions. In order to grasp the openendedness of discourse without which moments of movement and, ultimately, transformation could not be fathomed, the core conceptions WITHIN structural approaches such as ‘floating signifiers’ (Doty, 1996: 5; Howarth and Stavrakakis, 2000: 15), ‘essentially contested concepts’ or ‘discursive milling mass’ (Jäger, 1993; Jäger, 1999) only partially help us in our social inquiry to comprehend processes of meaning-negotiation. These concepts may provide us with illustrative terms to grasp the contingent, all-pervasive totality of discourse, but they do not tell us anything about how individuals enact these larger structures in their everyday talk, how they are able to connect them to new situations, different contexts and how they are able to slowly transform social conventions (institutions) through their communicative practice. This perspective on processes of real-time communication is provided by arguing-approaches. Through dense, synchronical, micro-interactional analysis, arguing-approaches are in a position to demonstrate how social processes between actors in a specific discursive environment both depend on certain conversational resources and socially shared rules of interaction, and, at the same time, exhibit novel ways of speaking and writing about the issues at stake. What is more, synchronical analysis of discursive events makes it possible to show that new discursive repertoires are part and parcel of only a few/several/many/all participants’ speech-acts and, as such, allows the drawing of strong conclusions as concerns the force of the transformational discourse. Hence, discovering both the innovative as well as the conventional in discursive practices is vital in order to observe and understand processes of discursive change. Exclusion and change in arguing- and structural approaches As has been posited above, in critical perspectives on discourse and power it is impossible to think about power and influence without addressing exclusion. Thus, politics in general – and international

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politics in particular – are fundamentally about drawing boundaries as relations of inside/outside. In critical IR approaches to discourse, exclusion is a central feature of discourse, for ‘the limits and boundaries of a particular discourse are established by the exclusion of a discursive exteriority that threatens the discourse in question. The exclusion of such antagonistic force is the sine qua non of hegemonic practices of articulation’ (Torfing, 1999: 43).3 An analysis of discursive transformation is not possible without studying inclusion and exclusion: to study, on the one hand, how the inclusion or exclusion of specific discursive agents made possible the modification of meaning-conventions and to understand, on the other, the origins of these meaning-conventions and the ways in which they exclude/include specific versions of reality and ‘courses of action’ (Schatzki, 2002). Discursive power becomes, therefore, manifest on two levels. The level of semantics, that is the ways in which meaning-conventions exclude certain ways to think and speak about reality (power of discourse) and the level of social context, that is, the setting of the communicative event whose rules and procedures for interaction pre-structure ‘who is a legitimate actor and how such actors are entitled to behave’ (Price and Reus-Smit, 1998: 286) (power in discourse). Empirical evidence of moments of semantic and contextual exclusion, it is claimed here, requires first and foremost looking for those ‘critical historical junctures’ (Banchoff, 1999b: 186) at which it is possible to identify agents’ opportunities to renegotiate and contest meaning-conventions. A critical emphasis on exclusion, thus, necessitates highlighting the contexts and power relations out of which specific discourses or discursive changes emerge in the first place (a critique also found in: Adler, 2002; Doty, 1997; Payne, 2001; Zehfuß, 1998). Consequently, social processes during which changes in hegemonic discourses can be identified – such as the negotiation series leading to the UN Convention on the Rights of the Child and the various events that preceded and accompanied the drafting process – are of particular interest to the researcher who investigates the dynamics of discourses and the ability of actors to change the discourse in question. These ‘windows of opportunity’ or opening ‘linguistic spaces’ (Chadwick, 2000: 293) provide a basis upon which to investigate instances of power and exclusion and the struggles between conventional and innovative discourses that manifest themselves in actors’ discursive practices. A critical interest in the role of exclusion in processes of discursive transformation, therefore, requires a combination of both semantic (related to meaning) and situational exclusion. Analysing social

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interactions responsible for the emergence of new texts – such as the UN Convention on the Rights of the Child – that embody novel perspectives and claims about reality requires the researcher to pay as much attention to the narrower situational framework within which agents interact, as to take notice of the absence of specific discursive repertoires, knowledges and worldviews within this situational framework. As soon as questions of discursive dominance or hegemonic discourses are raised, it is essential to show where alternative, suppressed or competing discourses can be found and respectively, how discourse analysis might help to identify these. Factors that influence the exclusion of certain vocabularies, social practices, themes and actors from discursive events must be intimately connected to linguistic and social practices of agents and the opportunities as well as restraints they experience in a specific historical and institutional framework. Ideally, the analysis should be able to show how these two exclusionary dimensions are interrelated.

3.2

Linking power of discourse and power in discourse

During the past decade, calls for a deeper consideration of the multidimensional, ‘polymorphous’ character of power have been getting louder and more frequent (see most importantly: Barnett and Duvall, 2005a; Barnett and Duvall, 2005b; Guzzini, 1993).4 Most of these calls have argued in favour of concepts of power that address more diffuse notions of power as well as analytical frameworks that allow the ‘messy’ dynamics of intersubjective processes to be taken into account. Barnett and Duvall’s recent theory of power in international politics is based on the argument that all those who rivalled the predominant realist notion of power, understood as the power of one actor to compel another actor to do what he would otherwise not do,5 have failed to ‘develop how power is conceptualized and operates within their theories’ (Barnett and Duvall, 2005b: 41). In their suggestion to expand and deepen the conceptualization of power in International Relations, Barnett and Duvall introduce two dimensions that allow to account for diverse effects of power: the kinds of social relations through which power works (compulsory or structural) and the specificity of the social relations through which power effects are generated (direct or diffuse). Particularly with regard to more diffuse notions of power and their effects, they introduce the concept of discourse and its analysis to help ‘demonstrate how systems of knowledge and discursive practices produce subjects through social relations that

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are quite indirect, socially diffuse, and temporally distant’ (Barnett and Duvall, 2005b: 48). The most evasive dimension of their power concept – productive power – very much resembles the power theory of Foucault, since it posits that productive power is the power of ‘systems of signification and meaning’ (Barnett and Duvall, 2005b: 55). Yet, Barnett and Duvall only marginally discuss the role of language and communication in their multifaceted power analysis. While they develop their own terminology and taxonomy to address the various power dimensions, they nevertheless heavily borrow from earlier perspectives on power. As so many others before them, they draw part of their inspiration from some of the most remarkable power theories of the 1970s, formulated by Lukes, Bachrach/Baratz and Schattschneider – theories addressing social, contextual and process dimensions of the workings of power (Bachrach and Baratz, 1970; Lukes, 1974; Schattschneider, 1975). These early multidimensional power theories already took into account the dynamics of intersubjective processes and the constraining as well as enabling features of the social context within which these processes unfold. What is more, they are thus far among the very few that tried to conceptualize political power in its exclusionary dimension. For Schattschneider, ‘nearly all theories about politics have something to do with the question of who can get into the fight and who is to be excluded’ (Schattschneider, 1975: 20). They particularly asked why some actors were inside the venue and others not, how they came to define the situation, which issues they discussed and which issues were kept outside the political struggle. Their core assumption was that some political decisions are in fact ‘non-decisions’ (Bachrach and Baratz, 1977: 53); every fixation of meaning is dependent on the exclusion of an ‘outside’. Not only do these proponents of extended power theory picture political decision-making processes as processes predetermined by the exclusionary dimensions of the arena in which they take place. They furthermore emphasize power dimensions that deviate from a traditional view centred on coercive power, material resources and interpersonal relationships. These early approaches towards power and exclusion are, thus, highly relevant for the construction of an analytical framework that brings together power in discourse and power of discourse. Material power, non-decisions and agendas Two essential presuppositions that traditional realist IR power theories advance also underlie the theories of both Bachrach/Baratz and Schattschneider: the supremacy of material resources as power assets

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and the emphasis on the actors’ desire to have their interests fulfilled. However, they approach the issue from the reverse angle, in an attempt to depict the political decision-making process as a process in which minority interests or the interests of the powerless (in the sense that they are ‘poor’, without material means) necessarily fail to pass institutional barriers or ‘filters’ that do not grant access to those views and interests. Thus, their two-dimensional understanding of power emphasizes that power analysis has to look beyond intra-personal relations of power and coercion and incorporate the norms and rules that precondition which issues and opinions can be addressed and are considered legitimate in a given social context. The play of power, thus, relates not only to the potential to threaten and coerce, but also to struggles over institutional design and political agenda (Bachrach and Baratz, 1977: 46; Schattschneider, 1975: 69). Analytical interest shifts from an identification of who is powerful to an investigation of why certain actors are better positioned in an institutional framework than others. Hence, what these authors make us aware of is the strong exclusionary dimension of political processes and the fact that every decision-making is based on ‘non-decisions’ and that no consensus would be possible without shunning those views or voices that greatly threaten this consensus. Joining this understanding of power in politics to the discourse-terminology developed earlier, Bachrach and Baratz are interested in the ways in which actors inside a specific social situation can exert power in discourse by imposing their agenda-setting priorities and their understandings of reality on weaker actors. Lukes, on the other hand, diverges from power relations in which individuals realize their will against the resistance of others and adopts an understanding of power that stresses the necessity to take into account the influence of ‘collective forces and social arrangements’ in analysing power relations (Lukes, 1974: 22). Although he acknowledges the value of seeing politics as being both about decisions and nondecisions, he criticizes Bachrach and Baratz for adhering to a behavioural, actor-based notion of power. Consequently, Lukes introduces the well-known third dimension of power that stresses the force of social arrangements and the institutional framework that contribute to the selection and exclusion of specific topics, worldviews, participants or modes of speaking. Lukes, finally, paves the way for a perspective on power that accommodates the constraining influence of the situational, contextual framework within which political struggles take place. If one adds a decisively discursive layer to this power theory, Lukes highlights how the institutional framework within which communication takes

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place favours some actors over others and, as such, pre-structures who can exert power in discourse and who cannot. The control over agendas and decision-making is thus considered one of the major dimensions of exerting power in political life. The subjugation of minority voices originates in attempts to distort and frame the issues that are decided according to one’s goals, as well as in the limitation of legitimate participants in the discussion. Politics is essentially characterized as a struggle over access to and influence in communication. Although not explicitly incorporating the distortion of communication into his approach to power in politics, Lukes’ third dimension takes into account precisely this control over agenda and decision-making and hints at the discursive dimension of power. Addressing the power struggles that accompany agenda-setting and communicative interaction as an essential aspect of the third dimension also implies that political decisionmaking processes must be seen as processes of meaning-construction that exclude certain modes of speaking, issues and speakers. Despite the fact that Lukes stops short of addressing the actual communicative processes that take place once the agenda has been set and the rules for decisionmaking have been made, he grants a decisive position to communicative interaction, the force of speech-acts, the legitimacy of speakers and the ‘power of language’ in the endeavour to develop alternative conceptualizations of power politics. Here, power is an effect of exclusionary social practices and the limited accessibility of social structures. Most importantly, what Lukes and Schattschneider reveal is that the most effective workings of power do not find their expression in conflict situations over policy outcomes (such as in realist notions of power), but become particularly obvious in situations in which no conflict arises (Lukes, 1974: 23), precisely since the heated subjects have already been ‘organised out’ (Schattschneider, 1975: 69) of the political arena. Schattschneider’ theory of power in politics emphasizes that it is not only the issues and definitions that may fall prey to the natural bias of political organization, but that it is also potential conflicts that are circumvented by actors who are capable of mobilizing this bias (Schattschneider, 1975: 64). Every consensus, therefore, must be seen to some extent as resting upon the exclusion of potentially threatening dissenting voices and controversial subjects.6 Power and exclusion, thus, are intimately tied to the institutional framework within which policy-making takes place. It is this dimension of political discourse in particular that needs to be incorporated into a discourse analysis which seeks to explain discursive transformation and which aims to combine an analysis of power in discourse and power of discourse.

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3.3 Institutions and their value for combining power of discourse and power in discourse The term ‘institution’ remains if not an ‘essentially contested concept’ (Haas and Haas, 2002: 580), then, at least, a very vague concept in social science (DiMaggio and Powell, 1991: 1).7 And, indeed, if one looks at the connotations in which the term institution has been used in social inquiry, it is obvious that it embodies a whole range of social structures: from concrete venues for social interaction such as business organizations, churches, universities, hospitals or sport centres to the specific interactional rules, rituals or conventions that structure social life in these venues and, finally, much broader social conventions that are attached to and configure large social/societal environments (or society in general) such as marriage, voting or courtesy (Jepperson, 1991: 149). Nevertheless, what all of these connotations have in common is that they can be seen as some sort of ‘materialized’ social pattern (Jepperson, 1991: 145) that both restrains social interaction by imposing certain rules on the interactants and at the same time contributes to facilitating that very same interaction through their ‘routine’ character (March and Olsen, 1989: 21–26, 34–37). In this regard, institutions have become much associated with a function of ‘ordering’ social reality (March and Olsen, 1998: 946–947), with providing stable frameworks for the exchange of knowledge, arguments, and for the management of disputes (over resources, values or facts). Once learned and internalized, these rules act as ‘catechisms of expectations’ (March and Olsen, 1989: 23) and ease procedures of information exchange, decision-making, debating, giving instructions and commands, teamwork, and so on. Within this new sociological institutionalism, it is, furthermore, asserted that the preferences, interests and values of agents are not formulated outside (social) institutions but rather develop within the confines of institutions (March and Olsen, 1989: 40). As such, they serve as the principal locus for the intersubjective ‘making of’ definitions, meaning and ‘sense’. In political analysis, the term institution is said to have experienced a reawakening in the 1990s (DiMaggio and Powell, 1991: 2). More particularly in IR, the interest in the impact of institutions (identified as social norms) in shaping the behaviour of individuals has been brought to life again with the coming-into-being of regime theory during the 1970s. By the 1990s, institutions experienced another heyday when it had somehow become commonly accepted in IR theory that institutions in part shape the behaviour of individuals (Martin and Simmons,

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1998). Institutions increasingly came to be seen not so much as crafted to the demand of actors, but rather, once in place, as effectively constraining actors’ behaviour and developing their own ‘logic of appropriateness’ (March and Olsen, 1989; March and Olsen, 1998).8 Proponents of this new institutionalism argued that, instead of leaving individuals’ choices unconstrained, institutions impose on them patterns of ‘obligatory action’ (March and Olsen, 1989: 23) in that they ask ‘what is most appropriate in a given social context’ instead of ‘which alternative at my disposal is the most rewarding’. Empirical studies investigating this logic of appropriateness in IR have been conducted most prominently in the realm of human rights (Finnemore and Sikkink, 1998; Liese, 2006; Risse et al., 1999b; Risse et al., 2002; Sikkink, 2002). Institutions as conventionalized and proceduralized discourse Contemporary notions of institution in IR scholarship can be grouped in two classes and matched with the two notions of discourse identified in Chapter 2. This argument follows Haas and Haas’ conceptualization of institutions (Haas and Haas, 2002) and also adopts several of the assumptions of the ‘new institutionalism’ described above. An institution is first seen in its normative dimension as a language game that structures international relations – such as the language game of ‘global childhood’ that is characterized by specific ‘rules of the game’, norms, principled beliefs and identities. Hence, it is understood as conventionalized discourse, as ways of thinking and speaking about the world that have become widely shared and seemingly uncontested among a large group of people who occupy specific positions in this conventionalized discourse. Akin to the Foucauldian notion of discourse, a conventionalized discourse can be described as a discursive formation that constitutes social reality and underlies social action. Second, an institution is perceived, in its ‘formal’ dimension, as site and organizational structure for political decision-making (Haas and Haas, 2002: 580). In this regard an institution is conceived of as proceduralized discourse or a ‘routinised form of discourse’ (Hajer, 1995: 57). This second dimension is of particular importance to the actual manifestation of influence and exclusion in actors’ communicative practices, since these practices take place in political forums or organizational decision-making structures, where social institutions are enacted and transformed. It is through practice that both of these dimensions of institutions fuse, in that an institution ‘[...] is the mechanism through which cultural orientations are transformed into social practices. In this sense all institutions are political’ (Touraine, 1988: 40). Practice will

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be understood here as ‘organised activities’ that take place in a specific ‘social site’ (Schatzki, 2002: xi) where patterns of meaning are made sense of in small instances by individual/collective ‘translation’, or adaptation of these patterns to specific situations. Hence, a core argument of this study is that both of the dimensions of institutions specified above merge in a perspective on discourse that places discursive practices as the situation-specific enactment of social conventions in a framework of proceduralized exchange of argumentation. To employ the concept of institution in these two dimensions permits the establishment of a link between power in discourse and power of discourse. On the one hand, institutions as social conventions exert a power of discourse that prefigures social interaction. On the other, actors within proceduralized discourses are in a position to exert power in discourse and to renegotiate the very social conventions that underlie and structure their social encounters. Discursive practice in an institutional framework In the past decade it has been frequently argued in IR scholarship that an analysis of the discursive processes that reproduce or challenge dominant powerful discourses should locate discursive practices at the centre of the investigation (Cobb, 1994: 140, 144; Doty, 1997: 379; Kratochwil, 2001; Neumann, 2002). Institutionalized forums for communicative interaction in international relations such as international negotiations, conference series, treaty follow-ups, meetings of the UN Human Rights Council, global summits, World Social Forums, NGO conferences represent the visible arena for the local enactment of global historical discursive patterns, hegemonic beliefs and worldviews – ‘local’ and ‘global’ referring to contexts, not to geographical positions. By conceiving of institutions as ‘deliberating enclaves’ (Sunstein, 2001: 78) or ‘venues for argument in world politics’ (Crawford, 2002: 29) which can be visually imagined as temporal and spatial snapshots from the vast discursive universe, the researcher is in the position to trace back certain instances of meaning-making and transformation within the confines of these enclaves. As such, discursive transformation can be understood both by positioning the local event in its socio-political and historical context as well as with reference to the individual and social forces (and their power in discourse) that were standing behind these changes. Placing discursive practices as ‘speech-enacted institutions’ (Chilton, 2004: 31) at the centre of the analysis reintroduces a dimension of ‘movement’ and change to the study of social institutions as opposed to conceptions of institutions that accentuate their function of ‘ordering’ and structuring social interaction. This also falls into line with a recent

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constructivist tendency to stress agency for the study of international institutions. Not so long ago, Risse formulated a discourse-approach to institutions in IR, based on an intersubjective logic of arguing (Risse, 2002a: 600–604). Already in 1986, at a time when institutionalism was firmly anchored in regime analysis in which international organizations and institutions were perceived to be actors by themselves (Martin and Simmons, 1998: 736–738), Kratochwil and Ruggie pointed out in their seminal article on the ‘state of the art’ of international organizations that international institutions could not be analysed as structures or rules without taking into account the intersubjective quality of regimes as social norms (Kratochwil and Ruggie, 1986: 764). While the notion of regimes mostly invoked a picture of institutional constraints influencing individual actors’ profit-maximizing behaviour, Kratochwil and Ruggie’s critique targeted the ignored role of subjects in creating these institutions – institutions of an inherently social nature. Risse has taken up this postulation, arguing that sociological institutionalism runs the risk of losing sight of actors. Focusing attention on institutions as ‘structures of sense’ that enable actors’ identities and interests and underlay their actions, neglects the argumentative practices that produce, reproduce, challenge and transform these institutions (Risse, 2003: 109). Although Risse’s association of institutionalism and communicative action can be seen as a first step to link certain assumptions of the linguistic turn, more specifically speech-act and argumentation theory to institutional analysis in IR, even stronger cases have been made in this regard. These studies do not only address the influence of conventional discourses (norms, language-games) on linguistic interaction and argumentative claims, but also see these claims as embedded in social environments (Johnston, 2001). Iver Neumann pleaded in 2002 for Returning Practice to the Linguistic Turn (2002). He argues against ‘armchair analyses’ of discourses in international politics, that is ‘text-based analyses of global politics that are not complemented by different kinds of contextual data from the field, data that may illuminate how foreign policy and global politics are experienced as lived practices’ (Neumann, 2002: 628). A particular understanding of the ‘world’ or reality and its bearings upon social and political practices, thus, can only be apprehended in its situatedness. Johnston argues in a similar vein that conventional approaches to institutions in IR tend to overemphasize macro-historical diffusion of values and norms to the detriment of the micro-processes of socialization and social interaction by which these values influence political practice and interaction. These are the ‘processes by which unit-level actors understand, process, interpret and act

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upon lessons that are “taught” by international institutions as agents’ (Johnston, 2001: 492). Any analysis of the effects of conventionalized discourses on the speech practice of actors therefore entails looking at the characteristics of the social situation in which actors act as meaning-producers. Empirical studies at the crossroads between institutional analysis, policy-making and discourse Critical layers to this academic interest in the overlapping terrain between institutions, meaning and discourse have been added by Ellis (2002), Steffek and Nanz (Nanz and Steffek, 2004b; Steffek, 2000; Steffek, 2003) and Payne and Samhat (2004). Ellis, Steffek and Nanz connect global governance structures with the ethical aspects of the Habermasian theory of communicative action. In shedding light on international regimes as the primary locus for the legitimation of international agreements and norms, they argue for the crucial role of non-governmental organizations in providing the kind of international public sphere that seems to be missing in order to give these agreements true ‘public’ legitimacy (Ellis, 2002: 276; Nanz and Steffek, 2004b; Steffek, 2000; Steffek, 2003). Generally, these authors maintain that international regimes should be seen both as policy-making and as opinion-building spheres (Ellis, 2002: 290). This latter dimension, they argue, has been largely neglected in current institutionalist thinking. A perspective that tries to incorporate the various social factors that assign international opinion-building and decision-making processes their dynamic character allows the broadening of current conceptions of new institutionalism in IR by adding a decisively discursive dimension to it. Interactive policy-making processes between international stakeholders should then not only be analysed with regard to the political results they produce, but rather ‘appreciated as sites for the articulation of conflict and difference, as a place of social and cultural contestation’ (Hajer, 2003: 99). As such, the processes instead of the results (guidelines, conventions, declarations, policy papers, etc.) are attributed the principal attention of the analysis. Two of the various discourse approaches mentioned in Chapter 2 shall be singled out here, since their analytical framework for empirical investigation has explicitly addressed the overlapping nature of discourse analysis and institutional analysis: Litfin’s Ozone Discourses (Litfin, 1994) and Hajer’s The Politics of Environmental Discourse (1995). In his seminal book, Hajer, for example, maintains that ‘discourse analysis should not be defined in contradistinction to an institutional analysis’

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(Hajer, 1995: 263). Although Hajer focuses on discourses of ecological modernization in Great Britain and the Netherlands and, thus, does not qualify as a researcher of inter-/transnational discourse, his emphasis on the institutional framework within which actors (re)negotiate meaning appears to be among the few of their kind. Hajer can be seen as one of the leading figures in the ‘argumentative turn in policy analysis’ (Fischer and Forester, 1993; Hajer, 2003; Hajer and Wagenaar, 2003). In asserting that discursive strategies have to be recapitulated in their own social and cognitive context (Hajer, 1995: 21), Hajer introduces the value of institutions as sites for the investigation of these same practices and makes a strong case for enhancing the status of discourse (analysis) in studying policy-choices, policy-formulation and planning. Arguments similar to those advanced by Hajer have been advanced within IR constructivist scholarship by Karen Litfin. Her book on Ozone Discourses might be seen as one of the most convincing attempts, so far, to locate the mutual constitution of agents and structures in an institutional framework. She examined the international negotiations for the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (the first treaty dealing with a global ecological problem). Litfin explicitly works with the Foucauldian link between power and knowledge and their manifestation both in discourse and in political and social institutions. She applies this power-knowledge-nexus onto the negotiations for the Montreal Protocol 1987. Litfin’s analysis primarily aims at revealing the processes in which seemingly objective knowledge contributes to the construction of ‘facts’ (and the respective exclusion of alternative options and perceptions) and, in the end, to the formulation of policy options. In concentrating on a particular instantiation of the junction between scientific knowledge and its context-dependent interpretation in a particular social setting (the negotiations), Litfin succeeds in tracing back a particular discursive change that manifested itself in the discursive action in the course of the negotiations, whereby the discourse of precautionary action shifted from a subsidiary to a dominant perspective on the ‘ozone problem’ (Litfin, 1994: 10). Both Litfin and Hajer emphasize the necessity of investigating policymaking processes not so much with a focus on their respective results but in their nature as sites for struggles about essentially contested concepts. They underscore the numerous factors that contribute to the fact that a partial closure and a temporary fixation of meaning are made possible, not so much because of an agent-driven yearning for unanimity, harmony and compromise but due to power structures that reside in institutional frameworks, conventionalized discourses and the nexus

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between power and knowledge that privileges the voice and worldviews of some actors over others.

3.4 International negotiations as sites for discursive contestation The proceduralized discourse that has been chosen for this study – the drafting of the UN Convention of the Rights of the Child – belongs to a particular subset of international social interaction: international treaty negotiations.9 Negotiations between states have in the past been studied using a variety of theoretical backgrounds, most notably history, economics and management theory, anthropology, sociology and law (Jönsson, 2001: 217). Classical, game-theoretical IR approaches to negotiation processes have largely pictured these decision-making events as showcases for instrumental rationality, power politics and ‘bargaining’ (Schelling, 1966). In the past decades, however, this traditional legacy has been enriched by a variety of negotiation studies that elucidate the cultural, linguistic and sociological facets of interaction in multilateral negotiation series. This was partly an effect of the observable growth of multilateral negotiation forums in the later decades of the twentieth century. Since classical game theory largely focused on bilateral negotiations, multilateral complexity presented a serious challenge to this explanatory scheme. Consequently, calls were made for the incorporation of social, contextual and institutional parameters into the analysis of negotiations which resulted in a growing body of sociological approaches to negotiations. It is the particular merit of arguing-approaches – whose empirical cases have almost exclusively concentrated on international negotiations – to have watered down that trend and to have pointed to the multiple sociological facets and social dynamics that these communicative events bring with them (Müller, 1994; Müller, 1995; Müller, 2004; Risse-Kappen, 1995; Risse, 2000; Risse and Ulbert, 2001). Yet, these still remain notable exceptions to the rule, with the majority of analyses still adhering to the conventional view of seeing negotiations as bargaining processes in which the ‘logic of consequentialism’ (March and Olsen, 1998: 950) prevails. The growing belief in the sociology of negotiations has also entered negotiation theory (Cohen, 1991; Cohen, 2000; Jönsson, 1990; Jönsson, 2001; Sebenius, 1992; Zartman, 1994; Zartman, 1999). Yet, communicative and linguistic aspects of negotiations have, according to Jönsson’s 2001 survey of the field, ‘received scant attention’

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(Jönsson, 2001: 227). In his own attempt to conceptualize negotiations as communicative events, Jönsson has pictured negotiators entering the discursive forum as ‘sign producers’ or ‘sign users’ (Jönsson, 1990: 26). These sign producers are constrained by the institutional framework within which negotiations take place as well as by the government instructions they carry in their baggage. Nevertheless, the social dynamics that develop between sign producers can bring about dramatic changes in perspectives that manifest themselves in the particular social situation in which they communicate with their fellow national representatives, non-governmental organizations, experts, private business representatives, religious leaders or military officials. In a coherent social view of language, it is within a specific social environment and ‘always within fields of power [...] that these sign-producers transform the cultural/linguistic resources available to them’ (Kress, 2001: 37). In the case of international negotiations, thus, these social structures cannot be seen as simply paralleling national representations, but rather as constituting processes of meaning-negotiation with their own linguistic and social dynamics, dynamics which effect that ‘actors who enter into a social interaction rarely emerge the same’ (Johnston, 2001: 488). The social dynamics of international negotiations State participants in opinion-building and decision-making forums are often highly constrained in their possibilities to pursue alternative strategies that are not authorized by their governments at home. Nevertheless, it is often the case that in the course of the negotiations in a particular transnational social setting (such as the opinion-building and decision-making structures of the United Nations, the WTO or the European Union) changes in mind and collectively shared arguments and assumptions emerge which produce policy-documents that embody a decisive change in defining the issue-area or dealing with the collective problem. And even though actors who enter the discursive forum might already hold prefigured expectations about the opinions, preferences and values of their fellow delegates/state representatives, it is only in the course of the exchange of arguments/negotiations that they can really grasp what is universalizable and what is not (Benhabib quoted in: Ellis, 2002: 285). Certain constructivist tendencies to stress the value of scrutinizing and analysing the social processes that generate international agreements (legal documents, treaties, declarations, plans of action) have, by now, also gradually encroached on the field of negotiation theory, a field that is still widely dominated by theoretical

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approaches that highlight rationalist, profit-maximizing behaviour and bargaining processes: ... analyses that ignore the context in which negotiation takes place, the meaning of the language the negotiators use, and the impact of cultural, social, institutional, political, and psychological factors on processes of communication and choice, are inadequate as explanations of international negotiations. (Stein quoted in: Jönsson, 1990: 1) As a consequence, international proceduralized structures for communicative exchange are seen as developing their own ‘culture’ and social dynamics, rather than just mirroring the various cultural resources (negotiation styles, symbols, preferences) of the individual actors involved (Zartman, 1999: 4). The gradual process during which elements of a common culture between state representatives and other participants develop – some traces of a common lifeworld – is in itself worthwhile as an object of study. Even more important to the development of international cultural traits that cannot be reduced to the individual articulations of national representatives, however, are nonstate actors such as non-governmental organizations whose participation in transnational proceduralized discourses might, in fact, insert a variety of elements of a ‘world culture’ (Boli and Thomas, 1999). Those participating in decision-making events are therefore not perceived as singular actors delivering individual messages but rather part of larger interpretive communities (Fish, 1988; Johnstone, 1991). Proceduralized discourse and exclusion in international negotiations Multilateral negotiations as institutionalized discursive practice can be a rich resource for an investigation of the transformation of powerful narratives. Even though negotiations in general, and treaty negotiations such as the drafting of the CRC in particular, come ‘in all kinds of forms and shapes’ (Freudenschuss-Reichl, 2002), there are some general characteristics that all of them share – these characteristics are related to meaning-making and meaning-closure taking place in these settings. International negotiations are policy-making arenas. The negotiations of interests, ideas and opinions and the drafting processes in the course of which they materialize as ‘texts’ eventually aim at the formulation of comparatively strong and far-reaching legal guidelines, recommendations, resolutions, treaties, and so on. In this regard, these international communicative events are goal-oriented (Drew

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and Heritage, 1992a: 22; Kolb and Faure, 1994: 120–121) as opposed to international communicative events that simply aim at the exchange of different views, such as diplomatic encounters or international summits. Through their quality as both opinion-building as well as will-formation forums (to seize a distinction made by Habermas) (Habermas, 1994), negotiations are explicitly designed for problemsolving, that is, to reach a via media between conflicting perspectives in the form of commonly agreed formulations and solutions to collective problems. The problem-solving quality of negotiations implies that there exists, ‘at the very least, a not-yet-agreed-upon perspective on an issue’ (Muntigl, 2000: 21). Such negotiations must necessarily rely on exclusionary practices that lead to a gradual narrowing down of options for the participants, especially with time pressure rising in the course of the negotiation process. International negotiations are characterized by ‘institutional talk’ (Drew and Heritage, 1992a). Institutional talk refers to the goal-orientation of social interaction as well as the ‘inferential frameworks and procedures that are particular to specific institutional contexts’ (Drew and Heritage, 1992a: 22). The institutional procedures and rules in these settings are rather clear-cut, they allow identifying ‘special and particular constraints (on what one or both of the participants will treat as allowable contributions to the business at hand)’ (Drew and Heritage, 1992b: 22). In comparison to negotiations in national settings, international negotiations always take place in an organizational framework (cf. Kolb and Faure, 1994: 113, 114), such as the UN, the EU or the WTO. As Wodak posits, it is only settings with clear social conventions and rules of interaction that can provide a functional framework for communication (Wodak, 1996: 25). International negotiations are often rather small social settings with a limited number of participants. Accordingly, an analysis of this particular social environment enables the researcher to identify voices, perspectives and participants that have not been included in the process. Non-decision making and the ‘organizing out’ of political issues might be easier to trace back in such small social environments than in large, and rather loosely structured institutional settings such as world conferences, social forums, world summits, and so on. Within these small social settings, repeated encounters between participants (who often stay the same throughout the years) lead to the gradual development of a certain common Lebenswelt (lifeworld),10 to specific routines, stable patterns of behaviour over time and small negotiating ‘cultures’ that develop their own social dynamics.

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All of the characteristics listed above contribute to the exclusionary character of international negotiations. The rules for proceduralized discourse are clear-cut and strict, prefiguring access to the discursive event in question, participant status and conversational rights inside the discursive event (e.g. between state and non-state actors). In particular, the goal-oriented nature of negotiations introduces one factor of social dynamics whose exclusionary effects are almost inevitable: the factor of time. Most sociological studies of the interpersonal dynamics in multilateral negotiations have emphasized the role of timing and the importance of time-sequential process tracing in these decision-making events (Müller, 1994: 33–35; Risse, 2000: 20–21). Social constructivist approaches to negotiations acknowledge that social interaction in multilateral negotiations proceeds through different stages, whereby it is assumed that earlier stages of pre-negotiation, problem-definition and agenda-setting are characterized by higher complexity, uncertainty of actors and openness of the debate (towards issues, actors and arguments), while later phases move towards problem-solution, agreement and, ultimately, closure of the event (Jönsson, 2001: 225–227). Process analysis is, thus, particularly interested in the identification of turning points in the negotiations that mark the transition from one phase to another (Jönsson, 2001: 226). These turning points also mark the move towards a steady decrease in possibilities to insert new issues, ideas or knowledge resources to the debate. Linking this timing-factor to the preceding deliberations on discourse, power and exclusion, essentially proceeds in two steps: in the transition from the global to the local context (i.e. when actors enter the deliberative enclave) and within the local context. The following pages seek to show how.

3.5 An analytical framework to study the interplay between discourse, power and institutions Social theorists, policy-making analysts and sociolinguists alike have addressed the two-fold nature of context in which every speech-act is embedded – the immediate social situation on the one hand and the larger, more diffuse historical context on the other hand. Habermas’ distinction between a regulated public space and a spontaneous one captures the relationship between a political decision-making event and the larger societal context by which it is surrounded and to which it responds. While the regulated sphere of communicative exchange represents a ‘produced public’, a public created in order to reach a consensus on a specific problematic, the latter embodies general public opinion, possibilities of opinion-building and expression of opinion

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(but without the possibility of decision-making) (Habermas, 1994: 415–434). Sociolinguistic discourse researchers have also found terms for the differentiation described here: Teun van Dijk refers to ‘local’ and ‘global’ contexts, where global contexts comprise the ‘social, political, cultural and historical structures in which a communicative event takes place’ while ‘local context is usually defined in terms of properties of the immediate, interactional situation in which a communicative event takes place’ (van Dijk, 2001: 108). No matter how this dichotomy is referred to, it is the case that a distinction between different contexts – one more concrete, the other more diffuse – is essential for an analytical link between power in discourse and power of discourse, since it permits a communicative event of meaning-negotiation to be viewed as a funnel, in the sense that the local event is necessarily a particular snapshot of the larger discursive event in which it is embedded. This snapshot includes certain actors, knowledge resources, worldviews, earlier texts and discursive repertoires while it excludes others. It is, therefore, necessarily narrowing down the possibilities for articulation. This process of narrowing down, in turn, can be visualized as a funnel (see Figure 3.1) which consists of exclusionary Synchronic analysis

GLOBAL CONTEXT Conventionalized discourse KNOWLEDGE RESOURCES

LOCAL CONTEXT

PREVIOUS DISCOURSES

Proceduralized discourse

TEXT

PREVIOUS NORMS

T1

Diachronic analysis

T2

T3

Figure 3.1 Funnelling model (own model)

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structures on epistemic (knowledge), institutional (participants, rules of the game) and semantic levels. Picturing an international process of meaning-negotiation as a funnel – due to time pressure and an ongoing fixing in place of formulations after discussion – allows the opinion-building and decision-making process to be imagined as a process of narrowing down the possibilities for articulation, the closer the event comes to decision-making and, thus, the fixing of meaning. As such, the funnelling model means discursive processes can be studied as a process, both in spatial and in temporal dimensions. Spatially, it delimits or brackets an instance of communicative interaction from the wider discursive environment. The model opens the way for a closer and more precise analysis of institutional structures (rules of the game), and, at the same time, permits the juxtaposition of the principal communicative event with other, parallel, communicative events connected to the same issuearea. Temporally, different phases in the social process can be accounted for. There are essentially two such phases: an opinion-building phase characterized by higher possibilities for an ‘opening up of linguistic space’ (Chadwick, 2000), and a decision-making phase which might be very restrictive as regards new participants, newly introduced issues or possibilities for reformulation. Furthermore, the funnelling model allows the relationship between text and context(s) to be visualized as a sequential relation of mutual constitution wherein the local context is constituted by the global context, the text is a product of the local context (with agents as articulators ‘enacting’ particular elements of the global context) and the text produced, in the end, becomes part – and as such a constitutive element – of the global context again, altering political reality and shaping political action. Addressing the issue of exclusion or the silenced voices that have not appeared in the local context inevitably provokes the question of where to start investigating what has not been said or written in that specific communicative situation.11 In principle, there exist an unlimited number of things that are excluded from discursive interaction (Linde, 2001: 528 f.). However, by investigating the larger context out of which a specific local communicative event (a crisis summit, a treaty-making process, a world conference, an International Year of X) has emerged, it will be possible to identify some issues, participants or arguments that could have been considered as legitimately pertinent to the discourse in question, judging from their political, historical or regional salience at a specific moment. Analysing the global context surrounding discursive action in a regulated public forum and contrasting the broader

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socio-political context with the narrower context of the meaningmaking process should facilitate grasping ‘exclusion’ and selecting from the infinite mass of potentially excluded items. Although focusing primarily on a specific process of meaning-negotiation and the (hegemonic) text that resulted from it, it appears that a comparison with other discursive events that have taken in different settings but on the same time line should allow to see if outside the institutionalized communicative interaction in question the same conventionalized discourses have appeared, been used and, perhaps, also been transformed. Can we find discursive resources here that did not appear in the proceduralized discourse in question? Is it possible to identify knowledge resources and discursive repertoires in other social settings that differ quite radically from the local discursive situation? Operationalizing the funnelling model – Sociolinguistic of Critical Discourse Analysis (CDA) In order to grasp these two dimensions of power in discourse and power of discourse, the sociolinguistic school of CDA offers a stock of methodological concepts that serve to combine sociological and rather straightforward linguistic features of discursive practices.12 The CDA approach is put forward as being empirically sound and well suited for social scientists of any kind making this particular School of discourse analysis an excellent terrain in which to seek an operationalization of power in discourse and power of discourse. Critical discourse analysts position themselves much closer to the sociological branch of discourse research than to the linguistic one, combining social research with rather simple linguistic aspects.13 Hence, scholars of this tradition advance the claim that text analysis is just one part of social science (and not even the principal part) and that ‘textual research is a valuable supplement to social research, not a replacement for other forms of social research and analysis’ (Fairclough, 2003: 17). The discourse-analytical approach of the Vienna School has its roots in the sociolinguistic tradition of Bernstein (Bernstein, 1970; Bernstein, 1990) that tries to bring together simple linguistic variables with structural sociological analytical approaches (Weiss and Wodak, 2002: 6). Although every analysis will inevitably involve linguistic elements and categories, following the principles of the Vienna School implies subordinating text to context. In critical linguistics, linguistic action is social action of which texts are the outward manifestation. The text, not the sentence (or the word, or the sound) is the basic unit, the starting point. All linguistic

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action is textual action. Language is a means to instantiate, to realize and to give shape to (aspects) of the social. (Kress, 2001: 35) With the foregoing discussions on power and exclusion in mind, CDA thus is especially suitable in addressing the first research question that underlies this study: how can we observe and investigate moments of discursive power and exclusion in international discursive practices? This question essentially aims at exploring the means or analytical tools by which we can translate the theoretical assumptions put forward throughout the previous chapters into an analytic framework for studying linguistic action, by relating ‘text and talk’ to the institutional practices (local context) and larger systems of meaning (global context) in which they were produced. Hence, this study’s argument that CDA scholars offer a range of useful methodological devices to grasp these two dimensions of context into which the production of text is embedded and by which it is to a certain extent constrained. The sociolinguistic CDA not only supplies the researcher with the necessary toolkit to confront discursive practices in institutional frameworks, but it furthermore allows exclusionary forces in discourse to be explicitly addressed and related to both structures (the power of discourse) and agents (the power in discourse). Defining discourse as movement and order in CDA At the beginning of Chapter 2, discourse was defined as a social space of meaning-negotiation and text-production within which meaning- conventions are both sustained and transformed. This definition of discourse goes back to understandings of discourse and its analysis promoted by CDA scholars. It aims to cover both the historical/temporal dimension of discourse as an underlying structure of social conventions and meaning on the one hand (the constitutive character of discourse), as well as the spatial function of discourse as a site for the perpetuation/reproduction and transformation of this underlying structure and as the locus for discursive practices. These two dimensions shall now be discussed in more detail and through a more specific sociolinguistic lens. Discourse in its temporal dimension (historical function of discourse): discourse, most generally, shall be seen here as ‘a complex bundle of simultaneous and sequential interrelated linguistic acts, which manifest themselves within and across the social fields of action as thematically interrelated semiotic, oral and written tokens’ (Wodak, 2001a: 66).

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It can thus be visualized as a flow of knowledge, culture and ideas through time expressed through language. Only on the basis of already existing discourses – as well as identities and connotations that were constructed within previous discourses – can social interaction and communication take place. At the same time, discourse is permanently altered by communicative exchange. Discourse, therefore, constitutes societal actions and vice versa (Wodak, 2001a: 66). This is a perpetual exchange. Discourse can be grasped because it is materialized in the form of text and talk (images, written or taped documents) – but only if those texts are seen in close relation to their contexts can their specific, temporal and ‘local’ meaning be guessed at. Discourse in its spatial dimension (practical function of discourse): discourse in its spatial dimension is understood as a field ‘that comprises stakes, capitals, objective conditions, and a space of actual and possible activities and meanings’ (Schatzki, 2002: 143). Discourse, to borrow a distinction from Widdowson, is ‘the pragmatic process of meaning negotiation. Text is its product’ (Widdowson, 1995: 164; a similar formulation can be found in Hodge and Kress, 2002). Hence, discourse works as a virtual arena for the struggle over the definition of ‘essentially contested concepts’. What follows from this is that discourse is an amassment of linguistic social practices, which are characterized by synchronic and diachronic linguistic acts. A process of bracketing,14 with which to analytically grasp the mutual constitution of agents and structures, can thus be imagined as happening both in temporal as well as in spatial terms (Archer, 1985). Temporal bracketing allows for a process of discursive change to be witnessed within a limited field of discursive practice (an organizational debate, a negotiation series, a conference, a bilateral meeting) with its various phases of meaning-negotiation. The spatial separation, however, is intended to separate ‘global’ from ‘local’ contexts in the sense that it tries to distinguish the discursive environment from the actual discursive situation to be investigated. In this way, the global macro-sociological structure is distinguished from a local situation (Cobb, 1994: 135) in which social conventions are put to use. CDA addresses both of these dimensions of discourse by claiming that in the investigation of political issues and texts, it ‘attempts to integrate a large quantity of available knowledge about the historical sources and the background of the social and political fields in which discursive “events” are embedded’ (Wodak, 2001a: 65).

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Linking the funnelling model to CDA’s analytical categories Contemporary CDA seems to have ‘discovered’ organizational discourse as a suitable terrain for studying power and exclusion through discourse (Fairhurst and Putnam, 2004; Iedema, 2003; Iedema et al., 2004; Iedema and Wodak, 1999; Muntigl et al., 2000; Putnam and Fairhurst, 2001). The studies mentioned here look both at the processes whereby organizations are produced and reproduced in their members’ discursive practices, and at the question of how the outcomes of organizational talk (e.g. European Union policies on unemployment) shape identities and public perceptions (Muntigl, 2000). The linguistic and social practices that take place inside public institutions, such as, for instance, the organizational practices of immigration control authorities (Van Leeuwen and Wodak, 1999), and the power asymmetries and exclusionary dimensions that go hand in hand with these institutionalized practices constitute a popular field of inquiry in CDA. Addressing EU negotiations on un/employment in particular, some CDA scholars suggest deliberately choosing the word ‘negotiating’ in order to point to the ‘unfolding, dynamic and interactive process’ that constitutes a negotiation (Muntigl, 2000: 20). In studying this process, Muntigl et al. maintain, emphasis should be placed on the social actions that, together, represent the process of negotiating social actions such as ‘formulating, reformulating, and disagreeing with claims and how such claims orient to specifiable outcomes’ (Muntigl, 2000: 22). Particularly those positions and claims that are exhaustively debated and those that are not should be highlighted in the analysis. Merging the funnelling model as a heuristic device with CDA’s analytical categories to cover both constraints and opportunities on macro- and micro-level acknowledges such a discursive perspective on negotiations as proceduralized discourse in international politics (see Figure 3.2). It allows for the studying of influence and exclusion in international negotiating-processes in various dimensions. Analysing negotiations that take place in a well-defined organizational framework opens the way for seeing the conduct of participants and the organization of their arguments in their orientation towards institutional constraints, local and global identities (Drew and Heritage, 1992a: 20). The institutional constraints they focus upon are those that make up the ‘everyday business’ of organizations. In multilateral negotiations, these would be: the fixed time schedules, pre-allocated speaking turns, the linguistic codes of UN ‘language’, the temporal limitations for speaking, the time pressure as regards decision-making, the rules for organizations of singular contributions to discussion, or the legalistic

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language constraining non-legal experts especially IGOs and NGOs with non-legal background. All of these characteristics contribute to the funnelling process. Analysing the power of discourse Several key analytical categories employed by CDA scholars elucidate the connection between global and local, general and particular, and, furthermore, the processes through which agents are constrained by meaning-structures and enact and transform these at the same time. Discourses that have become institutionalized over time are perceived as resources in the form of knowledge, texts, discourses and norms. The greater or lesser extent to which these resources figure in the communicative practices in a specific local situation can be analytically grasped by using some of the most prominent CDA concepts: ‘intertextuality’ (Fairclough, 2003; Scollon, 2001; Shapiro, 1989: 11; Wodak, 1996: 11), ‘interdiscursivity’ (Fairclough, 2001a: 124; Jäger, 2001b: 96–97; Wodak, 2001a: 66–69) and ‘fact construction’ (Edwards and Potter, 1992; Horton-Salway, 2002). Intertextuality Intertextuality aims at recovering the influence of previous texts on the linguistic practice under scrutiny. Analysing intertextuality entails tracing back the existence of elements of other texts in the textual sequence in question. In the light of what was said earlier on about materialized social structures and ‘texts’, it is assumed that all communicative practice borrows from earlier texts (Scollon, 2001: 8). Texts might be replies to earlier ones, that is, they implicitly or explicitly build upon previously formulated arguments. An invocation of these texts by articulators can elucidate the influence of earlier texts on the discursive practice in question. Hence, discourses are historical not only in that they are connected to texts produced earlier, but also in that they are synchronically related to texts that are produced in a different social setting but coinciding with the communicative event under scrutiny (Wodak, 1996: 19). With regard to an analytical interest in how macro-contextual elements both prefigure and enable communicative interaction, intertextuality figures in negotiations between states primarily in the references they make to earlier international texts (treaties, conventions, resolutions, declarations) and the ways in which they employ these texts either to sustain traditional discourses or to connect them to novel claims. They seize formulations and ideas from previously adopted

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texts or from texts that are produced simultaneously to the negotiation process in question. These texts are either invoked in order to show how perceptions have changed over time or they serve to establish traits of a common lifeworld by pointing to meanings that have already been shared between the members of the specific interpretive community in question. International texts that are sidelined, conversely, allow inferences to be made about exclusionary dimensions of the negotiations in questions. Texts that are frequently quoted as a point of reference, in turn, mean the relative authority of these earlier documents can be accounted for. Interdiscursivity Interdiscursivity refers to the interweaving of different discursive strands (or sub-discourses) in a single speech-act. That is, two or more different ‘topoi’ are connected in an argument and, by that, constitute a claim about reality (Wodak, 2001a). Fairclough, in his critical stance, is especially interested in the ways that interdiscursivity can be a signal of discursive transformation and change. He assumes that interdiscursivity is ‘both a sign and a driving force of social and cultural change’ (Phillips and Jorgensen, 2002). An analysis of interdiscursivity asks: ‘how do particular types of interaction articulate together different genres, discourses and styles?’ (Fairclough, 2001a: 126; Fairclough, 2003: 35, 218). Discursive practices may either reproduce ‘routinized categories’ (Hajer, 1995: 57) such as the various conventional child images identified in Chapter 5 or may create new interdiscursive combinations between traditional discourses and ‘new historical examples’ (Hajer, 1995: 57). Interdiscursivity as the mingling of different discourse strands connected to the same topic – in the case of this study, the topic of childhood and children’s rights – are taken to be naturally part of any discursive event, such as an international negotiation series. Practices of interdiscursivity often connect traditional or consolidated views to new issues and, as such, represent novel articulations related to a specific semantic field (such as childhood). Fact construction Fact construction aims to uncover – in the individual speech-acts and argumentation strategies – various types of presenting something as a fact, either by using statistics, data and seemingly scientific, uncontested knowledge or by presenting something as virtually ‘natural’ in the sense that it is presented as common sense (although it might be highly contested) (Edwards and Potter, 1992: 25–27, 158–165). The analytical

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tool of fact construction is used to identify the various techniques of participants in communicative interaction to generate some sort of ‘factuality’, that is, to present issues in ‘factual, disinterested versions’ (Edwards and Potter, 1992: 3). The ultimate aim of this lies in undermining alternatives (Edwards and Potter, 1992: 154). The absence of fact construction in actors’ discursive practices is also taken as an indicator for a lack of knowledge about an issue-area. With an analytical focus on the presentation of ‘facts’, it is vital to distinguish between various forms of presenting an issue or opinion as a ‘fact’: (a) those connecting the individual argument to a knowledge resource (such as numbers, statistics, an influential scientific theory, an external authority) or (b) those presenting the argument as being beyond contestation using expressions like ‘it is a fact’, ‘it is uncontroversial’, ‘it is agreed’, ‘it is undisputed’, ‘it is natural that’, and so on. Many of the statements also invoke consensual beliefs as rhetorical constructions, for example, by referring to supposedly commonsensical beliefs and ‘we’-constructions, thereby ‘externalising’ their version of reality (Edwards and Potter, 1992: 105). Fact construction is considered inherent to all processes in which actors attempt to convince others of their version of reality. Deliberations involving state and non-state actors, thus, supposedly exhibit instances of fact construction, in which participants to the debate present their ideas in a factual, objective manner, either with reference to the ‘naturalness’ of the view in question, by appealing to seemingly true data, statistics or objective pieces of information, or by invoking that their view is shared by a large group of people. The argument, then, is clothed in ‘we’-constructions. Particularly in the initial phases of negotiations that are commonly taken to be phases characterized by uncertainty and insecurity on the part of the participants, fact construction can be expected to be a vital element in actors’ discursive practices. In addition, international negotiations usually take place among larger groups of people coming from the most disparate cultural and ideological backgrounds (Cohen, 1991; Jönsson, 1990: 39; Kolb and Faure, 1994: 114). Presenting their individual standpoints as seemingly uncontested knowledge or values as broadly shared, thus, appears to be endemic to deliberations between actors coming from all over the world. Power in discourse and the issue of exclusion For CDA, the power in discourse that is displayed in events of intersubjective language-exchange and actors’ struggle over interpretation

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can also be conceived of as an array of exclusionary forces – an array that is composed of specific linguistic codes, rules for interaction, rules for access to the meaning-making forum, rules for decisionmaking, turn-taking, opening of sessions, making contributions and interventions. While the various analytical tools specified in the preceding section relate to the influence and exclusionary power exerted by discursive macro-structures (knowledge, norms, ideas, texts), CDA also addresses exclusion from a far more specific angle. It is seen as an effect of institutional procedures, issues of access to the meaningmaking forum, of possibilities to engage in dialogue and of introducing different modes of speaking and different topics into concrete communicative events. Seen from this perspective, exclusion is taken to be a matter of being physically present but ‘mute’ in the sense that the speech-act entitlements embodied in the procedural framework favour some articulators over others. Key analytical categories of CDA have tried to capture these parameters of institutional/organizational exclusion: re- contextualization (Iedema and Wodak, 1999; Linell, 1998: 141, 154–156) and asymmetry in dialogue (Drew and Heritage, 1992a; Linell and Luckmann, 1991). Possibilities of transforming powerful perceptions of reality and ‘meanings’ are, therefore, intimately bound to rights and authorizations in discursive practice. Although in a much more insubstantial manner, Foucault has explicitly addressed three notable dimensions of discursive exclusion: the exclusion of modes of speaking (Foucault, 2003: 25) where everything that claims to be true has to obey a ‘discursive police’ (Foucault, 2003: 25), of ‘relevant semantic participants’ (van Dijk, 1997b: 26) or the ‘taboo of the subject’ (Foucault, 2003: 11), and the ‘narrowing down of speaking subjects’ (Foucault, 2003: 26). Taking these exclusionary dimensions as catchphrases for diverse facets of exclusion, I will here develop three sets of assumptions that relate to the influence of micro-context on text and, equally important, to the abilities or capability of actors to deal with micro-institutional constraints and to circumvent these in their discursive practices. Exclusion of modes of speaking (re-contextualization) Constraints of the institutional setting of a particular communicative event primarily exhibit themselves in institutionalized modes of speaking that are characteristic of specific social situations and organizations. It is often the case that issue-areas introduced and dealt with in specific institutional frameworks are re-contextualized, that

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is, the mode of speaking about the subject adapts to the institutional environment in which it is handled. The case of severe neglect of a helpless old woman by her nurse in an elderly people’s home might be re- contextualized in terms of the ‘client’ complaining against his ‘provider’ in the courtroom or in a work meeting while it might be put in a language of victim-perpetrator in media discourse. Furthermore, the way of speaking about the incident might change dramatically when switching from an informal setting to a formal one – thereby often abandoning emphatic, emotional modes of speaking for a technocratic, depersonalized, neutralizing style or, in international politics more and more frequently, legalistic ‘communicative codes and genres’ (Linell and Luckmann, 1991: 12). These communicative codes and genres thus represent constraining factors vis-à-vis agents entering the meaning-negotiation, especially those who are not familiar with institution-specific linguistic rules (such as NGOs in the early phases of their participation in UN global governance structures and in the ‘global child’ example in particular). At the same time, they enable actors (a) to adapt to these rules and, therefore, be more successful in exploiting their knowledge and (b) to develop a common cultural framework/lifeworld within which it is much easier to communicate. This may even be more of an enabling factor within communicative events such as international negotiations in which actors do not speak the same language (in the sense of ‘idiom’) and often represent various cultures of negotiation. A common communicative code, hence, may provide the first basis upon which to establish a common lifeworld. Very often, the ritualistic cultures of highly formalized international institutional environments serve as an enabling framework particularly for non-state actors, since they can gain in credibility by adjusting their interventions and argumentations to these rituals. Micro-contextual dimensions of power and exclusion also manifest themselves in particular ways in international negotiations. Re-contextualization and the resulting exclusion of particular modes of speaking, in many cases involves switching to juridical language and, again, couching arguments in legal language. Since much of the negotiations circles around appropriate legal expressions for complex issues and problems, many of the items discussed are re-contextualized as questions of legal wording. Procedures of communicative exchange and ways of introducing ideas and making interventions are highly ritualized and formalized – and, as a consequence, delegitimize informal or emotive language.

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Exclusion of semantic participants The exclusion of ‘relevant (semantic) participants’ (van Dijk, 1997b: 26) that is, the issue-areas discussed and considered relevant is equally important to an analysis of power and exclusion in discursive practices. Certain issue-areas may already have been transformed into ‘nondecisions’ by powerful actors prior to the beginning of the negotiations. Other topics or thematic areas may be argumentatively constructed through ‘binary conceptualisations’ (Chilton, 2004: 202, 203) and polarized evaluations (van Dijk, 1997b: 28) and as such contribute to the exclusion or ‘stigmatization’ of certain topics, perspectives and issues. The organization of individual arguments, moreover, has frequently been observed as following a pattern of positive self-presentation and negative other-presentation (van Dijk, 1997b: 30, 32, 36). This again is a rhetorical means by which to exert power in discourse and marginalize specific (groups of) actors, viewpoints and practices. The possibilities for actors to insert topics are, furthermore, dependent on certain situational constraints, not least on the issue of time pressure. Hence, the possibility of conquering new semantic spaces depends both on the institutional framework – that is, high institutionalization of the field (prior texts, regime density, already existing organizations) that might hamper innovation – as well as on the design of the decisionmaking process, the voting procedures, the time frame and the relative time to discuss certain items. Consequently, it can be argued that a high frequency of newly inserted issues, perspectives and arguments points to a greater permeability of the institutional framework, while a low frequency of newly inserted and discussed topics is indicative of a quick closing down of the potential to conquer new linguistic spaces. Exclusion of speaking subjects The exclusion of speaking subjects rests on the institutional framework or ‘participation framework’ (Goffman, 1981: 137), in that the latter legitimizes the active and passive participation of some actors and hinders that of others. Asymmetries in discursive interaction are produced both by the interaction rules as well as by the rules of access to the discursive event in question (Drew and Heritage, 1992a: 48). While these procedural settings might privilege some actors over others, they are also continuously transformed and changed by these actors. This points to the opportunity for actors to pragmatically respond to the procedural rules of the game and, rather than seeing them as an

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obstacle, to respond and adapt to them in order to be more successful in communicative interaction. The potential of weaker actors, therefore, and the possibilities of empowerment are very much dependent upon a view that does not conceive of the rules of the game as ‘fixed’ but also stresses the capacity of these actors to internalize these rules and, as such, to see them as enabling devices. Similar to the assumption of permeability for issues and knowledge, it is assumed here that chances for newcomers to gain access to conversational resources increasingly narrow down the later they enter or intervene in the discursive event. This also implies that, even though new participants might always have access to the forum, they might be silenced by the mere fact that they are entering a process in which the parameters are already firmly set and in which parts of the text have already been fixed. Especially when inexperienced with communicative codes and decision-making rules, actors might quickly find themselves marginalized and ‘muted’, although physically present. Since actors as speakers or articulators in inter-/transnational discourses such as international negotiations do not speak for themselves, as private persons, but as representatives of larger political bodies (nation states, IGOs, NGOs, other organizational bodies such as the UN Commission on Human Rights, supranational political entities such as the European Union), it must be assumed that the exclusion of one participant equals the exclusion of a larger group of ‘voices’. In transnational negotiations in which state and non-state actors are entering communicative interactions, strong asymmetries exist between those that have access to conversational resources (state actors) and those that dispose of knowledge resources, expertise and moral reputation (nonstate actors). Yet, while some of these negotiations leave only little room for NGO intervention, others permit NGOs to introduce their expertise and perspective on specific issues and assign them rather extensive roles in the process. Asymmetries in international dialogue are here partly engendered by the relative flexibility of institutional rules as regards non-state actors as well as their potential to convince materially stronger actors of their credibility and authority. Discursive practices, therefore, do not only constitute a specific field or language-market, but they can also be perceived as ‘disorders of discourse’ (Wodak, 1996) in which power relations are asymmetrically organized (Linell and Luckmann, 1991) and, ultimately, privilege some contents, participants and perspectives over others.

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T1

T2

T3

Diachronic analysis

Synchronic analysis

CONVENTIONALIZED DISCOURSE Discursive environment PROCEDURALIZED Analytical focus: Contextual DISCOURSE macro-structures constraining and enabling discursive practice Context of situation KNOWLEDGE Fact construction PREVIOUS DISCOURSES Interdiscursivity PREVIOUS NORMS Intertextuality

Analytical focus: contextual microstructures constraining and enabling discursive practice

TEXT

– Exclusion of linguistic codes (re-contextualization) – Exclusion of voices (participatory and conversational rights) – Exclusion of semantic participants

Figure 3.2 Funnelling model with CDA analytical categories

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Part II Global Childhood Revisited

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4 Global Childhood – an Essentially Uncontested Concept?

On 1 March 2005, the US Supreme Court ruled by a vote of 5–4 that the Eighth and Fourteenth Amendments of the Constitution of the United States forbid the execution of offenders who had not yet reached the age of 18 when committing their crime. With the United States being one of the two countries that have, until today, not ratified the UN Convention on the Rights of the Child, this Supreme Court decision is of great significance. There are many who contend that the practice of sentencing juveniles to death has been one of the main obstacles to US ratification of the UN Convention on the Rights of the Child of 1989, which provides in its Article 37 (a) that ‘neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age’.1 The Supreme Court decision might facilitate US ratification of the CRC, which would move this document to almost universal acceptance (with only Somalia not having ratified). When the Supreme Court made its decision, Justice Kennedy, speaking for the majority of the judges, stated ‘[r]etribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity’.2 In delivering the opinion of the Court, Kennedy also explicitly referred to Article 37 of the UN Convention on the Rights of the Child and stated that even those countries that had sentenced to death children under the definition of the Convention after the adoption of the CRC had gradually come to abolish this practice or ‘made public disavowal of this practice’ (Supreme Court of the United States, 2005: 27). His statement, together with the provision of the CRC, reflects a perspective on the protection of ‘childhood’ as fundamentally a phase of innocence and immaturity that covers all human 83

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beings up to the age of 18. Justice O’Connor, in her dissenting opinion, said the following: Adolescents as a class [original emphasis] are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some [original emphasis] 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. (Supreme Court of the United States, 2005: 2) This exchange of arguments not only reflects one of the most dramatic aspects of the international regime on child protection (similar to the debate on children’s participation in armed conflict), but it also gives expression to diverging perspectives on who is a child, why he or she must be seen and treated as a child, and why and to what extent children should be protected. These conflicting understandings, in fact, also characterize a series of debates that had started 26 years earlier, resulting precisely in the UN Convention on the Rights of the Child whose norms had considerable influence on the US Supreme Court decision of 2005.

4.1 Childhood in international political practice and research Childhood is often perceived to be among the least politicized areas (such as sports, leisure, culture) or, at any rate, if considered to be part of political debate, to range among the softest issues in international politics.3 Predictably, this issue-area has so far not seen wider reflection in IR literature.4 Yet, it is a frequently discussed item in international law, in development studies, in comparative history and anthropology (Johnson, 1999a; Richter, 1996; Trommsdorff, 1995a) – in sum, other disciplines with partly international dimensions. The growing interest in childhood issues is also reflected in the emergence of a specific academic sub-discipline of ‘childhood studies’ in the past decade or so, with a few notable academic journals that mainly address political, sociological and legal aspects related to childhood (Childhood, International Journal of Children’s Rights, Children & Society). This trend underlines the understanding that children are a group of human beings fundamentally different from adults and that childhood is a distinct phase of life that deserves its own space in academic research.

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These core beliefs might not at all be questionable to a European researcher of the twenty-first century, who enjoyed many years of school education and a childhood largely protected from the responsibilities and sorrows of the adult world. Indeed, she cannot imagine not seeing children as different and treating them in many respects differently from adults. However, as shall be seen, this understanding is recurrently problematized and challenged on various grounds – both on theoretical (philosophical, psychological, sociological and legal) grounds, as well as on a more practical, cultural-contextual and societal basis. Childhood is a concept laden with contradictions, tensions, projections and conflicting ideals – and the antagonists contesting for the content of the concept are mainly those who have already left childhood (Nelken, 1995: 315). This case study, ultimately, is concerned with childhood as an essentially contested concept in international politics. It is, above all, an account of how adults made use of varying discourses of childhood in a particular social context: the Commission on Human Rights of the United Nations, in which an international perspective of the child was, most recently and most comprehensively, debated and formulated between the years 1979 and 1989. In 1973, Hillary Rodham (now Clinton) contended that children’s rights are ‘a slogan in search of a definition’ (Rodham, 1973: 487). In 1989, the General Assembly adopted a Convention that, after ten years of treaty-making efforts, had filled this slogan or ‘empty signifier’ with all-embracing meaning. The 1989 Convention on the Rights of the Child is the most comprehensive human rights document ever adopted. This document has seen an unprecedented number of ratifications to date.5 Moreover, it has also been the quickest UN treaty to enter into force: within nine months of its adoption. When the idea of formulating a catalogue of special rights for children emerged, many proponents of such a Convention on the Rights of the Child expected the document to be completed at the end of the 1979 International Year of the Child – a ‘Children’s Convention’ was seen as an appropriate political signal for greater visibility and protection of children in international and national politics, as a political ‘statement’ rather than a coherent and binding treaty. In the end, the document took ten years to be drafted before it was finally adopted by the General Assembly in 1989. In the course of the drafting process, a considerable shift in attitude towards children took place, which can be paraphrased as ‘de l’amour vers le respect’ (Toschi, 1997). This discursive shift entails the rejection of a purely protective approach towards children and a turn towards a more rights-based stance, stressing

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the (partial) independence and empowerment of children as legal personalities rather than objects of charity and benevolence.6 Instead of directly protecting children (re-active approach), the CRC calls for the protection of legally established children’s rights (pro-active approach) (Verhellen, 1997: 61) – rights applying to the child as an individual rights-holder. While the philosophies of childhood underlying this Convention have by no means abandoned certain paternalistic, protective attitudes towards the child, the expansion of the definition of the child as well as the rights it may actively pursue represent an utterly novel identity of the child in international politics. This new identity is most strikingly expressed in Article 12 of the Convention: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. The participatory dimension of the CRC will be the primary focus in the analysis of the discursive practices that produced the CRC, since this is the dimension that transforms the identity of the child targeted by the Convention from a mute beneficiary to a social agent.

4.2 The UN Convention on the Rights of the Child as an internationally dominant text Observing national and international efforts on behalf of child protection, one slogan is more than audible and visible in the development policies of the twenty-first century: ‘child participation and empowerment’. It is a forceful slogan and a programme that has, by now, contributed to the steady transformation of many organizations’ policies towards children, the environments in which they grow up and the areas in which they need protection.7 It is maintained here that today, 20 years after its adoption the CRC’s perspective on children can be considered as dominating international policies towards children, both on governmental and civil society levels. Since its adoption, the CRC has inspired a wide range of complementary international treaties, such as the two Optional Protocols to the Convention,8 ILO Convention 182 on the ‘worst forms of child labour’ or the 1997 Ottawa Convention to Ban Landmines.9 Looking at the various organizational

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ideologies of large, mainly Northern-based NGOs working in the field of child protection10 and the unbroken activism of the NGO Group for the Convention on the Rights of the Child,11 one can observe a puzzling unanimity with regard to the CRC. Programme sections on child’s rights in think tanks, specialized research institutes dedicated to childrelated issues12 and rights-based approaches in almost all fields of child protection have mushroomed in the past decade. UNICEF, the largest intergovernmental organization (IGO) addressing the special situation of children, has reformulated its programming priorities by implementing a rights-based approach (RBA) with the Convention at its core. In this respect, the CRC can be seen as the principal driving force behind a global culture of children’s rights, as the main carrier of norms related to children (Sall, 2002: 83) that privilege a rights-based approach (see also: Ennew, 2000a). Today, with the Convention entering the third decade of its implementation, one of the most striking features of the CRC is the finding that at first sight the notions of child and childhood propagated by the Convention appear to come close to an ‘essentially uncontested concept’. The CRC, thus, presents a rewarding ‘hegemonic’ terrain to the researcher interested in the conceptual force of international documents and in the dominance of certain discourses that are disseminated by these texts. UN and UN-affiliated publications on the Convention convey the impression that not talking about children as the most vulnerable part of society that is in particular need of care and affection is a societal taboo – not only in Western societies but also on an international level. Considering, how those for whom we now promote ‘a happy childhood’ were being treated about 200 years ago in the societies of continental Europe, England and Northern America, in fact, reveals that this taboo is a rather recent phenomenon. Nevertheless, the CRC is by now habitually acclaimed as the most successful UN document so far and the one that judging from its near-universal ratification embodies principles and values that are globally shared (Lopatka, 1992; United Nations Centre for Human Rights, 1995). With this global unanimity in mind, numerous child’s rights advocates assess the promulgation of the Convention as a rather easy process of acceptance and implementation, frequently invoking States Parties’ ‘political will’, without addressing possibilities of value conflicts and societal resistances resulting from the picture of the child that the CRC enshrines (Harris-Short, 2001; Harris-Short, 2003; Nelken, 1995: 328).

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4.3 The UN Convention on the Rights of the Child as a contested text It takes a village to raise a child. African proverb Seen from a critical perspective, it appears that the CRC puts forward an ideal of childhood that is ‘one free of responsibilities, which would include work, and dominated by education and leisure within the family context’ (Baker and Hinton, 2001: 190). As other human rights treaties, it has been frequently challenged on the grounds of its modern, Western13 bias (Boyden, 1997; Burr, 2002; Harris-Short, 2001; Kjorholt, 2002; Lenzer, 2002: 216; Lim and Roche, 2000; Ncube, 1998c). Some have, even if very tentatively, conveyed an impression that the CRC might be even more ‘Western’ in its character than other human rights treaties (Boyden, 1997: 197). Influential figures in international children’s rights legislation such as van Bueren claim that ‘[t]he development of the international laws focusing on children reflects the evolution in the concept of childhood which has occurred since the beginning of the twentieth century’ (van Bueren, 1993: xv). However, following the critical voices mentioned above, there is little doubt that this development has mainly reflected the ideals of childhood that have historically emerged in the industrialized, liberal democracies of Europe and Northern America. Indeed, such a development mirrors the very coming-into-being of a contemporary global concept of childhood which has its roots in US-European societies and the recognition of a child’s human rights as a consequence of the gradual ‘seeping through’ of state regulations in spheres that were formerly perceived as belonging to the ‘private realm’ (women, children). While several critics of the universal status of the child as promoted by the Convention relate specifically to the notion of child’s rights, whose legal and societal implementation they see as an inherently delicate affair in many cultures, others more generally object to the view on childhood that the Convention entails. They see especially the countries of Asia and Africa as problematic receivers of the universal childhood message – interestingly, Latin America is (except for its rather large indigenous population) often treated as a less challenging cultural sphere. Various authors have pointed to the danger of equating children’s experiences that differ from the ‘happy, protected’ ideal – whose integral parameters are school, home and the

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nuclear family – with pre-modern, uncivilized, abnormal childhood experience and social practices denying them a proper childhood. A life away from home and school is often associated with being outside childhood (Boyden, 1997: 196; Burr, 2002: 57; Ennew, 1995; Ennew, 2000b; Nieuwenhuys, 1998: 278). Accordingly, the reference points by means of which to evaluate deficiencies in childhood are most often child work, street children, children’s responsibilities, gendered childhood and the absence of educational and leisure offers. Family contexts diverging from the nuclear father-mother-child model such as the much-discussed concept of the extended family, community care or child-headed households are also devalued (Barsh, 1989; Johnson, 1999b; Ncube, 1998b; Rwezaura, 1998b; van Egeren, 1999). The Convention can, thus, be seen as contested text. It might be perceived as a text that, by means of its gradual globalization achieves the status of having become the natural view on children and how to treat them. There are some who challenge this central text as being the harbinger of a modern, urban, bourgeois, middle-class childhood and disseminating the perspective of a happy and protected childhood as the ‘hegemonic ideal’ all over the world (Balagopalan, 2002: 20). These are challenges, which are based on critical cultural arguments that conceive of the Convention as actively promoting an individualistic view on the child and Western models of the ‘Self’ (Breen, 2002; Nieuwenhuys, 1998; Sall, 2002: 82 and others).14 Other arguments challenging the universal nature of the CRC are of a more pragmatic nature and rest on evaluations of the progress that national implementation of the CRC has made during the past 20 years: progress both on the level of legislation as well as regarding the dissemination of the idea of children’s rights throughout civil society (Veerman and Levine, 2000). Here, it appears that (a) the CRC is the human rights treaty with the largest number of reservations made by States Parties (some of them very strong) (Würth, 2003) and (b) ‘none of the 191 nations that ratified the CRC have developed an integrated strategy for its implementation’ (Fernando, 2001: 11; Woll, 2000). This might be due, inter alia, to the following general observations made by many critics of the Convention: [...] Experience with interpreting and implementing the convention in different political, economic and cultural settings has revealed considerable diversity of thinking about children’s rights and how to implement them, even among groups that strongly support the CRC. (Myers, 2001: 39)

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Woll, in her Impact Study on the CRC, concludes that ‘creating a culture in which children can play more visibly important roles remains an enormous challenge’ (Woll, 2000: 32). Consequently, some commentators discussing the Convention argue that it only ‘speaks’ to very few of the children of today (Sall, 2002: 81). The appropriateness of using rights-based strategies in order to address children’s issues is frequently questioned, since rights claim universal application and, therefore, might delegitimize local constructions of childhood. At the core of such challenges to the uncontested nature of the Convention’s principles, thus, lies the question if there are, indeed, certain childhood experiences that might be considered universal in nature and based on biological and psychological laws rather than cultural constructions, or, rather, if there are many childhoods (Boyden, 1997; Frones et al., 1999). Accordingly, it has to be asked to what extent societal values connected to childhood can converge on the normative consensus that is enshrined in such a Convention. Taking these considerations as a starting point, the ensuing analysis generally envisages a historical reconstruction of social facts (Adler, 2002: 109). By means of critical analysis of the discursive practices leading to the coming-into-being of such a forceful and, simultaneously, problematic and supposedly biased document as the CRC, it aims to uncover the emergence of the various elements that contribute to the innovative and yet contested nature of the discourse of child’s rights as it is promoted by the Convention. This does not imply that the Convention is the product of only Western states, although Western states have outweighed any other region of the world in the Working Group as van Bueren claims (van Bueren, 1998: xix). Nonetheless, the totality of the Convention’s provisions embodies an understanding of the ideal of childhood that is based on ideas of children and childhood which largely emerged in industrialized, liberal democracies of the West/North. The texts quoted above evidence that critical assessments of the applicability of the CRC in terms of political priorities and societal values considering children and their rights are already numerous. The actual events and discussions which produced the document, however, have not yet been subject to a thorough analysis, neither from a discourse-analytical standpoint nor from an IR perspective. By investigating the process of meaning-negotiation that produced the Convention, this analysis intends to unveil areas of linguistic and institutional power, which might help in understanding the questionable nature of discursively very forceful international documents, hailed as globally consensual. A dense analysis of the negotiations between states,

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IGOs and non-state actors that were involved in making this document an outstanding one in international politics promises to exhibit processes of inclusion and exclusion and of the interplay between power of discourse and power in discourse. This investigation of influence and exclusion in the international politics of childhood aims to capture the forceful change of perspective contained in the CRC with regard to who is a child, how he or she should be treated and what rights he or she should be granted. Analysing the process of meaning-making, the supposed common sense that emerged and the various elements that had to be expelled from the debate in order not to threaten the consensus might also contribute to an understanding of why this document is increasingly seen as embodying a view on the child whose comprehensiveness and progressiveness pose serious problems.

4.4 Why choose the UN Convention on the Rights of the Child? This case study on the ‘global child’ has been chosen for a variety of reasons that relate to the funnelling model and various analytical tools which, together, form the basis for a critical analysis of discursive practices in an institutional framework. The grounds for choosing this subject refer predominantly to the task of applying a critical discoursetheoretical framework onto an empirical case, where power structures and exclusionary practices are in the analytical spotlight. Central characteristics of the global childhood discourse have inspired the choice of the discourse on childhood and the CRC in particular. Since this study is first and foremost interested in the transformation of powerful global norms in and through discourse, the CRC represents a showcase for a series of negotiations that produced an utterly unexpected, surprising catalogue of norms and provoked a dramatic shift in perspective. At the beginning of negotiations, drafters had only planned to formulate a somewhat legally more unassailable version of the 1959 UN Declaration on the Rights of the Child, ideally within less than one year – in the end they managed to produce the most comprehensive human rights document to date, after a ten-year-long negotiation process. Moreover, while at the beginning, interest for the Convention was rather low and its drafting considered a ‘piece of cake’, attention to the Convention steadily increased, with the text taking on a drastically different shape, resulting in the paradigm shift mentioned above. A first criterion that makes the drafting history of the CRC a more than suitable candidate for the critical discourse analysis envisaged

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here is the fact that the discursive environment related to childhood is characterized by a multiplicity of actors (i.e. parents, teachers, doctors, psychologists, development specialists, advocacy NGOs, youth organizations etc.). What results from this multiplicity of actors involved in and concerned with childhood politics is a diversity of disciplines, linguistic codes and knowledge stocks with regard to the child. Second, the discursive event emphasized (the drafting of the CRC) took place in a clearly demarcated and rather rigid institutional environment. Despite the broad range of actors involved in global childhood politics, this institutional setting was characterized by a rather limited number of participants (some of whom stayed the same for several years) and by rather sparse spillover into the public realm. Third, following an argument by Sikkink, it is also contended that international institutions ‘dealing with human rights are more open to transnational activists than those that deal with trade’ (Sikkink, 2005: 157) and that they are also more open to deliberation, diverging perspectives and value statements than those dealing with questions of distribution. The issue-area of childhood and the debates surrounding the CRC can certainly be characterized as laden with value-questions which, in turn, make public reasoning, the invocation of commonly shared ‘visions’ and norms more likely. With a view to all these elements that appear to be met by the case study chosen here, the following three questions have guided empirical analysis of the discursive shift ‘de l’amour vers le respect’: (1) How was the paradigm shift reflected in agents’ discursive practices? (2) How did both proceduralized and conventionalized discourse enable and constrain discursive practices? How did actors take advantage of the enabling features of the institutional framework, how did they cope with the constraining ones? (3) Which exclusionary forces were at play in producing this unprecedented shared vision of ‘common sense’? The empirical part of this study deals with a single case study for a number of reasons: in the first place, it does not aim at concluding with some quantifiable generalizations about political discourses per se, although, weighted against other research findings that have investigated discursive changes in international negotiations, it might be possible to draw some tentative conclusion concerning certain ‘classes of events’ (King et al., 1994: 43; see also: Van Evera, 1977: 18). The case study contains the following elements which can be considered as falling under the category ‘classes of events’: First, it represents one of the various international debates concerned with human rights and negotiation processes about respective international norms – a contentious

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area which has been discussed as a field of ideological clashes and Western preponderance in numerous publications. Second, it stands in for a debate within the UN context: linguistic, institutional and historical (normative) variables might hold true for other debates in the same context (see especially the texts written about the Torture Convention which was negotiated at the same time as the UN CRC, just across the corridor (Baehr, 1989; Burgers and Danelius, 1988; Leary, 1979)). Third, the case can be considered a prime example for the participation of NGOs in UN governance structures, their tactical moves and argumentation strategies, the learning processes as regards UN structures and their increasing influence in international policy-making, especially in the human rights sector (Holzscheiter, 2005). It might therefore be indicative of the various constraints and opportunities that the institutional framework of the United Nations presents to NGOs. This, albeit tentative, claim to certain aspects of generalization, also falls into line with Abbott’s argument that single case studies are more than just ‘narratives’ and can, indeed, compete with the analytical claim of quantitative multi-case population studies (Abbott, 1992: 62). A single-case approach tries to produce a ‘followable story’ which does not claim to be constantly relevant or providing the reader with universal laws (Abbott, 1992: 68). Still, this is far from asserting that a single-case study can do away with conceptual models on the basis of which to proceed with the analysis. It has already been argued in earlier sections of this book that this is indeed what many of the single-case discourse analyses seem to neglect. The approach followed here, thus, aims at identifying potential patterns within and across specific events and social processes – patterns that relate both to the force of discursive structure and to the agency of interactants (Abbott, 1992: 74). The option for a single case has also been driven by deliberations concerning document collection and interpretation. Qualitative research, especially historiographic or ethno-methodological research (Holstein and Gubrium, 1994),15 involves a very thorough analysis of the material collected and the data chosen for examination. This brings with it several processes of rereading and in-depth reading of the texts on which discourse analysis is based. An interpretation of texts on the basis of the (historical) background knowledge that the researcher has acquired is particularly time-consuming. Instead of following a linear path in interpretation and ‘coding’ of material, the discourse historiographer is confronted with a rather cyclical proceeding in interpretation. Raw data taken from the text samples must be constantly shown in

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its relation with contextual elements (Antaki et al., 2003; Philipps and Hardy, 2002; Titscher et al., 2000). Exploring the semantics of childhood through textual analysis Since discourse analysis is often accused of being some form of random, unsystematic textual analysis, I will, in the following, specify what kind of data was used for analysis and, particularly, how that data could possibly show the different dimensions of discursive power and exclusion that are envisaged in this study. Discourse scholars frequently point to the fact that not every single element of text and talk collected can be considered as belonging to the actual data corpus that figures as the primary source of evidence for the envisaged discourse analysis. There is a significant difference between raw material and the (narrower) data corpus that undergoes the actual, finer analysis. The following section makes the selection process of the data corpus transparent – something that discourse analysis requires in order to better defend its methods against criticism. To avoid bias, it has become common among discourse researchers and those applying other qualitative methods to follow the principle of triangulation in the interpretation of data (Neuman, 1997: 151; Taylor, 2001: 322; Wodak, 2001a: 65, 67). Triangulation in its most general form means seeing the object of investigation from different angles (not necessarily three). In social research this implies that different types of data and different methods of data collection are employed. Concerning this research project and the case study, the material collected and the data interpreted involve: primary text sources (UN texts of various kinds, documenting the negotiation process), information material disseminated by NGOs, UNICEF publications, secondary text sources interpreting the emerging Convention, commentaries and summaries of the International Year of the Child, statistics about child-related issues published at the time of the negotiations and/or used in these, reports and summaries of preparatory conferences for the upcoming convention and of regional conferences, reports and notes of NGO meetings and background interviews with participants. Since it is particularly the geographic origin of the speaker that is, in many cases, vital to his or her argumentation, the empirical discourse-analytical examination of the CRC negotiations (Chapters 6 to 8) will use an abbreviated style of quotation of UN documents that gives the name of the speaker and his or her country of origin, followed by a short reference to the UN document. The full reference including document number and date will be listed in the bibliography using the Oxford Standard for Citation of Legal

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Authorities (Faculty of Law, 2006). The variety of the documents used shall help to consider the semantic fields of ‘child’, ‘childhood’ and ‘children’s rights’ from various perspectives: from inside the institutionalized communicative event or context of situation (reports of the sessions, interviews with state and non-state participants), from outside the institutionalized context of situation (regional conferences, dissident voices, newspaper comments, reporting of NGOs), from a more general ‘public’ or scientific perspective, and under aspects of regional, cultural differences in defining childhood. The primary data selected for this case study are considered indicative of the various issues of contestation, various argumentation patterns and discursive clashes in the course of the process of meaningnegotiation. The full documentation of the CRC drafting and accompanying primary material is also taken to evidence the adaptation of actors’ argumentation to linguistic, normative, historical and institutional constraints and, ultimately, to account for the marginalization of certain conceptions, interpretation, topics or participants in this local policy arrangement (Arts, 2001). In the process of cyclical interpretation, the context or background information continuously supports processes of defining and redefining the data selected for closer linguistic investigation. Doing discourse research also involves specifying the type of texts (genres) used for analysis. Different genres of texts convey different types of linguistic data and the selection of linguistic analytical tools depends heavily on the character of the genre(s) chosen. It would, for example, be unwise to search a medical report for metaphors of symbols (though it might still contain some), whereas the report might very likely reveal a lot about the subject position of the patient (depending on how the patient is positioned syntactically) or the discursively constructed relation of dominance between the doctor and the patient. On the other hand, media reporting on specific events and debates might be heavily laden with metaphors, jargon, rhetorical means, allegories and allusions, all designed to disclose standpoints and frontlines in argumentation and to offer very openly politically biased positions. Opposed to this, the material used for this case study is largely taken from UN official documents, which implies that one might not find such a richness in rhetorical means and the same degree of bluntness, opposition, honesty, simplification and defamation as one might encounter in media discourses. Instead, the researcher is confronted with diplomatic linguistic rules, delicate expression of controversial topics and a rather ‘emotionless’ language. However, rhetoric analysis

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can still be conducted, though on a more general level, investigating commonly used frames of reference, the construction of matter-of-facts, instances of normative common sense and certain patterns of argumentation which can be identified either as marginalized or as dominant. Notwithstanding the fact that the drafting of the CRC is a particularly well-documented policy-making process within the framework of the United Nations, it is undeniable that the data used for this analysis of discursive practices also bring with it certain limitations. First, most of the documents are reproductions (often shortened) of written speeches – they are not ‘natural’ data (Keller, 2001: 137; Potter, 2001: 322). They do not reproduce the dialogical character of the debates (in contrast to national parliamentary debates which often reproduce interventions, hesitations, applause, elliptical sentences etc.). Documents are repeatedly presented in the form of summaries, which means that individual contributions to the debate are sometimes outlined and sometimes not, especially in cases in which several delegates have spoken in favour of a certain formulation, item or idea. Considering that most of the data collected have not been available electronically and that the most important reports and working papers have been issued well before the United Nations started disseminating information material over the internet, document collection, reproduction and analytical processing has been a rather complex process. Although, of course, observing participation in negotiations is the non plus ultra when interested in argumentation strategies and the conversational dynamics that characterize negotiations between state and non-state actors, this is a privilege that only very few academic researchers have had so far. When doing research on a historical case such as the CRC, participant observation is simply not an option. In order to account for discursive practices retrospectively, thus, one has to rely on other people’s comments and observations on the process. To this end, several background interviews were conducted with former participants in the drafting process.16 Even when evidence taken from documents is complemented by interviewee’s accounts of the drafting process, it has to be kept in mind that this drafting process started some 31 years ago and that, therefore, the memories of those who have participated are fading. One of the most important contributors to the drafting, Adam Lopatka, the chairman of the Working Group, died in 2003. However, there exist personal accounts of the drafting process that convey a picture of the specific social setting, and the interpersonal and institutional dynamics that characterized the process.17

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A last, but fundamental, methodological remark concerns the issue of secrecy and negotiations behind closed doors. This, obviously, is a thorn in the side of all scholars interested in discursive processes, bargaining and reasoning. Some sceptics claim that ‘true’ intentions are only revealed in those settings that are removed from public surveillance and politicians’ accountability towards the public at large. In the same vein, it is sometimes upheld that secrecy favours highquality deliberation.18 However, in general there are always some blind spots that political discourse analysts will not be aware of because they have not been recorded (even if they combine their textual analysis with in-depth interviews or questionnaires). This becomes an issue for concern the longer one travels back in history, with crucial interview partners having a scattered memory of the decision-making process in question. Second, alas, there is an abundance of communication that goes unnoticed by the general public, researcher or the tape recorder. And, finally, pragmatically, one has to say that discourse analysts necessarily deal with what is ‘there’ and try to bring to light as many relevant documents and sources connected to their research question as possible instead of racking their brains over everything that might possibly have been said. Against the background of the funnelling model developed in Chapter 3, the analysis of the global childhood discourse will proceed as follows (see Figure 4.1). The subsequent chapter entails a brief sociogenesis19 of childhood, particularly with regard to how the

GLOBAL CONTEXT Chapter 5 (Child images and international norms prior to 1978)

IMMEDIATE SOCIOPOLITICAL CONTEXT Part III: Chapter 6 Time Line

Prior to 1978

1978

LOCAL EVENT Part III: Chapters 7 & 8 1979

1989

Figure 4.1 Proceedings of analysis

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interests and fates of children have gradually become represented also on a global level. Particular emphasis will be placed on the twentieth century as the ‘Century of the Child’ and on the various factors that contributed both to an internationalization and a standardization of childhood. Ultimately, Chapter 5 will establish various discursive repertoires that have been historically connected to particular images of the child. Here, it will also be shown how various international treaties have reflected these childhood images and discursive repertoires. Chapter 5, thus, sheds light on the institutionalization of particular child images in international law-making. As such, it aims at uncovering how certain child images have crystallized into international norms. Part III of this book (Chapters 6 to 8), finally, represents the most important part of the empirical analysis. Here, analysis will move to the local context of the UN Commission on Human Rights and its Working Group within which the UN Convention on the Rights of the Child has been drafted. Chapter 6 will shed light on the various parameters of both the global (historical child images) and local (institutional environment) context that enabled as well as constrained discursive practices. Chapters 7 and 8, in turn, present the core analysis of the data corpus documenting the coming-into-being of the CRC, in the course of which the interplay between power in discourse and power of discourse in the transformation of a global childhood paradigm shall be exposed.

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5 Discourses of Childhood – the ‘Communicative Ecology’1 of the Child

An attempt to trace back the history of childhood that governs a contemporary global vision of how a child should grow up in order to become a happy, healthy and educated adult must confront the question that has been driving historians apart for some considerable time now. Did past societies perceive of younger members of the society as children or minors – that is, as a class of human beings fundamentally different from adults – and did they possess concepts of childhood similar to those prevalent in Western industrialized societies of today? Or are we rather witnessing a historically specific form of modern childhood that crystallized into a childhood norm in Western societies in the course of the eighteenth and nineteenth centuries (Prout and Allison, 1997: 17)? The most seminal historical accounts dealing with the ‘history of childhood’ in Europe – Philippe Ariès L’Enfant et la Vie Familiale sous l’Ancien Régime (1973) and Lloyd de Mause’ The History of Childhood (1976)2 – present us with conflicting accounts of when children were first perceived as a distinct social category in society and how they were treated by adults over the past centuries.3 They also disagree on the question of childhood as a separate life stage. Ariès considers the concept of childhood as a distinct phase in life an invention of the sixteenth century, fortified by the rise of the bourgeoisie in the eighteenth and nineteenth centuries. De Mause claims that it is not childhood that has been subject to changing perceptions, but that only parents’ behaviour to their children has changed dramatically (see: James and Prout, 1997b: 17). Even though both authors draw attention to the fact that childhood is not a ‘natural’ phenomenon (in the sense that a ‘child’ 99

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has always been a child only by means of its physical and psychological traits), they nevertheless construct their own story of childhood. This is basically a story ‘of a civilising journey from infanticide, cruelty and neglect to a time of love, care and attention’ (Stainton Rogers and Stainton Rogers, 1992: 65). De Mause conceives of the history of childhood predominantly as a ‘nightmare from which we have only recently begun to awaken’ (de Mause, 1976: 1). Circumscribing pre-modern approaches towards children as barbaric, he gives prominence to a view that equates any approach to children that diverges from love and care in the modern sense with uncivilized, pre-modern behaviour. De Mause pictures preseventeenth-century European societies as societies in which child murder was considered a socially acceptable practice (see also: Depaepe, 1997: 46). Ariès, at the same time more neutral regarding pre-modern times and more critical towards the ideal vision of childhood formulated in the twentieth century, is particularly interested in those developments that led to seeing the ideal child as a ‘treasure’ that has to be nurtured, protected from the troubles of the world and kept smiling by adults. He focuses on the privatization of childhood and the emergence of a strict separation of children’s and adults’ worlds by which the child’s space was transferred first from the street and then the living room to the playroom (Depaepe, 1997: 48). Although there seems to be considerable dispute about the perception of children by adults/parents in Europe prior to the sixteenth century (de Mause, 1977), it is rather uncontested that the Western concept of ‘childhood’ as a separate life sphere secluded from the adult world (accompanied by the notion of the ‘child’ as explicitly distinct and protected from the (evil) adult realm) is a creation of the bourgeoisie of the nineteenth century and rests upon philosophical, medical and economic influences that began in the course of the sixteenth century (Ariès, 1962; Cunningham, 1995).

5.1

The three historical images of childhood

Following the few historical accounts of the modern history of the concept of childhood and the social category of children, it appears that among the earliest approaches towards children (defined as non-adults) was that of unrestricted paternalism that saw the child as his or her father’s property and that saw a father’s authority as a zone devoid of any social or legal control. The guiding principle of the Roman Empire, the patria potestas, took hold for considerable time (Weisberg, 1978: 45–46). Maltreatment of children by their father was socially accepted

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almost with impunity; he could dispose of his children and their work force much like goods (Hodgson, 1992: 254). That there were no public regulations or restrictions for the treatment and education of children indicates that children were totally confined to the private sphere where they were the ‘mute’ property of their father. They were often likened to other social groups thought to be inferior such as women, the ‘insane’, drunkards or even animals (Tucker, 1977: 326). Not only was a child completely at the mercy of his or her father, he or she was also perceived to be essentially guided by evil intentions. The first political writings which addressed this ‘nature’ of the child as unruly and linked it to questions of public ‘law and order’ were the writings of Thomas Hobbes. Here, children were conceived as inherently demonic and evil, acquiring negative behavioural habits if not controlled by their parents’ guidance and (often violent) education. Likewise children, fools, and madmen that have no use of reason, may be personated by guardians, or curators; but can be no authors, during that time, of any action done by them, longer than, when they shall recover the use of reason, they shall judge the same reasonable. Yet during the folly, he that hath the right of governing them, may give authority to the guardian. (Hobbes, 1957: 107) Children epitomized the ‘state of nature’, a world of savagery, full of mischief and violence and they were to be led forcefully onto the path of ‘civilization’. Parents and public authorities, conversely, represented the authority to tame these children and to lead them towards a state of reasoned behaviour and civilized conduct. This perception gave rise to the now widespread educational measures for difficult children and some sort of institutionalized cruelty of parents towards their children at the turn of the twentieth century. Repressive practices towards children, first within the secluded sphere of private family life, later through State institutions and the church, have resulted from this child image that brings with it a conception of childhood as a phase of life in which the wicked and malicious potential of human beings has to be suppressed. While the image of the evil child constructs the child as an immature and irrational human being in terms of morality, sin and guilt, an understanding of the infant as an immanent rational adult shares this focus on the realization of an innate potential, but places it rather in the context of intellectual process and development. Children are viewed as intellectually deficient and lacking full maturity (Fionda,

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2001: 12) – however, they are primarily portrayed as bearers of unrealized capabilities and promises of becoming knowledgeable, responsible citizens. This ‘adult-to-be’ perspective can be traced back to the writings of John Locke and his conception of the ‘immanent child’ – a human being with potential – incomplete and ‘yet to be’ – which is utterly ignorant and unreasonable and moves towards reason while becoming an adult (Jenks, 2001: 23–29; McGillivray, 1997; Verhellen, 1994: 13). In such a perspective, the individual is only seen as subjected to collective moral and intellectual progress (of society, of humanity as a whole) and, with ‘“the future” being the all-important consideration, present wellbeing [has] to be sacrificed more and more to the dictates of the future’ (Verhellen, 1997: 13). This Enlightenment conception of the immanent child can be found again in early socialization models – Margaret Mead and Talcott Parsons being famous theoreticians thereof – which ‘share a notion of childhood as training ground for adulthood’ (Heinze, 2000: 10). Adulthood remains the goal of going through several stages, not of individual development as in Freud and Piaget, but of social development and adaptation to adult environment and values (Stainton Rogers and Stainton Rogers, 1992: 7). Both the immanent child and the evil child images share an understanding of children as largely human beings who should be guided towards adulthood, responsibility and rationality as quickly and straightforwardly as possible. Archard differentiates, in this regard, between childhood images that see children as ‘being’ in their own right and those that see them as ‘becoming’ (Archard, 2001: 43). The powerful childhood image that sees children as being, is the idea of the innocent child, which emerged both with the Romanticism of the eighteenth century and was brought to public awareness particularly by Rousseau and his outstanding book on education ‘Emile’ (Ariès, 1962: chapter 5). Rousseau opened this book with an assumption that is common to a perception of the child as essentially good, angelic and without sins: Childhood is unknown. [...] The wisest men concentrate on what it is important for men to know without considering what children are in a condition to learn. They are always seeking the man in the child without thinking of what he is before being a man.4 Rousseau’s attitude towards children (save his own!) consisted in promoting their greatest possible liberty from constraints, leaving them untamed, natural and innocent. This nineteenth-century image of

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childhood is exemplified in the numerous institutions for child-centred education and for responses to a child’s particular needs (kindergarten, playgrounds) and the philosophies of Rudolf Steiner, Montessori and A.S. Neill’s utopia of Summerhill. Lewis Carroll’s Alice in Wonderland, Astrid Lindgren’s Pippi Longstocking or Barrie’s Peter Pan have given a famous literary shape to this view of children and childhood. At the heart of this image of the child as innocent and pure lies the conviction that children should be encouraged in their special status, in their specific perspective on the world and in the ‘laws’ they follow – most notably their ‘irrationality’, savagery, curiosity and their desires. Correspondingly, Rousseau’s Emile was both granted (revolutionary) liberties and at the same time as far as possible shunned from the ills of the adult world. While the ‘evil child’ purported the understanding that the adult world was the ideal, Rousseau’s perspective turned this argument upside-down, claiming that childhood was the ideal and children blessed with a natural goodness (Jenks, 2001: 26).

5.2 The ideal of the protected sphere of happiness Ariès deduces the emergence of new perspectives and social practices related to ‘the awareness of the particular nature of childhood’ (Ariès, 1962: 125) from paintings of the fifteenth and sixteenth centuries where, for the first time, adults seemed to be enthralled by the ‘loveliness of children’. He takes the first pictures of dead infants and the centrality of the child in family pictures as proof of the growing ‘value’ of children and parents’ emotional attachment to them (Ariès, 1962: 44–45). The emergence of the domestic ideal with the bourgeoisie of the nineteenth century reinforced an understanding of childhood as a protected and sacred sphere – the childhood ideal as we know it today was born. With early industrialization processes setting in and living standards rising, the ideal of the protected sphere of childhood started to dominate also in working-class segments of the population. Towards the end of the nineteenth century, parents, the church and public institutions gradually conceived of children no longer as ‘young adults’ or of infants and young people as unimportant and insane members of society, but as children – who as such needed special assistance due to their helplessness and vulnerability (Robertson, 1977: 596, 597). This ‘new’ appreciation of children went hand in hand with a radical transformation of society spurred by the process of industrialization – the emerging affluent middle class no longer needed to dispose of their children as work force or to see them as an economic asset, instead they valued

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their children precisely for their ‘valuelessness’ (most importantly: Zelizer, 1985). Finally, the near-realization of the ideal of universal education in the course of the nineteenth century had the effect that children were to an ever-growing extent kept off from work and streets. This was also facilitated by new legislation concerning child labour, such as, for instance, the 1878 Factory Act by the British Parliament, which prohibited the employment of any child under the age of ten and provided for compulsory education of all children up to ten years of age. Among the first conventions adopted by the International Labour Organization (ILO) that was founded in 1919 was Convention No. 5, the Minimum Age Convention that prohibited the work of children under the age of 14 in industrial establishments. Education, domestication and protection from work were the new parameters for childhood development. Even children who still had to work were offered education in Sunday schools (Sommerville, 1982: 193). At the beginning of the twentieth century, ultimately, a change of attitudes towards children was firmly rooted in societal practices across Europe which was accompanied by the formulation of child labour laws, changes in family structure that came with the gradually improving status of women (and mothers), and the increasing interference of State regulations with formerly private family and child matters. However, although the socio-economic, demographic and scientific developments roughly outlined here engendered the separation of children from the adult world this has not resulted in a uniform view on how to perceive this distinct social class – the ‘child’ as defined by adult society has witnessed a range of distinct representations which have competed and continue to compete with each other in modern approaches towards children and childhood. All three of the different conceptions of children described above still find their contemporary counterparts in Western societies of today.

5.3 The twentieth century: Internationalization and institutionalization If the centuries prior to the twentieth century witnessed the gradually increasing prominence of the child in family and societal life as well as the growing belief that childhood ought to be treated as a sacred and secluded phase of personal development, the twentieth century was characterized by two large developments. First, the institutionalization of childhood and second, the politicization of childhood as

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a consequence of which children also came to the fore as subjects of national and international politics. Throughout national and international policy- and law-making during the twentieth century, the various child images described above both competed with and, in certain dimensions, complemented each other. In the twentieth century we can observe increasing concern about the well-being of children and the gradual prominence of a specifically modern, liberal concept of ‘happy childhood’, which comprises as its core components love, care, education, play, recreation, personal development, furthering of talents and protection from work.5 Parallel to the gradual globalization of that concept, childhood also turns into one of the ‘most intensively governed sectors of personal existence’ (Jenks, 1995: 180; McGillivray, 1997). Looking back to the Western public debate about children and their needs from a twenty-first century perspective, it is undeniable that the past 100 years have seen an ever-growing concern for the special universe of children and an increasing desire to make childhood a ‘safe, happy and protected’ phase of life for as many children as possible (Boyden, 1997: 192). Paradoxically, as concern for children increased both in public and private spheres, it became inevitable that State regulations and policy programmes also ‘intruded’ on the private sphere in order to protect children from harm and intervened in areas such as child abuse, neglect, adoption, or teachers’ violence towards children. Thus, public management of the life of children (which is intimately bound to one of the most private spheres of societal life – the family) grew to the same extent as the life-stage of childhood was given a new value. Multiple facets of childhood and youth (before all education, leisure, health matters and juvenile justice) were opened up to public interventions which aimed both at the standardization of childhood as well as at the realization of a minor’s personal capabilities and talent. Verhellen claims that in this process children have become ‘more and more the property of the state and less and less the private property of their fathers/parents’ (Verhellen, 1997: 28). Children and peace – early internationalization of child matters The internationalization of child matters was, from the beginning, a project instigated by Western European states. Ellen Key’s then famous book The Century of the Child already hinted at a widespread understanding of the child as the harbinger of a better world, of education as the means to raise better and more reasonable generations (Key, 1909). One of the earliest international movements for children, in fact, subscribed to the same beliefs: the Save the Children International

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Union (SCIU) which was founded in 1920 by Eglantyne Jebb and which was among the leading agents in League of Nations activities relating to the protection of children. However, since the League of Nations grew out of the devastating experience of the First World War and since the SCIU was largely preoccupied with the protection of children from the evils of war, the dominant topos within this particular and first international debate on the protection of children under international law was ‘peace’.6 Among the most famous sentences uttered by Eglantyne Jebb was: ‘I have no enemies under the age of 11’ (quoted in: Clark, 1996: 61). Children were seen as guarantors of peace and educating them to become peaceful and tolerant members of society was given the highest priority. Children, in fact, were chosen as the ‘most important rallying object of the future work [of the League of Nations] towards international harmony’ (Marshall, 1999: 138). This all the more so since children were seen as some kind of neutral terrain on whose protection all of the States Parties to the League of Nations could agree. National politics as well as religious conflicts were taken to be absent in the common concern for the child victims of the war and future generations. With the engagement of the League of Nations, the child was discovered as a moral subject in international politics. Earlier idealistic notions of the child both as the imminent rational adult (Locke) as well as of childhood as a zone of peace (Rousseau) were reflected in this first international concern for children. Paradoxically, the child’s introduction into international high politics precisely happened for the reason that it was seen as an a-political subject (in the sense that political conflicts should not arise): ‘[...] the emphasis on children provided a low common denominator for otherwise embattled agents’ (Marshall, 1999: 122). During the early years of the League of Nations, various national delegates argued that the national popularity of child welfare issues spoke in favour of an internationalization of this issue. Belgium was the first to propose the project of an international association of child welfare. It was joined by Switzerland and France (Marshall, 1999: 114–116). In 1912, the Swiss Federal Department on Justice and Police envisaged the creation of an Office international de protection de l’enfance, arguing that ‘the idea of child protection triumphed more and more in the civilized world, to help defend abroad the rights of children against parents who forgot their duties’ (quoted in: Marshall, 1999: 115). At the Second Congress for the Promotion of Child Welfare in summer 1921, 1200 participants of 31 countries were present.

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Children in science – the universal experience and the average child A twentieth-century trend that contributed to the universalization of childhood relates to the child as a target of scientific exploration. All of the early child images with their religious and philosophical background have transformed to some extent or another into various new academic disciplines. As such they have been gradually converted into ‘scientific’ perspectives on the child and childhood. The ‘evil child’ was reformulated by Freud into a psychoanalytical theory of the ‘unconscious child’, very much related to the sexuality it is unconscious of (see particularly part II on ‘infantile sexuality’ in: Freud, 2000). With the advent of paediatrics, with psychoanalysis and developmental psychology, the special world and physical state of children occupied an ever more prominent place in the natural and human sciences. Children advanced from neglected and maltreated members of society to scientific objects of study in their own right (James and James, 2001: 26). Perhaps, this increasing scientific interest in children was both the greatest driving force and the greatest outcome of the twentieth century as the Century of the Child. From the late eighteenth century onwards an enormous stock of knowledge concerning the physical and psychological development, socialization, educational, nutritional and emotional needs of children was built up through systematic and extensive studies (Hendrick, 1997: 39; Heywood, 2004: 3). Unquestionably one of the pioneers of this movement towards the scientification, universalization and standardization of childhood was the French psychologist Jean Piaget, laying out his theory on child development in Psychology and Epistemology (Piaget, 1972). Piaget conceptualizes childhood and youth as a sequence of predetermined developmental stages7 that are more or less universal for all human beings, ultimately leading towards logical competence. His developmental model is based on the fundamental assumption that there is a ‘natural’, that is, average and normal way for any child to grow up and to develop his or her physical and mental capabilities. Piaget’s model of childhood is evolutionary in the sense that the progress from child to adult is an improvement: from irrational to rational, from simplicity to complexity, from savagery to conduct (Prout and Allison, 1997: 10). Children, in this perspective, are first and foremost seen in their individual development – the influence of their social and cultural surroundings is largely ignored. Childhood is a natural, not a social phenomenon (Jenks, 2001: 30) – which makes it possible to claim that child development is an experience that transcends cultures and social milieus.

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108 Children’s Rights in International Politics

While children have gradually asserted their own scientific ‘space’ in medicine, psychology and sociology, it is often argued that, although extensively studied and scrutinized in science, children only marginally figure in official statistics and social accounting methods. A leading proponent of this view is Qvortrup who claims that ‘[t]his marginality [is] the result of a material devaluation but emotional elevation of “the child”’ (James and Prout, 1997b: 3; Qvortrup, 1997b). Another ‘absence’ in scientific approaches towards childhood is even more blatant. While scientific efforts to study ‘the child’ in industrialized countries of Europe and Northern America have proliferated during the past century, contextualized studies of child and youth culture and research on the concept of child and childhood in non-Western societies are rather sparse.8 In fact, most of the studies on cultural idiosyncrasies of childhood have emerged only after the CRC has entered into force (see the last section of this chapter). The rather marginal position that children outside the US-European context occupy in scientific studies is evidenced, for example, in Infancy and Culture: A Review and Source Book (Fitzgerald et al., 1999), where numerous contributions discussing cultural spheres other than the European and Northern American ones come to the conclusion that the prime object of scientific interest is still the average, white, middle-class Western child (Fitzgerald, 1999: 3). Barnes Johnson contends that Australian and New Zealander infancy has been reflected in only three publications – still worse is the situation of indigenous (i.e. Aboriginal) children whose developmental conditions are even less covered by systematic studies (Barnes Johnson, 1999: 138–139). Johnson, reviewing scientific studies targeting infants of African descent in Northern America, criticizes that most of the publications relate to children living in severe socio-economic conditions, while the ‘average’ childhood of children of Afro-American ethnic origin is totally neglected (Johnson, 1999b: 22–23). African children in Africa, although representing a significant part of the world’s child population are even less well studied. This, according to Johnson, appears to be all the more surprising, since the little research done seems to validate that ‘infants and children are central to African cultures’ (Johnson, 1999a: 107). Johnson suspects that either African parents are reluctant to expose their children to studies that are based on Western constructions of childhood or that, indeed, researchers generally attach little significance to infant development in Africa (Johnson, 1999a: 109). Casas argues that not only has child research been mainly produced in industrialized countries, but that it

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is also predominantly consumed in these parts of the world. What is more, research published in English seems to attract much more academic and public interest than research done in other languages. He concludes that the greater part of research production, in fact, only just reaches non-industrialized countries, if at all. In view of the fact that child research capacities are still in their infancy, ‘[t]he western culture bias is an important limit to understand children’s situation in other cultures’ (Casas, 1998). ‘Kiddy-Libbers’9 and the 1968 child’s rights discourse While the various perspectives reflecting both the internationalization as well as the universalization of childhood still largely share the common assumption that the child has to be protected (from war, from the evils of the adult world, from exploitation), the second half of the twentieth century saw the emergence of a social movement which placed the child as a social political agent at the centre of their campaigns. The youngest and most challenging dimension of the contemporary childhood debate surfaced: child emancipation (Stainton Rogers and Stainton Rogers, 1992: 81). It brought with it another child image: the evolving child. John Holt, Richard Farson, H. Cohen or A.S. Neill – often called child liberationists – were arguing that children should be seen as full-fledged citizens (not just full-fledged adults) with all the civil, political and economic rights that resulted from this. They saw themselves in stark opposition to the ‘child-saving movement’: salvation, they claimed, implied intervention in and control of a child’s life. The titles of their seminal books speak for themselves: Escape from Childhood (Holt, 1974), Birthrights (Farson, 1974), Summerhill: A Radical Approach to Child Rearing (Neill, 1973) or Equal Rights for Children (Cohen, 1980). This rather drastic break with prevailing protectionist attitudes towards children went hand in hand with the civil rights movement of the late 1960s, the opposition to the Vietnam War and the campus riots in Europe and the United States. Student riots in major universities of Western Europe and the United States were seeping through to schools where calls for participatory democracy and non-authoritarian education were seized by student organizations. The movement that propagated the right of children to be treated like adults and, thus, to be liberated from paternalist protection was inspired by other social movements such as the civil rights movement, the women’s movement or the pleas for tolerance with regard to minorities or homosexuals (Depaepe, 1997: 62; Mnookin, 1978: 3; Stainton Rogers and Stainton Rogers, 1992: 81; Wringe, 1981: 5–20).

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However, while many of those who have discussed the origins of the child liberation discourse saw its emergence as a spillover effect of political, anti-authoritarian movements that targeted public institutions (the State, the school) on private matters (parental authority), this emancipatory debate was also inspired by events that happened in the private seclusion of the family. During the 1960s, one of the ‘hottest topics’ in public debates in the United States, and also the United Kingdom and the rest of Europe was the issue of child abuse and neglect. It has been repeatedly claimed that this was the first time ever that ‘wide public interest was attracted by the complex and emotional problems related to protecting children from physical maltreatment by their own parents’ (Thomas quoted in: Garinger, 1977: 28). Scientific endorsement for this public outcry on behalf of child victims of intra-familial maltreatment and sexual abuse was delivered by the so-called battered child syndrome identified by C. Henry Kempe and others and published in 1962 (Flekkøy, 1993: 97; Kempe et al., 1962). The identification of this syndrome led to a significant increase in the cases of child abuse/neglect reported each year (Garinger, 1977: 31).10 Garinger, in her essay on child protection policies in the United States during the 1970s, reports that by 1967, in the United States, ‘every state had enacted so-called child abuse reporting statutes’ (Garinger, 1977: 30). Following this sudden uproar concerning the private family sphere, calls for child emancipation and for an active participation of the child in decisions concerning his or her best interests were getting louder and more widespread. Seriously listening to children and acknowledging their perspectives, it was argued, would contribute to seizing the individual child from the potentially dangerous privacy of the family. Rather than protecting this ‘sacred family sphere’, thus, child liberationists called for better monitoring of children’s family situation and for possibilities of the State to protect the child and his or her integrity even from his or her own biological family. Parental authority over their children and their virtually unrestricted power over their child increasingly came under attack. The child had to be given ‘a voice’ for selfdefence, a possibility to go public with the injustices he or she suffered behind the closed doors of the home. While moderate defenders of child emancipation were arguing in favour of the mature child’s view being considered in judicial decisions, therefore making a case for a child’s right to be heard in certain cases, the authors mentioned above were taking these liberal rights of the child to its extreme, pleading for the liberation of all children from the constraints of adults, educational systems and the State (Farson,

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1974). In 1980, at the outset of the drafting of the UN Convention on the Rights of the Child, Cohen claimed that ‘[...] it is time to extend all of the rights which adults in our society now enjoy to children as well’ (Cohen, 1980: vii). Protective rights for children were seen as mirroring paternalistic attitudes which children must be liberated from (Cohen, 1980: 9). Holt’s alternative children’s charter promoted such children’s rights as the right to work for money, the right to lead and manage one’s life independently, the right to private life or the right to travel, live outside ‘home’ and choose one’s one residence. Cohen focuses on political rights in the United States, such as the [...] right to run for elective offices which do not have special constitutional age requirements over and above the age of majority; the right to initiate petitions, referenda, and recall elections; the right to organize into legitimate political parties or join already existing ones as full members; and the right of access to all lobbying channels now open to adults. (Cohen, 1980: 104) Even if these petitions on behalf of children can be seen as exaggerated and drastic and might cause the reader to shake his or her head, it should be kept in mind that the books and pamphlets mentioned here attracted rather widespread attention and that certain of their propositions were reflected in societal practices such as the anti-authoritarian education practised in 1968 Germany which aimed at educating children to disobedience, especially with regard to public authorities. On a less radical level, the establishment of pupil’s representatives in schools reflected the widespread opposition to authoritarian educational measures and the possibility of involvement for adolescents in matters that were of direct concern to them (Wringe, 1981). Undoubtedly, the children’s liberationists, although confronted with widespread criticism and rejection, contributed to certain, less extreme tendencies to grant children of a certain age and maturity a say in matters that affected them directly. Freeman claims that from the 1960s onwards the ‘emphasis shifted from protection to autonomy, from nurturance to self-determination, from welfare to justice’ (Freeman and Veerman, 1992: 3). This shift in perspective was also reflected in a few landmark court cases in US and UK jurisdiction, most notable the Gillick case in the United Kingdom,11 Wisconsin vs Yoder and In re Gault in the United States. These trials evidenced that a former concern for the protection of children and the priority given to the views and beliefs of a child’s parents and legal guardians was slowly replaced by a view

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that stressed the protection of a child’s rights and personal freedoms, most notably his or her right to be heard. Reviewing these landmark court decisions, Mnookin, one of the leading theorists of family law, contended that these cases, in their ‘assignment of roles and authority for children of various ages gives expression to society’s perception of the child’s humanity and importance as an individual’ (Mnookin, 1978: 3). An emphasis on the right of the child to self-determination complementing his or her right to be nurtured and protected paralleled other liberation movements, seeking to replace the object-character of the child by an understanding of children as political and legal subjects. The child’s identity in public and political discourse gradually shifted from an object of concern to a social agent (Sall, 2002: 82).

5.4

The social construction of childhood

During the past decade, various academic disciplines have addressed the circumstance outlined above, namely that concepts of child and childhood, social and cultural approaches towards children appear to be extensively studied and commented in industrialized countries of the North/West, while the specificities of minor human beings in other cultural spheres seem to be somehow absent in literature. Some have concluded that the silence in literature is already an indicator of the global hegemony of Western views of ‘childhood’ overshadowing local constructions (Balagopalan, 2002; Burr, 2002); others see it as an outcome of applying a Western model of ideal childhood onto non-Western societies. Still others take the lacuna in literature as an indicator for the absence of a concept of childhood in non-Western cultures. It is striking that among the many texts addressing the dominance of the Western model and the poor accounts of other conceptions of childhood, one finds rather few and scattered concrete examples for diverging perspectives on the ‘child’. However, some authors, more constructively, try to address dimensions of childhood and definitions of the child that diverge from the twentieth-century trend outlined above, by claiming to approach the issue in a cultural-sensitive manner, advancing a social constructionist view. A vast majority of theoretical approaches to the phenomenon of childhood have, indeed, meanwhile adopted an originally sociological perspective which views childhood as an essentially contested and as such deeply constructed category of social life (see for instance: Ackroyd and Pilkington, 1999; Balagopalan, 2002; Boyden, 1997; Freeman and Veerman, 1992; James and James, 1999; James and Prout, 1997a; Jenks,

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2001; Kjorholt, 2002; McGillivray, 1997; Nieuwenhuys, 1998; Prout and Allison, 1997; Sall, 2002; Stainton Rogers and Stainton Rogers, 1992; Verhellen, 1994). What follows from this is the epistemological credo that images of childhood are subject to cultural and temporal contingency and, therefore, can only be investigated when taking into account their embedding in time and space: ‘The understanding of childhood as a set of culturally and socially shaped structures or patterns allows for a further differentiation of childhood into a variety of childhoods’ (Frones et al., 1999: 163). These approaches, thus, connect to the critical historiographic endeavour (as started by Ariès) of questioning the universal experience of childhood and the global applicability of concepts of childhood rooted in Western processes of industrialization and modernization. In documents about the international development of childhood as a social category, the common reference to historical accounts of childhood within Western societies implies that this development may have been witnessed by the Western hemisphere during the twentieth century but may not be true for other cultural spaces. There is even evidence that in other cultural contexts children and childhood were recognized as a separate social category much earlier than in Europe/United States (Kinney, 1995; Neary, 2002). However, conceptions of childhood and children as a social category within culture spheres other than those in North America and Western Europe have been only marginally subject to ethnological or sociological analysis. This can imply several things: (a) the Eurocentric view is unique and scientifically exploring the child is proof of the value placed on children, (b) scholars from Northern, industrialized nations have traditionally stuck to investigating the conception of Western childhoods, (c) the sociology of childhood is a tradition which has largely developed in a European context or (d) other cultural spheres do not consider childhood and its ideological dimensions to be a subject for investigation. In fact, Trommsdorff argues for the field of anthropology that cross-cultural comparative studies about childhood and adolescence are exceptionally rare and that most studies investigating the development and socialization of children originate in the ‘West’. The results of these studies, thus, only apply to a small part of ‘humanity’ and can ‘hardly be generalized’ (Trommsdorff, 1995b: 9). Observations like these have contributed to a strong social constructionist movement in recent childhood research, which struggles for the recognition of conceptions of the child and childhood fundamentally different from those propagated by Western scientists. Those discussing

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African conceptions of childhood and African childhood experiences (Armstrong, 1995; Balagopalan, 2002; Barsh, 1989; Boyden, 1997; Fottrell, 2000; Freeman and Veerman, 1992; Ncube, 1998b; OkaforObasi, 2001; Rwezaura, 1998a; Sall, 2002; Thompson, 1992) mainly build upon the notion of the extended family, on early responsibilities and duties of children towards that larger community, on the issue of street children (without the protective environment of the home) and on child work as a daily experience of a majority of children on the continent. Those addressing Asian childhood concepts (Balagopalan, 2002; Burr, 2002; Fitzgerald, 1999; Goonesekere, 1997; Kinney, 1995; Neary, 2002; Rädda Barnen Thailand, 1991) also build upon the notion of community, however with a slightly different focus. They suggest that Asian children are not perceived – and do not perceive themselves – as individual human beings striving for autonomy but rather as part of a larger group to which they constantly refer. Even in the few cases where distinct childhood experiences in non-Western cultural spheres are identified it seems that these experiences are measured against what is taken to be a universal childhood ideal – the ideal of protection, home and happiness – rather than valued in their own right (Boyden, 1997; Nieuwenhuys, 1998). The following discussion of how particular child images inspired a growing international child-protection regime during the twentieth century and how they influenced international standards that sought to protect the child as a particular vulnerable human being will confirm the centrality of ‘modern’ notions of childhood in international public debate. Critically reviewing the marginalization of diverging understandings of childhood in the drafting of the CRC in Chapter 6 will further support the argument that Northern ideals of childhood are the main driving force behind global policy-making on behalf of children.

5.5 The institutionalization of childhood in international politics and law As much as children’s rights have been ‘a slogan in search for a definition’ in 1973 (Rodham, 1973: 487), they have likewise been appropriated by the most diverse proponents of children’s rights and were used as a catchphrase for a whole range of quite different approaches towards children and their well-being. In the light of the sociogenesis of childhood in international politics outlined above, it appears that childhood classifies as a highly ideological and value-laden issue and that the twentieth-century ideal of childhood has treated the child

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mainly as an objectified ‘moral good’ (Rizzini, 2001: 315) upon which to realize personal or collective aspirations. Thus, ultimately, ‘the emotional appeal of children makes them, as a class, particularly vulnerable to ideological exploitation’ (Smolin, 1999: 385). The various frictions and imprecisions that the term ‘children’s rights’ brings with it facilitated these struggles of imposing meaning and the appropriation of the identity of the child by adults. No matter from which cultural, political or legal standpoint the childhood discourse is seen, it is almost without exception depicted as a controversial and ambivalent terrain. One of the contradictions of childhood is the fact that many of those who theorize on what childhood precisely means claim at the same time that childhood as ‘non-adulthood’ can only be defined as such from a retrospective, adult perception and that the history of childhood can only be told by adults. It has been evidenced here that a couple of binary oppositions that characterize this self-other relationship have structured this discursive terrain (e.g. innocent – sinful, immature – mature, irrational – rational, dependent – independent, vulnerable – self-sufficient etc.). As shall be seen in the following sections, these parameters of a childhood ideal have gradually come to be recognized and globalized by a growing international child regime that has sought to translate these moral aspirations into largely non-binding legal instruments and to attach a global meaning to the child.

5.6 Child images and international norms of child protection in the twentieth century Assuming that it is ‘law that creates and sustains the regulatory frameworks that define childhood and therefore also the social practices that encapsulate and systematize everyday interactions between adults and children’ (James and James, 2001: 34), one must see national, regional and international legal standards as integral parts of local and global visions of the child and childhood. Reviewing child policies and debates in international politics during the twentieth century, it becomes obvious that, although many of the provisions and debates in local and global politics centred on children’s rights, it was only the second half of the century that departed from a language of ‘salvation’ and shifted from a concern for protecting children to protecting their rights (Freeman, 1983: 18). While public concern for children was often addressed in terms of rights,12 ‘many references to children’s rights turn out on inspection to be aspirations for the accomplishment of particular social or moral goals’ (Freeman, 1983: 37). Only the second half of the

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twentieth century saw the emergence of innovative legal understandings of children’s position vis-à-vis their parents, State authorities and public institutions, wherein the child’s best interests came to occupy an increasingly superior place. The powerful images of the innocent, unruly and immanent child – that all, in one way or another depicted the child as inherently helpless and immature – were shaken up by certain legal provisions and landmark legal cases that made reference to a notion of the evolving child. The notion of children’s rights is, inherently, characterized by tensions between a strictly legal discourse on the child as an individual rights-bearer on the one hand and a child welfare discourse couched in terms of ‘rights’ but rather addressing the moral obligations of nations and societies towards ‘childhood’ on the other. These tensions have also been reflected in a wealth of international legal provisions formulated in the course of the twentieth century (McGillivray, 1997: 14). Until the 1970s, a debate about the child as a rights-holder was largely limited to domestic politics and jurisdiction in a few Western nations (Fottrell, 2000: 2), and those internationally agreed provisions which have addressed children in particular were not widely known among policy-makers and the public.13 The international politics of childhood was, essentially, a politics of child protection up to the 1970s and the dominant images that inspired international standard-setting activities were those of the innocent and the immanent child. However, as soon as the image of the ‘evolving child’ and notions of age, maturity and intellectual capacity were introduced into the legal debate, international legislation began to expand towards the grey zone of adolescence, which made a potential global understanding of childhood even more difficult than before (Campbell, 1995: 19; Kohm and Lawrence, 1997; Mnookin, 1978: xxi; Wringe, 1981: 152–162). Considering the wealth of international treaties and provisions addressing and affecting children, the following will only roughly recapitulate the various provisions that could be found in international law previous to the formulation of the UN CRC.14 It will mainly focus on those provisions that directly address children (i.e. the words child, infant, adolescent or minor are contained in the legal provision) and it does by no means claim to offer a comprehensive discussion of international legal provisions dealing with children.15 Rather, the discussion of international legislation on behalf of children intends to point towards the institutionalization of childhood across a broad range of documents, towards specific norms that seem to have attracted special attention with regard to children and towards certain trends that

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have characterized the field of international law relating to children prior to the beginning of the CRC drafting. The following section will, evidently, engage in a deeper discussion of the various international documents that were exclusively devoted to children and discuss the various dimensions of ‘the child’ and ‘childhood’ these documents convey. Subsequent to a short outline of the various norms that were formulated in the course of the twentieth century, these legal provisions will be discussed and aggregated alongside several areas of tensions that characterize the issue of giving rights to children as it figures in legal debates. It is, of course, not possible to discuss the whole range of legal implications that come with a notion of children’s rights. Hence, this section will concentrate on a few – noticeable and contentious – legal issues which result from particular perspectives on the child and the meaning of childhood. And, which are sufficiently controversial so as to allow the identification of struggles over how much legal space to grant to the child in both public and private (family) spheres. Child-specific subject areas in international treaties The increasing tendency to formulate specific provisions for children in international politics paralleled a general trend in international human rights law in the second half of the twentieth century, namely to grant special rights to certain groups who suffer widespread human rights infringements or occupy a weak position vis-à-vis State authorities: women, ethnic minorities, indigenous peoples, children and disabled persons have been the most prominent among these vulnerable groups. With the gradual dissociation of the child from the family context and, consequently, a growing recognition of the child as an individual human being per se, international law-making witnessed a wealth of provisions in the most diverse areas that relate to children as, mostly, such a vulnerable social group. As a whole, international legislation on the protection of children and/or their rights and welfare has primarily materialized within international human rights law and international humanitarian law (van Bueren, 1998: xix). In order to make the field more intelligible to the reader not acquainted with child-related legal issues, international agreements covering child-specific issues will be classified here as (a) treaties dealing with specific subject areas which are also relevant to (the protection of) children, (b) general international human rights instruments and (c) instruments devoted solely to the subject of children’s rights. Where appropriate, these international agreements will be related to the various child images that have been isolated and described previously.

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The earliest provisions dealing with child-specific matters were those targeting particular subject areas such as labour, trafficking and humanitarian law.16 In fact, the first international treaties explicitly including children in their scope were those that addressed exploitation, either in the context of labour regulations or in the context of slavery. Among the first Conventions formulated by the International Labour Organization was Convention No. 5 on the minimum age for employment, which was adopted at the ILO’s very first session in 1919.17 This Convention prohibits the work of children under the age of 14 in industrial establishments. Even earlier than this, in 1904, the International Conference on Traffic in Women and Children based in Paris adopted an International Agreement for the Suppression of the ‘White Slave Traffic’ which dealt with children as a particular group (Marshall, 1999: 112).18 Some years later, the League of Nations covered the same issuearea by an International Convention for the Suppression of Traffic in Women and Children (1921) and the Slavery Convention (1926). This Convention was amended by the United Nations in 1953 – the respective protocol mentioned in its Article 2 the trafficking of children of both sexes as following under its scope. In 1973, the ILO reformulated the Minimum Age Convention, adopting Convention 138 concerning the Minimum Age for Admission to Employment. The new Convention 138 which supplements Convention 5, in fact, obliges States Parties to fix a minimum age for admission to employment and work and to pursue a national policy designed to guarantee the effective abolition of child labour. As reflected in the discussion in Chapter 5.2, which described how children were gradually ‘shunted’ to the private sphere of the family and ‘home’ and, by the same token, slowly disappeared from the workplace in the course of the industrialization process, the earliest treaties which covered age-specific regulations for children reinforced and institutionalized the trend to replace work responsibilities with school education and a sorrow-free phase of childhood up to a certain age. Humanitarian law19 The first international humanitarian law provisions dealing with children were formulated quite early and, today, they are numerous: the Geneva Conventions of 1949 contain 17 substantive articles for the protection of children in armed conflict. Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 requires in Article 68 that ‘[I]n any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at

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the time of the offence’. The 1948 Convention on the Prevention and Punishments of the Crime of Genocide mentions children in terms of the prohibition to their being transferred from one religious group to another (Rosenblatt, 2000: 259). Later provisions have targeted the issue of child soldiers such as the 1977 Protocol I Additional to the Geneva Conventions which stated that children should not take a direct part in hostilities before the age of 15 (it contains 2 articles dealing with the protection of children).20 The 1980 Inhumane Weapons Convention prohibits booby traps associated with children’s toys and forbids recruiting anyone under the age of 15 into armed conflict (Article 6(b)).21 Many of the provisions in international humanitarian law have underlined the necessity to provide particular protective measures for women and children in short- and long-term emergencies, such as the General Assembly resolution adopting the Declaration on the Protection of Women and Children in Emergency and Armed Conflict 1974 (UNGA, 1974). The recognition of the child as an inherently innocuous and vulnerable human being strongly influenced these legal provisions regulating the situation of the civilian population in times of war. The particularly cruel execution of millions of children during the Holocaust experience certainly gave the greatest impetus to the child-specific provisions of the Geneva Conventions. On a less specific level, the 1965 Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect and Understanding between Peoples underscores the image of children and young persons as both the most vulnerable segments of society in times of war (preamble) and as ‘destined to guide the fortunes of mankind’ (preamble).22 The education of ‘the young’ towards peace, mutual respect and understanding between peoples is seen as an investment for improving ‘international relations and to strengthen peace and security’ (preamble). In Principle VI, the Declaration pronounces an idealistic programme, which is, furthermore, closely linked to the family as the central unit of society: A major aim in educating the young shall be to develop all their faculties and to train them to acquire higher moral qualities, to be deeply attached to the noble ideals of peace, liberty, the dignity and equality of all men, and imbued with respect and love for humanity and its creative achievements. To this end the family has an important role to play. International agreements related to war situations, thus, gave expression to a growing international consensus that children and

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women represented a particularly ‘innocent’ part of civilians suffering from war atrocities and that they were the most vulnerable groups in times of war that required particular protection. The institutionalization of these beliefs in the Geneva Conventions of 1949 has influenced many more agreements pertaining to international humanitarian law. It was accompanied by a strong international movement for child protection or child ‘salvation’ that essentially pictured children as a ‘zone of peace’, not only with regard to the desirability of special protection in times of war, but also with regard to their potential of acquiring a higher degree of peacefulness and brotherhood, and, ultimately, a higher degree of civilization. Marriage and the girl child Another central child-related area that has been covered quite early by UN activities is gender, particularly the issue of consent to marriage. The principle that children should neither be allowed nor coerced to marry was established in international law by the 1963 UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.23 The document calls in its preamble for ‘eliminating completely child marriages and the betrothal of young girls before the age of puberty’ (see: Rosenblatt, 2000: 187). Article 2 requires States Parties to ‘specify a minimum age for marriage’ so that ‘no marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses’.24 While these provisions are rather vague as regards the minimum age for marriage, they nevertheless convey a most extraordinary element, namely that adulthood is connected to ‘puberty’ rather than legal maturity. Biological processes of maturation are taken as the ‘threshold’ event after which marriage might be legally allowed. What is more, even though the upper limit of childhood is not specified, the Convention provides that there might be exceptions to the norm in cases where it is ‘in the interests of the intending spouses’. Children falling under the vague definition of this Convention, thus, theoretically have the possibility to voice their interests independently of adults. Even though the provisions of this Convention are particularly ambiguous, they nevertheless contain rather uncommon elements of a discourse on child protection, in which, indirectly, the persons affected might be in a position to be involved in the decision concerning marriage. As will become obvious in subsequent chapters, these views were by no means universally shared at the time the drafting of the CRC started.

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The UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979 (a human rights treaty that is often compared with the UN Convention on the Rights of the Child) also contains a range of articles that have a bearing on children, both as regards the relationship between mothers and their children as well as with regard to the special situation of the girl child (UNGA, 1979). In Article 5(b), CEDAW envisages [t]o ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the child is the primordial consideration in all cases. (van Bueren, 1993: 57) Relating to the girl child, Article 10 calls for equal opportunities in education and for equal respect for men and women; Article 16(2) requires that ‘[t]he betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory’. Of particular importance here is the ‘best interests of the child’ clause, which is restated in Article 16(d) where it says that States Parties shall ensure ‘[t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount’. The provisions referred to here evidence that the second half of the twentieth century already saw the gradual recognition of the child’s interest as superior to the interests of other parties (parents, public authorities, custodians) and, thus, a slow but steady elevation of the child’s status. This elevation further confirmed the relative ‘value’ attached to children and public concern for their vulnerability, which justified their entitlement to special status in international politics and law. Custody and legal status of children The third thematic area that has seen various provisions specifically addressing children is the issue of custody and children’s legal status in case of displacement (refugee, child abduction, migration). Three issue-areas have been covered by international provisions: the status of refugee children (first covered by the UNHCR Guidelines on Refugee Children in 1988) (UNHCR, 1988), the status of children born out

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of wedlock (covered by the European Convention on the Status of Children Born Out of Wedlock adopted by the Council of Europe in 1975) and the status of children in court proceedings and imprisonment. In fact, it is here, in the field of child custody (family law, divorce, child abduction) as well as the field of penal law that earliest traces of a changing perception of children have emerged. In both areas, the possibility for the child to express his or her opinion or wishes directly (rather than being represented by a legal guardian) has gradually come to be recognized in certain landmark cases in national law and, over and above that, formed part of international treaties such as the Hague Convention on the Civil Aspects of International Child Abduction of 1980. The European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children of 1980 provides in Article 15 (1)(a) that [b]efore reaching a decision under paragraph (1)(b) of Article 10 [i.e. to assess whether a home removal across an international frontier was in accordance with the welfare of the child], the authority concerned in the State addressed shall ascertain the child’s views unless this is impracticable having regard in particular to his age and understanding.25 Over and above that this Convention defines a child as any person less than 16 years of age in Article (1)(a) – a definition that is uncommonly precise for international law. At the UN level, the 1986 Resolution on Adoption of Children has also attempted to resolve international disputes over child custody (UNGA, 1986). Dealing with delicate questions of family separation and the child’s situation vis-à-vis disputes over custody and family affiliation, these provisions in particular have reflected the first tentative traces of an ‘evolution of parent/child/state relationships’ in which the ‘emphasis on “paternal” power [evolved] into a stage of emphasis upon children’s rights’ (Dyer, 1991: 118). Considering the fact that discussions over child custody involved dimensions of who a child ‘belongs’ to and, thus, also show traces of a paternalistic sub-discourse on the child as property of his or her father, parents or legal guardians, the developments in international private law have reflected the earliest traces of a gradual emancipation from this relationship of dependence and a recognition of the child as a partly autonomous human being with the capacity to express his or her own interests. It was particularly in the issue-areas of gender questions, child custody and penal law that

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the first traces of a modified image of the child as an individual human being, potentially capable of expressing his or her own interests, have emerged. The repeated reference to the principle that the child’s interest should be of primordial consideration in CEDAW and the necessity to consult the child in questions of ‘home removal’ contained in the European Convention on Custody of Children have, for the first time, emphasized the interests of children and elevated these interests as a potential corrective of ‘parents’ rights’ (Dorsch, 1994: 41). Positing the best interests of the child as ‘the primordial consideration in all cases’ requires seeing the interest of the child first, and only then looking to the interests of parents, legal guardians or State authorities. This principle, which emerged in the course of the second half of the twentieth century as an established term in international law (Breen, 2002; van Bueren, 1998), gave expression to an increasing belief that ‘children should come first’, not only in emergencies (such as war) but also generally in all decisions affecting the child. International human rights law-making and children Various child-specific and general human rights treaties have reflected the gradual recognition of children as a separate social group entitled to standards different from those for adults. As such, international law rendered children visible and, at the same time, stressed their status as being fundamentally different from adults. This special status was reinforced by a few international documents that were not only devoted exclusively to children but that, over and above that, also aimed at formulating a general and comprehensive norm catalogue as regards the protection of children’s rights in international politics. Child-specific clauses in the International Bill of Rights have further underlined this special status of children in international law and deepened the belief that children’s rights need a different and stronger protection than those of adults. Earliest international activities: The 1924 Geneva Declaration on the Rights of the Child The Declaration on the Rights of the Child adopted by the League of Nations in 1924 was the first human rights Declaration ever adopted by an intergovernmental organization, 24 years before the Universal Declaration of Human Rights (League of Nations, 1924).26 It was also the first international treaty that was solely devoted to children. However, although this could be taken to indicate that children were not the last but rather the first group of human beings granted special rights under

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international law, the text quickly reveals that the notion of ‘rights’ enshrined in the Declaration amounts to no more than a few moral principles: ‘Mankind owes the child the best it has to give’ – this is the guiding belief of the 1924 Declaration. The Geneva Declaration is principally concerned with the provision of children’s economic, social and psychological needs – its language clearly reflects a child welfare perspective which places the child as a vulnerable, weak object at the centre of ‘mankind’s’ obligations. Although the title suggests that the child was already conceived of as having individual rights, the language of the Declaration mainly evokes certain moral imperatives for adults in their behaviour towards children and does not imply any legal entitlements, that is, rights as freedoms, granted to the child. As a consequence, it appears that only a few nations incorporated the provisions of the Declaration into their national legislation (Fottrell, 2000: 2). The Declaration was therefore largely a symbolic enterprise. Nevertheless, its merit lay in introducing the term ‘rights of the child’ into the international arena. The Declaration consisted of only five principles that contained the rights of a child: it is obvious from these principles that the Declaration mainly targeted the needy, most deprived children of society (‘the child that is hungry must be fed; [...]; the orphan and the waif must be sheltered and succoured’, Article 4) or those in exceptional circumstances such as war or other national emergencies (Article 3). Under existing standards of international law, this Declaration must be seen as no more than a proclamation of certain duties of ‘humanity’ since its preamble does not refer to States Parties but rather generally to ‘men and women of all nations’. It is also interesting that none of the five principles of the 1924 Declaration refers to the (biological) parents of the child or the family as a reference group to which obligations are addressed. From the language the Declaration employs it might be inferred that, in fact, the Declaration did not legalize and, as such, ‘re-contextualize’ prevailing notions of child protectionism and paternalism into formulations that were representing obligatory norms addressed to States Parties of the League. Rather, it can be seen as an international reflection of the innocent (and vulnerable) child image, much expressed in Article 2 where it says that the ‘delinquent child must be reclaimed’. Even the child that has broken the law is covered in the humanist approach of the Declaration – a circumstance that epitomizes the protective stance towards children (and the rejection of a notion of the ‘unruly child’).

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The UN 1959 Declaration on the Rights of the Child: A protective view on the most vulnerable group of human beings Similar to the 1924 League of Nations Declaration, which grew out of a concern for the millions of children who had suffered during and after the First World War, the second international treaty devoted exclusively to children followed a post-Second World War concern with child victims of armed conflict (UNGA, 1959).27 In 1946, the United Nations International Children’s Emergency Fund was established by means of a resolution of the United Nations General Assembly. UNICEF was initially created in order to help the child victims of the Second World War but later shifted its concern to the least developed countries of the world. In the same year, two of the largest child welfare organizations merged: the International Association for the Promotion of Child Welfare and the Save the Children International Union. Together they built a non-governmental federation, the International Union for Child Welfare (IUCW) – a federation of organizations that had considerable lobbying power at the UN. It is seen basically as a concerted effort of these organizations that the UN began drafting a new Declaration on the Rights of the Child in 1950. The preliminary draft formulated by ECOSOC was then suspended again due to the need to complete the work on the two international human rights covenants. Finally, in 1957, the Commission on Human Rights seriously began the drafting of a Declaration which, in spite of its ‘soft law’ character as a Declaration, was the first international document that carried an ample statement on children’s rights. The 1959 UN Declaration together with numerous other public and private international law treaties adopted in the 1960s and 1970s fosters the assumption that ‘children could and should rely upon the exclusive protection of adults to ensure the exercise of their rights’ (van Bueren, 1993: xv). These texts hardly conceal the tendency to view children as objects, not subjects, of international law. The conventional view of the child as the most vulnerable member of society is perhaps most strongly epitomized by Principle 8 of the Declaration which states that ‘[t]he child shall in all circumstances be among the first to receive protection and relief’. The 1959 Declaration explicitly builds on the legacy of the Geneva Declaration by adopting the formulation ‘Mankind owes the child the best it has to give’ in its preamble. While taking up several of the provisions of the 1924 Declaration it reformulates and extends these – the simple reference to ‘exploitation’ in the 1924 Declaration, for instance, is much more concrete in the 1959 Declaration, addressing

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the trafficking of children and the minimum age for employment. This also reflects the various specialized treaties covering children that had been formulated in the meantime. The 1959 Declaration is far more comprehensive than its predecessor. Reaching beyond certain basic needs of the child as proposed in the 1924 Declaration, the 1959 Declaration also stresses the child’s emotional and psychosocial need for love and understanding, and issues such as education, identity rights or the right to play and recreation. Although the 1959 Declaration covers a much broader welfare context than the 1924 Declaration, it is devoted almost solely to economic, social and cultural rights. Still, it refers to one civil right for children – for the first time in the history of international law – namely, the right to a name and nationality (Principle 6). Fundamental rights to life and liberty, rights covering juvenile justice or the right to be protected from cruel treatment or punishment are not included (Hodgson, 1992: 266). An exceptional feature of the 1959 Declaration, which preceding legal instruments did not display, is the so-called horizontal effect of the legal text. The Declaration, although an inter-national document, does not exclusively call upon states and their duty towards children, but also mentions the responsibilities of society at large as well as public authorities, voluntary organizations and parents. This implies that child’s rights are not rights against anyone but against everyone (Freeman, 1983: 41). In fact, it is largely the child’s parents that the document addresses its obligations to, while only marginally mentioning State authorities. The latter are addressed directly only twice: once in the context of children without a family (that is, State authorities are responsible for children outside the family context) and once within the provisions for play and recreation of the child. Other institutional dimensions of children’s upbringing are only loosely referred to – such as social security or the ‘special treatment’ of handicapped children. The 1959 Declaration is clearly more broad-ranging than its predecessor. Although stressing the needs of children in special circumstances (disabled, orphaned), it is directed towards the normal childhood experience and as such might be seen as a much more general document than the 1924 Declaration. Nevertheless, a definition of the child in terms of upper age limits is lacking in the Declaration. Among the most groundbreaking innovations of the 1959 Declaration are the principle of the ‘best interests of the child’, a principle that continues to be extensively discussed among lawyers, psychologists, pedagogues and parents up to

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the present day (Alston and Gilmour-Walsh, 1996; Breen, 2002) and the principle of non-discrimination which includes sex, colour and birth. This means that, implicitly, the girl child is addressed in the Declaration as is the child born out of wedlock. The best interests of the child-clause is mentioned twice in the Declaration: with regard to legislation covering child-related issues and with regard to the guiding principles for a child’s ‘education and guidance’ (Principle 7). The various provisions that were outlined here also indicate that the 1959 Declaration does not only relate to some broad obligations towards children in distress but that, despite its sketchy nature, it also conveys a picture of some universal conditions and guiding principles for the ‘shaping’ of childhood so as to make it a ‘happy childhood’ (preamble). Yet, notwithstanding the fact that the 1959 Declaration specifies particular addressees of its moral imperatives, it ‘treats the interests of children essentially as unconnected to and independent of rights and interests of parents and issues of family control and unity’ (Bennett, 1987: 19). Since the child targeted by the Declaration is, generally, a mute beneficiary of parental, State and societal generosity, goodwill and emotional attachment, the Declaration does not create any tension between potential interests and rights which could be actively claimed by the child against the State and/or his or her parents, and the interests, rights and responsibilities of adults (parents, caretakers, State authorities). As a consequence, the private sphere of family relations and relations of authority between child and parents are not touched by the Declaration. The International Bill of Rights and the rights of the child General international human rights instruments such as, most notably, the Universal Declaration of Human Rights of 1948 (UNGA, 1948) and the two Covenants of 1966 – International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) (UNGA, 1966) – of course, relate to all human beings, thus also to children when stating that their provisions do not make any distinction as to ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. However, there are several clauses in these documents that specifically apply to children – as such they give reason to assume that the rights of children are somewhat different from those of adults.28 The Universal Declaration of Human Rights of 1948 clearly singles out children as being especially at risk and embodies a more

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protective, welfarist stance towards children since its Article 25(2) states that [m]otherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Furthermore, it deals with a child’s right to education in Article 26 and ‘the rights of parents to choose the kind of education that shall be given to their children’. The Covenants emphasize the particular value placed on the family ‘as the natural and fundamental group unit of society’ (ICCPR Article 23(1) and ICESCR Article 10(1)) which is ‘entitled to protection by society and the state’ (ICCPR Article 23(1)). While the ICCPR stresses the liberty of parents concerning ‘religious and moral education of their children in conformity with their own convictions’ (Article 18(4)), the ICESCR emphasizes the responsibilities of parents ‘for the care and education of dependent children’ (Article 10 (1)). However, the child in his or her status as ‘minor’ is explicitly addressed in the ICCPR and has ‘[...] 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’. Especially a child’s identity rights (as basically the only civil rights) are stressed by the ICCPR, namely the right to birth registration, to a name and to acquire a nationality (Article 23(2) and (3)). In addition, the ICCPR covers the prohibition of the death penalty for under-eighteens (Article 6) and provides for the separation of accused juvenile persons from adults, for a rapid adjudication (Article 10(2b)) and for the treatment of juvenile offenders ‘appropriate to their age and legal status’ (Article 10(3)). Participatory rights for children, such as their right to be involved in decisions that directly affect them, are not mentioned at all in the ICCPR. The ICESCR reaffirms a protective approach towards children, both by including the mother in its protective provisions (before and after childbirth, Article 10(2)), as well as by stating that ‘[s]pecial 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. Children and young persons should be protected from economic and social exploitation [...]’ (Article 10(3)). Both the 1948 Declaration on Human Rights and the two Covenants unmistakably perpetuate traditional images of the child as particularly vulnerable (innocent child), in need of special protection and as a

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potential ‘deputy’ of a future, better educated, more civilized generation of adults (immanent adult). The child’s status as a member of the family and as ‘dependent’ is underlined. Notwithstanding the strong focus on a protectionist discourse related to the child, first traces of a stronger recognition of children’s civil rights can be found in the ICCPR, before all with regard to penal law and the prohibition of death penalty for under-eighteens. None of the treaties, however, recognizes the child as a subject potentially capable of speaking in his or her own interests. There is, in the end, no recognition of the child as a social agent or as a potential rights-holder. The 1979 Declaration on the Rights and Welfare of the African Child29 An important regional document that was formulated in the course of the International Year of the Child in 1979 is the Declaration of the Rights and Welfare of the African Child 1979. It was the only regional document solely devoted to the child that was formulated prior to the beginning of the drafting of the CRC.30 This Declaration – although not formulating binding obligations for States Parties – contains a couple of paragraphs which appear to address societal practices in Africa that ever since have become delicate issues in international standard-setting. Article 2, for instance, explicitly refers to the ‘unequal status of female children in some parts of Africa’ which States Parties should pay particular attention to. Furthermore, the document openly confronts female circumcision and child marriage as ‘cultural legacies and practices that are harmful to normal growth and development of the child’ (Article 3). Apart from these references to societal practices detrimental to the child’s development, the document (as is already indicated by its title) predominantly concentrates on the welfare of the child, with health, nutrition, education and other basic services at the centre (preamble). In addition to that, and similar to the earliest international treaties devoted solely to the child, it stresses the priority of the most disadvantaged children such as disabled children (Article 6b) and refugee children (Article 12). As a regional instrument, the Declaration underscores the African cultural legacy (‘arts, languages, culture’) and requires efforts to be made in order ‘to stimulate the interest and appreciation of African children in the cultural heritage of their own countries and of Africa as a whole’ (Article 10). The educational measures it proposes are rather unconventional and pragmatic, providing for non-formal and out-of-school opportunities ‘where education services through conventional school systems cannot be provided’ (Article 7).

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From the discussion above, it is clear that the child had been the concern of international agreements and treaties for some considerable time prior to the drafting of the Convention on the Rights of the Child. Although documents referring solely to (the rights of) the child were rather sparse during the twentieth century, the wealth of provisions and the variety of intergovernmental and non-governmental activities that together add up to a conglomeration of child-related policy-making and implementing mechanisms – in fact an international child regime (Florano, 1999) – indicate that the child was far from a neglected subject in international politics. Yet, the two international child-specific treaties (the 1924 and 1959 Declarations) that existed prior to the drafting of the CRC were rather weak and largely emotional proclamations on behalf of children that gave expression to the widespread acceptance of the image of children as particularly defenceless, innocent and ‘worthy’ of protection as the representatives of a future generation (immanent child). Other child-specific provisions were scattered among a wide range of diverse documents, which stressed the most diverse dimensions of childhood. Thus, there seemed to be a visible gap between broad, ethical statements expressing global concern for child protection and the rather meagre, more substantial provisions that aimed at the realization of specific child-protection measures. Children in law – dependency, agency and double standards There have been lively debates on the nature of child rights within the legal community since roughly the 1970s. They evidence that the child as a legal and political subject in international politics evokes a number of difficulties, revolving around the problematic correlation between age and maturity. This not only with regard to difficult terminology related to non-adults (minor, juvenile, youth, child, adolescent, infant), but also, and more complex, with regard to the link between age and intellectual capacity, competence and independence. Even if the upsurge of international interest in children’s rights in the 1960s and 1970s can be related to other liberation movements such as the black people’s civil rights movement and the women’s liberation movement, the majority of legal experts nevertheless argue that children as a subgroup of human beings are different from these other marginalized, objectified groups. This difference relates to age and to a child being essentially defined as an unreasonable non-adult. With regard to questions of age, maturity and independence, O’Neill contends that not only is being a child different from being a coloured person or a woman (due to the fundamentally transitory character of childhood) but that

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the dependence of children is also different from the dependence of other groups (O’Neill quoted in: Freeman, 1997: 26): When colonial peoples, or the working classes or religious and racial minorities or women have demanded their rights, they have sought recognition and respect for capacities for rational and independent life and action that are demonstrably there and thwarted by the denial of rights. [...] But the dependence of children is very different from the dependence of oppressed social groups on those who exercise power over them. (O’Neill, 1995: 37–38) In this regard, children as a special population group in international law have more in common with refugees or prisoners (persons with a potentially temporary status) rather than those groups defined by their mostly permanent condition (women, disabled persons). Consequently, O’Neill claims that children’s dependence, as opposed to the groups she mentions in this quote, is natural and not artificially produced by ruling (male, imperialist) elites. She sees it in the interests of parents and legal guardians of children to gradually reduce instead of perpetuate this dependence, since ‘[...] children’s dependence is a burden on those on whom they depend’ (O’Neill, 1995: 38). Regarding this exceptional dependence of children, it appears that issues of age and maturity are more or less uncontested as long as legal provisions deal with infants, toddlers and very young children (e.g. those who do not yet command language, who cannot feed and clothe themselves, who have no sense of past, present and future etc.). However, as soon as the debate concentrates on those age groups of children who can speak for themselves, argue for their interests and shoulder certain responsibilities, it becomes more and more difficult to maintain these double-standard arguments. The difference between age and other grounds for discrimination is that age is an evolutionary concept. This implies that in principle it is not an either/or concept (woman/man, black/white) but a more or less one. With regard to this discussion, it is possible to identify a cleft between those proponents of children’s rights who largely see them as moral imperatives to be addressed to competent adults who act on behalf of children, and those who take the notion of rights and the act of conferring rights to children as implicating that children are proper rightholders who have the possibility to have a legal ‘voice’ and claim their rights. The most contentious issue therefore is the question, do children possess ‘sufficient procedural capacity to act on their own behalf’ (van

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Bueren, 1998: 1). If, as some do, one takes the notion of rights in a rather technical sense to imply that an individual must be able to claim these rights him or herself and have the capacity to initiate legal action (Campbell, 1995: 4), then the notion of children’s rights (applying to all children from conception up to the age between 15 and 21) must be seen as posing serious difficulties in implementation. Seeing competence as a threshold concept and rights basically as moral imperatives evidently relates to a paternalist stance which calls for the child to be in ‘a submissive role in relation to state and parents’ (Fionda, 2001: 8). The rights formulated would therefore concentrate on protectionist and welfarist measures to be taken by the State and emotional and educational duties to be carried out by parents up to a cut-off point specified by law. We see this reflected in several of the international legal documents depicted above. Children are looked upon as undeveloped adults up to a certain point at which they reach legal maturity and, not gradually but suddenly, achieve the status of a fully competent person under the law. Opponents of this threshold conception of full legal responsibility criticize the ‘[...] arbitrariness of granting the individual full legal status at the age of eighteen while denying him it the day before’ (Wringe, 1981: 91). They argue that, instead of assuring that children’s human rights are even better protected than adult ones, the double standards in law and the tendency to treat children differently might also ‘backfire’ in the sense that specialized childrens’ legal entitlements are considered to be weaker than adults’ (Freeman, 1997: 89). Considering this debate about maturity and adulthood, it is a puzzling element of the international childhood regime prior to the CRC that, apart from the Hague Convention on the Civil Aspects of International Child Abduction of 1980 and the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children of 1980 mentioned earlier in this section, ‘[...] human rights instruments and international treaties do not define when childhood comes to an end’.31 Possibly, international policy-makers already anticipated how ‘muddled’ these provisions would become and did not wish to become involved in discussions over maturity and the appropriate criteria for adulthood. Hence, although these documents do refer to childhood as something to be distinguished from adulthood and to children as entitled to certain special rights due to their particular status, they do not specify the threshold that separates child and adult. Assuming that most of the documents nevertheless consider age to be a threshold concept (since they do not refer to evolutionary conceptions of childhood,

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with competence and maturity growing), it must be assumed that, in fact, international law relating to children prior to the drafting of the UN CRC had to deal with a large ‘grey zone’ concerning adolescence, maturity and the potential to actively exercise certain rights. Children’s rights: Moral aspirations and legal claims Confronting the specificities of the legal context surrounding the drafting of the UN CRC, it seems plausible to look at legal arguments that were made prior to the beginning of the drafting or during the years in which the drafting took place. Several publications from the 1970s have been seminal in this regard: Goldstein et al.’s Before the Best Interests of the Child, In the Best Interests of the Child and Beyond the Best Interests of the Child (1973; 1979; 1986), Wringe’s Children’s Rights: A Philosophical Perspective (1981), Coigney’s Children Are People Too (1975), Mnookin’s Child, Family and State (1978) and Freeman’s The Rights and Wrongs of Children (1983). All of these influential writings testify to the circumstance that childhood posed serious problems in legal theory and practice, in the 1970s as it still does today. The criticisms these writings direct towards legal practices during the 1970s and early 1980s focus on several issues: they address the crucial issue of child custody (in divorce, adoption etc.) and the importance to see the best interests of the child as the guiding principle in all decisions. The latter meaning that the child’s well-being should enjoy priority over the well-being of any other person involved (mostly the parents). This is the central tenet in Goldstein, Freud and Solnit who plead for the least detrimental alternative solution to be found in all legal disputes as concerns the child. The emerging trend of regarding competence and capacity as evolutionary concepts, and the increasing tendency of legal authorities during the 1970s to involve children in the decisions over their best interests, led the authors mentioned above to advance the criticism that such legal practices, by assessing a child’s maturity on a case by case basis, arbitrarily decide on who is competent and mature, and who is not (Wringe, 1981: 90). According to the legal discussions preceding the drafting of the CRC, the dilemma with regard to children’s rights implies that legal practice either has to stick to an inflexible principle that denies certain rights up to a specific day (e.g. 18 years for making a legal agreement, voting in national elections, 16 years for marriage, purchasing alcohol and smoking, sexual intercourse etc.) or has to rely on psychological models of competence in children and adolescents which might be no less arbitrary than the first solution.

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Freeman (1983) has aimed to capture the conflicting trends in the child’s rights debate during the 1970s by examining the dividing lines between rights understood as moral ideals and rights understood as positive rights (requiring that rights are actively exercised by a fully enlightened individual and as such become real). The international documents mentioned above mirror these divisions. The 1959 Declaration on the Rights of the Child (although explicitly alluding to the rights of the Child in its title32), for instance, is much better characterized as a set of aspirations concerning the moral and social ambitions of a society towards the protection of children rather then as a document referring to the explicit protection of their rights, potentially including positive legal rights to be claimed by children directly. Only one among the legal provisions mentioned above makes an explicit reference to the active participation and engagement of a child in the exercise of his or her rights and this document is, perhaps not surprisingly, part of European international private law: the 1980 European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children. This particular legal document embodies a concept of children’s rights as a proper legal claim – in Feinberg’s terms ‘having a claim consists in being in a position to claim in a performative sense, that is, to make claim to’ (Feinberg quoted in: Freeman, 1983: 36). An understanding of rights as legal claims, therefore, crucially involves the child’s potential to be listened to, to speak out and to participate in decisions made on his or her behalf: ‘Hearing what children say [original emphasis] must therefore lie at the root of any elaboration of children’s rights’ (Eekelaar, 1992: 228). Participatory rights and the image of the evolving child In all legal discussions centring on the child as a social agent and on childhood as a process of intellectual maturation, participatory rights for children are understood to be an essential feature of a notion of rights as legal claims instead of moral aspirations. As such, the participatory rights-dimension is taken to depart most fundamentally from early moral, protective, welfarist and objectifying legal provisions towards an approach that sees the child as a social agent who could potentially claim his or her rights vis-à-vis different duty-bearers. Conceiving of the child as having a say in legal decisions affecting him or her and in measures undertaken for his or her well-being embodies a picture of the child as (partly) autonomous, corresponding to his or her degree of maturity and competence. This view, however, which is virtually absent in the documents outlined above, played a vital role in the public, political and legal debates surrounding the International Year of

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the Child and the beginning of the drafting of the CRC. The examples which have usually supported certain arguments made in favour of a partial legal autonomy for children concentrate on adolescents (i.e. those human beings which appear to be something in between a child and an adult) and on what appear to be major decision-making questions such as abortion, seeking contraceptive advice or clashes of religious or cultural convictions between parents and their child as opposed to minor day-to-day questions such as the appropriate bed time or haircut for an adolescent. A number of groundbreaking court cases in the United Kingdom and the United States are frequently quoted as landmark cases in the advancement of the idea that children should be involved in decisions that will have a strong impact on their life and that, as a consequence, the child’s interests might prevail over those of his or her parents. Particularly noteworthy is the Gillick vs Norfolk and Wisbech case in the United Kingdom, where the House of Lords acknowledged the principle of the child’s evolving capacity to reason in an independent decision regarding the case of a female minor who sought contraceptive advice without prior consultation with her parents.33 The Lords ruled that in cases where doctors believed that the use of contraceptives was in the best interests of the child, the consent of parents was not required. This court decision provoked a vigorous public and legal debate, since it ventured into areas in which recognition of the rights of the child to self-determination were perceived as particularly critical – potentially inducing self-harm, such as in the case of abortion (Bennett, 1987: 33). Cases like the Gillick case shook up traditional views of the family as a sacred sphere and of children’s interests as being, usually, inferior to those of parents or public institutions.34 What is more, they launched the idea that children could also be seen as subjects of rights, including rights of self-determination. Thus, ultimately, they created room for a novel image of the child as a thinking, speaking and reasoning human being, being entitled to voice his or her opinions and interests directly and independently. They also pointed towards the possibility of transforming the complex relationship between the State, parents and the child to the benefit of the child and of emancipating the individual child from a sacred, private sphere of family life that left little room for public intervention and potential protection of the child and his or her rights (Toope, 1996: 47). While claims to protection made on behalf of children do not change the status of children as objects of paternalistic intervention (but just replace one adult decision-maker with another) (Freeman, 1983: 44), the child image of the ‘evolving child’ has been the most difficult to

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reconcile with legal theory and practice and has represented the most novel and challenging perception of children in general in the 1970s. Acknowledging a child’s partial independence from adult protection significantly blurs the line of division between adult and child, introduces an evolutionary understanding of competence and maturity, and, therefore, produces exactly the ‘grey zone’ identified above. It is, however, possible to interpret this image of the evolving child in two ways: on the one hand, it might be regarded as bringing adult rights back in (through the backdoor), therefore tearing down the legal walls that were built up in order to distinguish the child from the adult. On the other hand, however, and this is Fionda’s interpretation (Fionda, 2001: 9–10), it could reinforce the distinction between child and adult inasmuch as the child is not only perceived to belong to a special social group in terms of his or her dependence and vulnerability but also valued for his or her particular understanding and perception of the ‘world’ and ‘reality’, being able to make these perceptions heard and taken into account in all matters that affect the child or lie in his or her interest. This implies that, in fact, the child is not autonomous by being on an equal footing with adults but that he or she is granted particular rights that enable him or her to defend a child’s perception and interests against adult perceptions and interests. Both of these understandings, however, involve an emancipatory redistribution of power in favour of the child, since the right to express one’s own views and to have these views taken into account (e.g. by legal authorities against a child’s parents) to a certain extent weakens the authority of adults. Combining a child’s best interests with his or her possibility to make that interest heard and incorporated into decisions made by third parties grants him or her a certain degree of self-determination. It is, therefore, not surprising that the fiercest battle over a child’s self-determination could and can still be found in family law (Freeman, 2001). Table 5.1 summarizes and aggregates the various discursive strands that together form the ‘discursive ecology’ of childhood: the various child images are complemented by particular norms or visions that have, traditionally, accompanied the respective image or perspective on childhood. What is more, an attempt was made at identifying for each of these discursive ecologies (Linde, 2001: 532) a particular linguistic code: the protectionist, paternalistic understanding of the vulnerable (either innocent or unruly) child will be associated with largely an emotional language of moral aspirations. The same applies to the sub-discourse on children and peace, although in a more universalistic, international dimension. The semantic sub-field of child liberation is taken to evidence a rather emancipatory repertoire and a political linguistic

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code of advocacy and empowerment. Developmental, evolutionary understandings of the child share a universalistic, scientific, matter-offact language, while the immanent child perspective often comes with an economist linguistic code that promotes the protection of the child as an investment in the future.

Table 5.1 Child images and international politics in the twentieth century Unruly/ Immanent irrational child child

Innocent child

Evolving child

Discourse • Immaturity • Children as • Vulnerability elements • Irresponsibility future • Misery/ • Irrationality • Valuable Suffering • Child as object contribution • Happiness of parental to society • Playfulness and State • Education as • Victim intervention the means for • Apolitical – personal neutral zone development • Immaturity • From • Childhood immaturity to as a ‘carefree maturity zone’ • Childhood as transitory phase to adulthood • Teleological • Progress • Standardization of childhood • Uniform developmental stages

• Individuality • Political • Child’s autonomy • Right to speak • Child as social agent

Linguistic Protectionist, code educative

Developmental, Emotional, psychological, protectionist economistic

Legalistic, political language

Reflection in international politics

Development . Personal and collective development, education, nurturing

Emancipation/ human rights 1 Child’s rights (especially civil and political) empowerment

Paternalism v Principle of the best interests of the child – traditional view of the child

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Peace and civilization á Children as zone of peace, treatment of children as indicator for ‘civilization’

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Part III Drafting the UN Convention – towards a New Image of Childhood

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6 Origins of the Drafting of the UN Convention on the Rights of the Child

The twentieth century can arguably be viewed as the Century of the Child. The 1960s and 1970s in particular were periods of vigorous public debate concerning the triangular relationship between children, parents and the State and marked the advent of an emerging libertarian movement for children. Retrospectively, the Convention on the Rights of the Child might appear to be a culmination of a century-long concern with children, their protection and their rights. And yet, many political stakeholders reacted slowly and reluctantly to the idea of formulating a human rights document exclusively for children. This makes the document that the UN General Assembly (GA) finally adopted on 20 November 1989 all the more remarkable. Not only was it the most comprehensive human rights document so far but it was also ratified by 107 States within less than two years.1 Today, its near-universal ratification supports the argument that ‘at least at the level of norm-creation there [...] appears to exist a strong consensus among states as to the substance and universal applicability of the rights of the child’ (Harris-Short, 2003: 135). This also seems to be confirmed by the fact that the draft was entirely prepared by a Working Group of the UN Commission on Human Rights (CHR), 2 and that it was adopted by the GA without a single modification, neither by the CHR nor by the Third Committee3 of the GA.4 This is an exceptional case at the UN. Yet, as shall be demonstrated throughout the ensuing discourse analysis, there are numerous grounds on which this supposed unanimity with regard to the CRC’s notion of childhood can be challenged, not last by the fact that many signatories of the CRC continue to place far-reaching reservations on the treaty and 141

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that critical reflection on the possibilities of fully implementing the CRC is even stronger today than in 1989 (CRIN, 2005).

6.1 Investigating the discursive practices creating the CRC Undoubtedly, one of the various innovations of the Convention is the fact that, compared with the two preceding Declarations on the Rights of the Child of 1924 and 1959, it mainly addresses States Parties’ obligations towards the child. Yet, the CRC must be seen as a norm catalogue that considerably stretches towards intra-familial and societal attitudes as a whole and according to many of its critics, should be assessed not only by its near-universal ratification but also, and perhaps more importantly, by the extent to which its principles have shown an influence on civil society practices (Boyden, 1997; Ncube, 1998a; Neary, 2002; Woll, 2000). Judging from 20 years of activities by the CRC Committee this latter dimension of the Convention is taken to be more than problematic, predominantly in countries other than the wealthy and industrialized ones.5 Presently, the Convention’s provisions, especially those dealing with participatory rights for children and a rightsbased approach in general, are subjected to critical reflections even on the part of NGOs.6 The cultural sensitivity of some of the Convention’s propositions, thus, is constantly and seriously under attack. With regard to the discursive shift that happened during the drafting of the CRC and its far-reaching consequences on contemporary lawand policy-making in the field of child protection, the following analysis of discursive practices will be guided by three principal questions: (1) How did it come about that the drafters of the CRC added a new and still considerably contested dimension to already existing legal standards concerning the child and childhood (participatory rights of children and the concept of ‘evolving capacities’)? (2) Which were the constraining as well as the enabling factors that allowed such a decisive discursive shift, both on structural and on agent level? (3) Which additional elements contributed to the ‘Northern’ character of the CRC and which factors of influence and exclusion were responsible for its fortification? With the funnelling model in mind, the ensuing analysis of the discursive process that generated the CRC – pictured as a process of discursive narrowing – will be split in two majors parts, following a suggestion by Price Cohen (Price Cohen, 1997: 387).7 This chapter will deal with the conceptualization phase (1978–79) in which the parameters were set for the drafting of the Convention, that is, the International Year of

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the Child (IYC) as the primary event that opened up discursive space to renegotiate the ‘global child’.8 The conceptualization phase also covers the emergence of the idea to draft a convention for children, with the first proposal for a Convention on the Rights of the Child being submitted to the CHR by the government of Poland in 1978. Analysis will include the comments of Member States, IGOs and NGOs on the first Polish proposal and the modifications that produced the second proposal, with the 1979 Warsaw Conference on the Rights of the Child as the main event for a new agenda-setting. The second and much larger part of the empirical analysis – Chapters 7 and 8 – will deal with the initiation and actualization phases of the drafting, that is the drafting of the first draft completed by the open-ended Working Group (1979–87) and the technical review, the second reading plus the adoption by the General Assembly (1988–89). Part III constitutes the core part of the book since attention now turns away from the contextual parameters – historically grown images of the child and international politics of childhood at the end of the 1970s – towards the production of text, that is, to the discursive practices by which specific social agents have adapted this discursive ecology of the child to a clear-cut institutionalized communicative event: the series of debates within the CHR and the Working Group established by the Commission in 1979. Considering the length of the debate (10 years) and the comprehensiveness of the Convention (41 substantive articles), analysis of the drafting process of the CRC will focus on those articles and provisions of the Convention that (a) appear to be most central to the pioneering character of the CRC as well as (b) reflect the controversial issues that emerged in the course of the drafting. These dimensions can be found in argumentative exchanges concerning beginning and end of childhood (although the analytical focus requires this study to centre mainly on the end of childhood); the triangular relationship between the child, parents and the State; and the principle of the ‘best interests of the child’. The investigation will recapitulate, how these general questions have been connected to a novel discourse on childhood and the child, calling for respect for the child’s views and, as a consequence, for certain civil and political child’s rights (such as freedom of expression; freedom of thought, conscience and religion; freedom of information or the child’s right to privacy). These issues are most commonly taken to give the Convention its rather revolutionary reputation.9 However, as the analysis of individual discursive practices will show, elements of a changing discourse on childhood have also emerged in the context of various other issue-areas, most generally in

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all those cases where the rights and responsibilities of parents or other adults were weighed against the rights of children. Most of the textual evidence (reports, summaries, working papers, informal notes) used in Part III is part of the so-called travaux préparatoires10 of the Convention on the Rights of the Child. These travaux have been thematically summarized in two important documents: Detrick’s The UN Convention on the Rights of the Child: A Guide to the Travaux Préparatoires (Detrick, 1992) and a Legislative History of the Convention on the Rights of the Child, the outcome of a documentation exercise carried out by UNICEF and the NGO Rädda Barnen, which is published on paper and electronically by Raedda Barnen Sweden (United Nations High Commissioner for Human Rights and Save the Children Sweden, 2007). It is often stressed that the importance of such documents lies in providing some further guidance to those concerned with interpreting wide-ranging international human rights agreements, all of which leave considerable leeway for interpretation of their basic principles. Thus, the Committee on the Rights of the Child, established as a monitoring body for the implementation of the CRC, uses these documents in order to assess the meaning of the CRC’s provisions in the light of the discussions that took place within the Working Group.11 It follows from this that, while the CRC may reflect larger ideas and principles underlying international protection and promotion of children’s rights, the documentation of the discursive processes that produced this text gives a much more detailed and sometimes polarized picture of this process of meaning-making and allows inferences to be made about the influence of various ‘ideologies’ and perspectives on the child and childhood that were promoted by the drafters.

6.2 First traces of a new global childhood discourse during and after the 1979 UN Year of the Child In January 1979, the UN General Assembly celebrated the beginning of the International Year of the Child. Some 60 million people in 60 countries watched the television broadcasting of this event (Clark, 1996: 57). The IYC followed a series of UN Years dedicated to particular issues or groups of persons. This year dedicated to children was mainly the merit of a broad NGO coalition12 that commenced its lobbying efforts in 1973 and finally succeeded in getting the UN General Assembly in 1976 to proclaim 1979 as the IYC (Beermann, 1979; Black, 1996; Stöcker, 1979). Especially the International Catholic Child Bureau

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(ICCB), an international NGO based in Belgium, was a fierce proponent of an international year dedicated to the child (IYC, 1979). If one looks for early traces of the new childhood paradigm that emerged with the CRC, it is striking that the 1976 resolution of the General Assembly establishing 1979 as the International Year of the Child, exclusively referred to the well-being of children – especially those in developing countries – which should be promoted by means of the IYC activities of governmental and non-governmental actors. None of its provisions introduced a language of rights or the desire to fortify children’s rights, nationally and internationally, as a primary objective driving IYC activities. The ‘special needs of children’ were explicitly addressed, whereas their special ‘rights’ were not invoked (UNGA, 1976: para. 5). Nevertheless, the IYC saw an abundance of new national, regional and international child-related institutions being founded, not least one of the fiercest organizations standing behind the final text of the Convention: Defence for Children International, which was established as a branch of the International Union of Child Welfare in Geneva in 1979. The IYC considerably increased political stakeholders’ sensitivity towards children’s issues and created an atmosphere of public concern for children that made it difficult to neglect the situation of children, nationally and abroad (Cantwell, 1992b; Hodgson, 1992; James and Prout, 1997b). Hence, the initiative taken by the government of Poland was well timed considering this window of opportunity – Poland being considered internationally as one of the main proponents of children’s well-being. The Polish initiative of 1978 Poland, back then a country with a communist government led by Edward Gierek (later overthrown in 1981 by General Wojciech Jaruzelski), is generally considered the initiator of the project to draft the CRC. Some have argued that Poland’s initiative towards such a convention was intended as a counter-project to the Torture Convention that had, to a large part, been an outcome of a worldwide campaign against torture by Amnesty International (AI) and then been most strongly supported by the Netherlands and Sweden (Baehr, 1989). As such, the CRC has been repeatedly described in terms of an ‘Eastern project’ vs the ‘Western Torture Convention’ (Cantwell, 1992b: 23). Yet, on closer inspection, it appears that Poland had, since the very embryonic stages of the UN, been one of the strongest proponents of a fortification of children’s rights and an intensification of child protection within the framework of the UN (Stöcker, 1979: 92; Tolley, 1987: 139–140). Poland’s

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advocacy on behalf of children drew its main inspiration from the child philosophy of Janusz Korczak, a pedagogue whose child philosophy heavily built upon an understanding of the child as a partly autonomous individual. The United Nations International Children’s Emergency Fund (UNICEF) was also created by the UN General Assembly in 1946, following the initiative of a Pole – Ludwik Rajchman.13 The first proposal that Poland submitted to the UN was, by and large, a replication of the text of the 1959 Declaration, with only a section on implementation mechanisms added to the text. The proposal also provided for the text of the Convention to be sent to all Member States, special agencies, regional IGOs and NGOs for general comments through the UN Secretary-General. Although the Polish proposal had slightly modified the language of the Declaration to make it compatible with the language of international human rights law, it was rejected by the CHR. The CHR considered the language inappropriate for a Convention. Dorsch claims that, had the first Polish proposal been accepted, there would have been no substantial discussion on the rights of the child (Dorsch, 1994: 53). The text was based on all the principles regarding the protection of children under international law that had been agreed upon some 20 years ago – attached was the hope that there would be no discussion on the essence of these moral principles. The ten substantive articles (plus the preamble) of the first Polish draft, thus, attempted to foreclose any meaning-negotiation on a concept of childhood and children’s rights from the outset. Opening up the discursive space to renegotiate the ‘global child’ Poland’s proposal to draft a Convention on the Rights of the Child – and the haste with which the Polish government urged for its adoption – fell on dry ground. The first discussion of the Polish proposal in the CHR centred on two fundamental questions: in the light of existing legislation covering the particular status of children and in the light of the public interest that the IYC would create, was a convention really needed? And if yes, should it be adopted as quickly as the Polish government suggested (ECOSOC, 1978b)? The discussions show that opinions regarding the proposal followed the East-West divide, with Eastern states supporting Poland’s initiative14 and Western states questioning the proposal15 as well as the time frame. Following this polarized discussion, the Secretary-General invited the Member States of the United Nations, IGOs and accredited NGOs to submit comments and observations on the Polish proposal. Of the then 152 UN Member States, only 35 responded to this invitation, signalling a clear lack of interest in the

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project. And yet, these comments provide a differentiated picture of arguments in favour and against the proposal. Most countries in their general comments did not question the idea of drafting such a convention.16 In fact, of the 35 general comments by Member States of the CHR received by 8 March 1978, only the comments by the Australian government and the UK government evidenced open scepticism about the project of formulating such a convention.17 Australia maintained that the need for such a convention should be examined in detail only after the IYC activities were finished. The government of the United Kingdom was even more reluctant to speak in favour of the proposal, stating that it ‘[...] will, in principle, support the concept of a convention on the rights of the child if it is the will of the majority of Member States that there should be one’.18 While supporting the project of a Convention per se, most other Western countries responding to the proposal were still rather sceptical with respect to both its content and the time frame envisaged.19 Outright support for the idea, the text and the time frame was expressed by all communist regimes, but also certain Islamic and developing countries. Apart from questioning the wording and time frame of the first Polish proposal, the comments that were delivered by the Member States of the CHR pointed to a perceived insecurity of many governments with regards to the desired content of such a convention, the legislation in place to protect children and their rights, and the expertise existing with regard to children’s issues. The comments by France and the Federal Republic of Germany both invoked the necessity to consult ‘a group of experts’ before proceeding with the formulation of such a convention.20 These suggestions imply that governments, in general, did not dispose of much knowledge concerning the various legal instruments for the protection of children already in place and the various contexts in which children deserved particular protection. While many Member States’ responses conceived of the Polish draft as adequately reflecting an international consensus on which children’s rights to enshrine in a convention,21 some comments, such as the Swedish one, pointed to the possibility that perceptions of children and children’s rights might have changed since the 1959 Declaration: ‘Since the adoption of the Declaration, views on the situation of the child have developed in many parts of the world. It is clear, for instance, that in many countries, views on the family, on marriage, the relations between children and parents and on the child as an individual having its own needs and rights have undergone important changes.’22

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Broadening the child’s rights agenda – the 1979 Warsaw Conference An analysis of the discursive practices through which governments, IGOs and NGOs started negotiating the international meaning of childhood and children’s rights allows the conclusion that the process preceding the actual gathering of government representatives for the purpose of drafting a Convention on the Rights of the Child saw various stages of indirect agenda-setting. First, by means of the comments in which many states voiced their concerns for particular issue-areas they had missed in the first Polish proposal, and second by means of an international conference that took place in Warsaw in January 1979. The conference was organized with the aim of drafting a new proposal alongside the suggestions made by governments, IGOs and NGOs. This second agendasetting process not only seized many of the suggestions made by Member States but also added a few, most interesting new dimensions to the text that should later form the basis for discussion (Stöcker, 1979: 93). The comparatively large number of comments on the first proposal made by Member States, IGOs and NGOs with regard to general and particular human rights instruments pointed to the desirability of both strengthening existing legal instruments specialized in children (the 1959 Declaration) as well as examining whether a new convention was consistent with general human rights documents (Universal Declaration and the two Covenants). This exercise was the primary objective of the 1979 Warsaw Conference on the Legal Protection of the Rights of the Child, hosted by the Polish Association of Jurists (for an account see: Stone, 1979). The conference was staged in order to provide the UN community with a more acceptable Polish draft that might, nevertheless, present Poland as the sponsor of the Convention. It was chaired by Prof. Adam Lopatka, then President of the Polish Association of Jurists and later the chairman of the open-ended Working Group that drafted the CRC. Two high-profile NGOs, the International Commission of Jurists (ICJ) and the International Association of Democratic Lawyers (IADL) attended the Warsaw Conference,23 as well as numerous jurists from Poland and other Eastern and Western European countries, and representatives from several bodies of the UN (Hodgson, 1992: 276; LeBlanc, 1995: 17; Stone, 1979).24 Reports on the event show that novel ways of conceptualizing the child as a human being gradually moving towards independence before reaching the age of legal maturity emerged during the course of the discussions (Hodgson, 1992; Stone, 1979). At the conference, general working papers were presented by three General

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Rapporteurs, two of whom were from Western countries, among them papers on ‘The Responsibility of the Family and the Society towards the Child’ and ‘The Evolution of the Concept of the Rights of the Child’.25 The author of the former paper put forward the following argument: I also welcome the giving of legal authority on certain matters to children at ages below 18, on the grounds that (a) development is and should be recognized as a gradual process and not a traumatic leap, and (b) parents should be encouraged to relinquish their authority over their children as soon as the children show a willingness and ability to take on this responsibility for themselves. It is the immature parent who wants to keep his child dependent on her or him. The successful parent will teach the child as early as possible to make his own decisions and abide by their consequences. (Stone, 1979: 557) While the direct influence of such innovative arguments cannot be accounted for here, the Conference’s final document contains a couple of noteworthy points which reflect a change in direction with regard to children’s rights. The document is still strongly accented towards a protectionist view of children and childhood. Nevertheless, in the principles formulated for the legal protection of the rights of the child, the final document of the 1979 Warsaw Conference states very early in the text ‘[...] both the State and parents should respect the right of the child to be consulted about its welfare whenever the child is in a position to express such opinions’.26 Despite a limitation of the areas in which children’s voice matters – ‘welfare’ – this principle introduces a notion of the child as a speaking subject with his or her own interests and right to be consulted, rather than a vulnerable, ‘mute’ object of charity. The principle is reiterated in the next paragraph in which the partnership of children in decisions on the content and form of programmes of education is underlined (Secretary General, 1979: para. 5). Finally, and most importantly, an evolutionary concept of children’s rights is expressed in the subsection on health, paragraph 10: As a child becomes older and more responsible its own views on the events which will shape its future become increasingly important. Even before it reaches the age of legal majority, it should be able to participate in any major decisions about its physical and mental health [emphasis added, A.H.]. In order that its participation should be both free and informed, the child should have access to full information

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and independent advice, and procedures should be made available for the resolution of differences between the views of the child and those of his parents. (Secretary General, 1979: para. 10) This section very clearly, and much more openly than any of the Member States’ comments, expresses an evolutionary image of the child, which allows for increasing maturity, responsibility and individual judgement on the part of the child. The lines of reasoning resulting from the Warsaw Conference also evidence that the ‘child’ whose rights were at stake was no longer considered the young child not yet capable of expressing his or her wishes or reasoning about his or her interests. Rather the proceedings of the Warsaw Conference show that the potential new Convention covers a much broader notion of childhood well into the years of adolescence in which the capacity to think and act independently and responsibly was gradually evolving. These expansions of the concept of childhood and the changing identity of the child in international politics opened up an enormous linguistic space within which to accommodate a new image of the child. The second Polish proposal The second Polish draft doubled the number of substantive articles, including many of the Member States’ suggestions and the outcomes of the discussion among lawyers from East and West. The document which formed the basis for discussion in the Working Group was much more concrete than its predecessor, most notably by defining both beginning and end of childhood in Article 1: ‘every human being from the moment of birth to the age of 18 unless, under the law of his state, he has attained his age of majority earlier’ (ECOSOC, 1979b). The vague terminology avoiding the assignment of duty-bearers in the first draft – ‘the child shall enjoy’ – changed to a clear recognition of the primary responsibility of States Parties for the fulfilment of the obligations specified in the draft, such as ‘States Parties shall undertake to ensure’ (ECOSOC, 1979b). In the new text, the Polish government tried to meet the language requirements for a ‘proper’ human rights Convention. Of utmost importance, though, is the departing of the second proposal from an image of the child as an entirely vulnerable human being to a less static perspective that takes into account the process of maturation and the evolving capacities of the child in Article 3(2): ‘The States Parties to the present Convention undertake to ensure the child such protection and care as his status requires, taking due account of the various stages of his development in family environment and in social relations [...]’ (ECOSOC, 1979b).

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Article 3(2) also requests that in all judicial and administrative proceedings affecting a child that is capable of forming his own views, an opportunity shall be provided for the views of the child to be heard [emphasis added, A.H.], either directly or indirectly through a representative, as a party to the proceedings, and those views shall be taken into consideration by the competent authorities [emphasis added, A.H.]. Article 7 of the second Polish proposal, finally, grants to the child [...] who is capable of forming his own views the right to express his opinion in matters concerning his own person, and in particular, marriage, choice of occupation, medical treatment, education and recreation. (ECOSOC, 1979b) Considering the international perspective enshrined in the 1959 Declaration and the views expressed in Member States’ comments as well as during the first discussion in the CHR, this digression from a purely welfarist, protectionist stance on children regarding them as ‘mute’ objects of compassion represents a notable novelty in international discourse on the rights of the child. Nevertheless, it should be noted that the wording of the article provides for expression of opinion on the part of the child, but not for explicit recognition of this opinion in decisions concerning his or her person. It is also clear from the range of matters in which the child should have a say that Article 7 attempted to restrict freedom of expression exclusively to the family sphere – it did not envisage that children should express their views in public or vis-àvis public authorities. However, as has been concluded by Price Cohen, who as an NGO observer participated in the drafting, Article 7 ‘laid the foundation for a total change in the concept of children’s rights [...]’ (Price Cohen, 1997: 389). Per Miljeteig-Olssen, Norwegian representative in the drafting process, also contends that ‘[t]he original Polish proposal has been rewritten, elaborated, and expanded to a degree that I doubt anyone would have imagined in 1978’ (Miljeteig-Olssen, 1990: 150). The ‘funnelling process’ from global to local context One can conclude from assessing the conceptualization phase of the CRC that the IYC provided an excellent window of opportunity for renegotiation of a global understanding of childhood as well as a notion

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of children’s rights in international politics, for state and non-state actors alike. The IYC created considerable space for non-governmental actors to become involved in the norm-setting activities related to the future CRC – a point of access that was not provided to NGOs in other standard-setting processes. Generally, the analysis of discursive interaction in the agenda-setting phase of the treaty demonstrates that no UN member state fully rejected the idea of such a specialized human rights document for children. The preliminary discussions in the CHR as well as the various comments on the first proposal clearly evidence that children were seen as a particularly vulnerable subgroup of human beings, and, thus, as entitled to special rights and special protection under international law. While the general proposal to fortify international protection of the rights of the child was not contested, the conceptualization phase of the CRC made it more than obvious that many state actors were not content with simply accepting an understanding of the child that had been internationally agreed in 1959. The discussions in the CHR as well as many of the Member States’ comments evidenced that governments were unsure about international consensus on such questions as who should be considered a child, and what kind of protection and which rights this child should be granted. On the one hand, many states implicitly admitted an insecurity as regards an acceptable global vision of childhood and children’s rights, on the other, they attempted to create room for discursive manoeuvre: they did so by pointing either to the considerable amounts of knowledge brought by IGOs and NGOs or by making reference to new actors that had entered the UN arena – the newly independent countries of Asia and Africa – who ‘ought to be given an opportunity to influence the drafting of the new convention’.27 None of the NGOs, surprisingly, while stressing their own expertise and the need to consider the outcomes of the IYC, referred to the possibility that both national and international understandings of childhood and children’s rights might have changed in the past decades. As has been demonstrated, the conceptualization phase that preceded the actual drafting process within the institutional framework of the Informal Working Group was characterized by the introduction of certain novel elements with regard to the notions of the ‘child’ in international politics – most notably with the 1979 Warsaw Conference on the Legal Protection of the Child. The outcomes of this conference showed the strongest shift in perspective as regards the legal personality of the child in international politics and the empowerment of the child vis-à-vis parents, public authorities and the State at large. It marks

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a significant departure from a language of ‘legal protection of the child’ (which was the title of the Warsaw Conference) acknowledging that rights could be exercised by children themselves, rather than only by adults who represent children’s interests and, thus, exercise these rights for children. The Warsaw Conference, thus, which was the main source of inspiration for a revised Polish proposal, must be seen as the decisive event and platform for the emergence of a much broader notion of children’s rights and an understanding of the child’s subjectivity as endowed with participatory rights.

6.3 Initiating the drafting of a new Convention on the Rights of the Child The principal forum for the ‘making-of’ the CRC was the open-ended Working Group of the Commission on Human Rights, with its often piecemeal discussions over appropriate wording. The deliberations in the Working Group were then discussed and approved in the CHR itself – a forum in which more general ideas on the place of the child in international politics were expressed. The latter body is composed of governmental representatives, with a few exceptional occasions for other international actors (IGOs, NGOs) or independent experts to participate. Accordingly, the Commission has often been described as an utterly political body of ‘horse-trading’ (Alston, 1992: 139). Alston, in his 1992 résumé of the role of the CHR in the UN human rights regime, concludes that, until the 1960s, standard-setting was the primary terrain of the CHR (Alston, 1992: 134). After a period of low activity in standard-setting activities between 1961 and 1976, in which the principal role of the CHR was to act as ‘technical advisory body to the General Assembly with a limited range of issues’ (Alston, 1992: 134), it entered a new phase of standard-setting in 1977 when being assigned the task of drafting a Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (henceforth called the Convention against Torture) by the GA. The following year, the Polish government chose the Commission in 1978 as the appropriate UN forum for launching its initiative to draft the CRC (Alston, 1992: 135–136). The 43 members of the CHR met each year for a single session that, from the early 1980s onwards, lasted for six weeks with an ‘extra week for pre-sessional working groups’ (Alston, 1992: 196). Many of these sessions – including those related to the drafting of the CRC – proved to be fraught with political controversies and symbolism, reflecting more general points of discontent between East and West, North and South. Usually, a lengthy

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agenda also impeded any in-depth involvement with more substantial issues. The open-ended Working Group of the Commission on Human Rights Following the indirect agenda-setting that had taken place in between the first and the second Polish proposal and the first preliminary debates on the scope and content of such a Convention, an informal Working Group was established by the CHR in 1979, assigned to draft the possible Convention on the Rights of the Child. The CHR had established such Working Groups before, for example for the drafting of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families that was finally adopted in 1990 (UNGA, 1990). Although ECOSOC’s rules of procedure contain certain regulations for the establishment of the Working Group, the decisions on the form and working procedures of any such working group are generally taken by the establishing organ (in this case the CHR). While the institutional framework of the CHR mainly served as a forum for discussing larger philosophies and purposes of the Convention under construction, the Working Group was the actual place for transforming these larger ideas into legally binding principles. This informal Working Group normally met each year during the week before the regular sessions of the CHR. Ensuing discussions in the CHR, thus, often reflected the controversies that had emerged within the Working Group for the drafting. The open-ended character of the Working Group meant that basically every member state of the UN could participate in the drafting process. In principle, therefore, the Working Group was open to all members of the UN on a voluntary basis – and some states made extensive use of their right to participate. NGOs in the Commission on Human Rights and in the Working Group Considering the circumstance that, generally, many NGOs working in the field of human rights attempt to accuse governments of infringing these rights the CHR has always been a forum in which NGO involvement was met with the highest scepticism and suspicion (Alston, 1992: 202 ff.). Accordingly, within the CHR itself, NGOs have had very little opportunity to become involved in the discussions, although they have sometimes been allowed to make short statements in front of the Commission’s members. This also applied to the CRC. All in all, 18 NGOs were given the possibility to make statements in front of the

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Commission regarding the Question of a Convention on the Rights of the Child. However, between 1978 and 1988, only three NGOs made statements, while the majority of statements were made after the second reading of the Convention.28 In contrast to their limited possibilities to participate in the CHR, access to the open-ended Working Groups in charge of drafting international legal documents has been less difficult for NGOs. Accredited NGOs with consultative status at ECOSOC can offer their particular expertise with regard to specific issues discussed within the bodies of ECOSOC. Once admitted to a specific standard-setting exercise, the degree of their conversational rights then depends on the composition of the Working Group as well as the ‘benevolence’ of its chairman. Over and above the formal discussions, however, an NGO’s core lobbying often takes places outside the conference rooms, in the corridors, cafeterias, even toilets of the UN buildings. In some cases, NGOs organize informal events during which they hope for an open and less politicized dialogue between state and non-state actors. Procedures of the drafting At the beginning of each session the Working Group elected its chairman and continuously re-affirmed the Pole Adam Lopatka in his role.29 The chairman of a Working Group generally disposes of considerable influence on the proceedings and content of the debate and adoption of articles and, beyond that, has the primary authority over assigning speaking rights to observers and non-governmental participants. Concerning decision-making procedures, the Working Group operated by consensus – the procedure commonly used in human rights treatymaking. Consensus meant, ‘a process which does not so much denote support, as it does a lack of objection’ (Price Cohen, 1990a: 42). This had implications both on the interaction rights of participants as well as on the proceedings of the discussion. In terms of participatory status, adopting by consensus means that even those states that formally did not have the right to vote (every non-member of the CHR) were not discriminated against in their speaking rights during the drafting. To be classified as non-voting observer also did not make any difference. Following Cantwell, one of the most faithful NGO participants to the drafting, the consensus-method also impacted on the drafting process in several significant ways, notably in terms of how discussions proceeded. First, it considerably slowed down the discussion, since every article was discussed until all participants could accept the text as it stood. Second, it resulted in the abandonment of certain proposals,

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although the majority of participants spoke in favour of these proposals. The positive ramification of this procedure, however, was that the unanimity with which articles were finally adopted ‘clearly facilitated the passage of the draft Convention through the higher bodies of the UN system’ (Cantwell, 1992b: 22). The parameters for drafting the text were the following: first, various delegates were allowed to comment on proposals for articles and wording in the form of a general discussion. This was followed by a chance to voice counter-proposals. In case a compromise was difficult to find, a ‘drafting group’ was established which consisted of on average five to ten delegates (with at least one delegate of the contra-faction). Negotiations in the drafting groups usually lasted no longer than 10 to 15 minutes and were scheduled mostly outside the official sessions of the Working Group (Dorsch, 1994: 77). As several authors have outlined, consensus in decision-making forums such as the Working Group mostly implied ‘agreeing not to disagree’ (Cantwell, 1992b: 22; Price Cohen, 1997: 405). The regular procedure provided that, when an article had been adopted at first reading by the Working Group, it was sent to the Secretariat and specialized agencies for technical comments, before being finally agreed upon at the second reading. Detrick states that for each year of the drafting the same procedural route was followed (Detrick, 1999: 2). The open-ended Working Group would first draft individual articles and then report on the drafting process to the Commission. The Commission then discussed, and ideally approved, this report. Then, the Commission would report to ECOSOC with further discussion and approval. ECOSOC, finally, would report to the GA, which would, in turn, discuss and approve the Working Group’s results. Due to time constraints and the fact that official representatives to the UN frequently participate in several working groups and other forums simultaneously (especially those from developing countries), discursive interaction in UN law-making often takes place indirectly (i.e. not by actual verbal exchange), through the distribution of working papers and notes. In the case of the UN CRC, working papers suggesting the introduction of a new article or the modification of an existing one were distributed regularly prior to the sessions of the Working Group so that sponsors of these working papers did not have to introduce them in a lengthy statement. The influence of an individual delegation’s proposal, thus, can often be observed by looking at the ensuing discussion, in order to see how far a working paper’s suggestions were used in the wording and content of the article being drafted. This applies particularly to those participants whose interaction rights

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in communicative exchange are less favourable, such as NGOs, since their rare contributions to the discussions are seldom recorded in the summary records and reports. Parallel drafting of the Convention against Torture An especially noteworthy particularity of the CRC drafting process is the fact that, between 1980 and 1985, its sessions took place in parallel to the drafting of the UN Convention against Torture – the two Working Groups were situated in the same corridor (Cantwell, 1992b: 23) and many of the delegates were participating in both events. Van Bueren, who, as representative of AI participated in both events, reports that there was a significant crossover between the two law-making events, not so much in terms of content but in terms of policy-making procedures (especially the involvement of NGOs) and of Cold War dynamics (van Bueren, 1998: fn. 97). The Torture Convention was commonly perceived as a Western initiative (largely inspired by AI, together with the governments of the Netherlands and Sweden), while the future Convention on the Rights of the Child was considered a project of the East. As Cantwell reports: ‘[W]hen there were special political problems in one Working Group, they were immediately felt in the other’ (Cantwell, 1992b: 23). Apart from these political issues, there were also procedural problems arising out of this parallel drafting, since many countries had only one delegate at the CHR who had to cover both drafting processes. The ramifications of these peculiarities of the institutional setting will be discussed in greater detail below. Ramifications of the East-West and North-South divides The diplomatic climate between States Parties, which most characterized the discussions in the Working Group that drafted the CRC, was, during the early years of the drafting, mainly one of Cold War tensions between Western liberal democracies and the USSR plus other countries under communist leadership. It was, over the years, gradually replaced or at least complemented by a growing friction between the newly independent countries of the South (Asia, Africa) on the one hand and Northern countries (including Western and Eastern Europe) on the other. However, this analysis of discursive practices will, at various points, argue against the simple assumption that it was the West that forced liberal children’s rights into the debate, with the East responding with economic and social rights. In particular, the rather innovative and liberal perspective created by the second Polish proposal had already obstructed a Cold War line of division between communist countries

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referring exclusively to the ICESCR and Western liberal democracies speaking in favour of both Covenants and the ICCPR in particular. It is noteworthy that in 1983 the USSR introduced a proposal to the Working Group in which it called for the recognition of the child’s enjoyment of all basic human rights ‘in the spirit’ of the ICESCR and the ICCPR.30 The analysis of communicative exchange will also show that discursive coalitions shifted when the Cold War confrontation gradually wore off after 1985. The end of the negotiations of the Torture Convention and the politics of ‘rapprochement’ promoted by Gorbatchev fostered a spirit of harmony between East and West, while producing friction with other non-Western discursive coalitions. Newly independent countries and Muslim countries gradually took over the contestation of some of the most substantial provisions of the draft Convention in these later stages of drafting (1988–89). If the Cold War context had had a strong influence on the project of formulating a Convention on the Rights of the Child, one would also have expected it to follow that UN Member States from the Western bloc would have attempted to obstruct the project by rejecting the need for a special convention for children. As has been stated before, however, virtually none of the Member States’ comments seriously questioned the idea that children should have particular rights and particular protection. The following two chapters will evidence how this idea of a special catalogue of human rights for children was continuously broadened during the drafting and how connections between traditional images of the child and childhood and innovative ways of capturing the gradual emancipation of the child (particularly from his or her family background) resulted in a gradual shift of perspective as regards the personality and legal status of the child in international law.

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7 Discursive Practices within the UN and the Transformation of a Global Childhood Paradigm

If one looks at the second Polish proposal – which set the agenda for discussion – and the text of the final Convention that was adopted in 1989, it is clear that the Polish draft changed significantly during the ten years of negotiations. Not only was the wording of suggested articles altered, but several new items were also added to the catalogue of children’s rights. Accordingly, while the second Polish proposal was the main reference point for discursive interaction, the initiation phase for the drafting analysed in the previous chapter still left considerable room for the insertion of new ideas, new knowledge, frameworks and a variety of international debates. Considering the changing identity of the child in international politics, even the discussion about the very title of the Convention, which re-emerged at several points of the drafting, hinted at a shift in perspective. There were two aspects of the Convention’s title that figured in the drafters’ discussions: (1) The rights-holder covered by the Convention: should it address ‘children’ as a group or the ‘child’ as an individual?1 (2) The terminology used for the nature of rights contained in the possible Convention. Concerning the first question, the title of the Convention as well as the discussions referring to it reveal that most drafters pleaded in favour of ‘the child’ in singular, placing the child as an individual at the forefront, rather than submerging him or her in the vast totality of children. With regard to the second question, suggestions for terminology ranged from ‘protection of the child’, ‘protection of the welfare of the child’, ‘protection of the rights of the child’ to, finally, ‘rights of the child’. There were several attempts by delegates to question the need to directly address the rights of the child, implying that the protection and the well-being of 159

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children should be the main concern of such a Convention. Most notably, this perspective was put forward by the Senegalese delegate during the second reading, who criticized the title of the draft and proposed to rename the Convention as ‘A draft convention on the protection of the child’ (ECOSOC, 1989f: para. 25; see also: Johnson, 1988: 4). This suggestion, however, was met with serious criticism on the part of several delegations (the Netherlands, Norway and Argentina), who argued that such a new wording for the title was ‘too restrictive’ (ECOSOC, 1989f: para. 26). Cynthia Price Cohen, representing the NGO Human Rights Internet in the drafting, upholds that participants entered the Working Group ‘armed only with old fashioned models of children as being in need of “care and protection” ’ and that there ‘was no idea that children’s rights should embody the “three P’s” of protection, provision and participation’ (Price Cohen, 1997: 404). Shortly after the drafting process was finished, Miljeteig-Olssen, Norwegian representative in the drafting, claimed that a ‘new conceptual framework for the understanding of children’s rights’ (Miljeteig-Olssen, 1990: 150) evolved during the course of the drafting. It is doubtful that, as Bennett claims, the 1959 Declaration represented ‘the centrepiece in the current landscape of international children’s rights and the reference point for the Convention drafters’ (Bennett, 1987: 17). While the centrality of the 1959 Declaration was strongly reflected in the general discussions within the CHR, the deliberations in the Drafting Group took a completely different turn, thereby rejecting the emotional and moral appeal of the 1959 Declaration. The following analysis of the discussions that took place in the Working Group, the CHR and the General Assembly, will uncover the various argumentations and interdiscursive links that allowed the pioneering element of the ‘evolving capacities’ of the child to gradually expand into a larger picture of the child as a partly independent individual being and rights-holder with an evolving capability to actively relate to these rights in international law.

7.1 Interdiscursivity – international politics, childhood and the family An exploration of the modes in which the drafters of the Convention connected the various images of the child both to larger debates in international politics as well as to novel perspectives of the child evidences that the full range of traditional child images (innocent, imma-

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nent and irrational child) have figured in all the CHR debates and were also reflected in the Working Group, albeit in a more legal-technical manner. However, as the first sections of this chapter have shown, these traditional images were immediately and constantly questioned by various proponents of the idea of the child’s ‘evolving capacities’, thus contributing to a novel identity of the child as subject of law rather than object of kindness. While many proponents predominantly adhered to the image of the child as particularly innocent and vulnerable – thus, emphasizing the whole purpose of the drafting exercise as the creation of a document that should guarantee special protection – they gradually came to suffuse this discourse with a notion of a child’s evolving sense of reasoning and independent thought. Sub-discourse 1: Vulnerability, happiness and the image of the innocent child in the Commission and the Working Group It is evident from the protocols recording the discussions in the CHR and the Working Group that the whole project of formulating a convention for children was inspired by humanitarian values similar to those that were enshrined in the 1959 Declaration. Particularly in the CHR, the image of the child as an especially vulnerable (if not the most vulnerable) and innocent part of humanity was prevalent all throughout the drafting process.2 The influence of this discourse of innocence was further emphasized by rather emotive language, as seen in the following: They were the children of famine, malnutrition and illiteracy, the children of millions of refugees, victims of armed conflict and concentration-camp inmates who were counting on international solidarity to help them out of their desperate situation.3 The semantic field of innocence with its emphasis on victimization,4 weakness,5 tragedy,6 defencelessness,7 distress and need on the part of children with regard to all cruelties inflicted upon them was also matched by the passive constructions of the child in individual argumentations. Children were ‘abducted’,8 ‘snatched’,9 ‘tormented’,10 ‘suffering’11 or ‘exploited like virtual slaves’,12 to name just a few of the most widely used terms expressing the helplessness of the child vis-à-vis immoral actions inflicted upon them by adults. One of the most fervent and emotional statements articulating this particular vulnerability of children was made by Mr Vittachi, Deputy Executive

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Director of UNICEF, at the 1986 session of the Commission on Human Rights: Such social mobilization to protect the rights of the child would only be achieved by making it unconscionable for any country to let children die when their death could be prevented, allow them to be disabled and stunted when their bodies could be whole, leave them imprisoned in illiteracy when the means of education were available or allow them to be neglected, abused, exploited and threatened with annihilation before they had barely begun to live.13 Interdiscursive links between the topos of the innocent and vulnerable child on the one hand and the topos of the need to formulate special norms for vulnerable groups of human beings in international politics produced a claim in which the purpose of drafting a new catalogue of international norms for children was, basically, to prevent such suffering in the future and to protect the child from future harm to its wellbeing.14 Generally, the norm against which an unacceptable childhood was defined was one of a happy childhood taking place in a peaceful atmosphere of protection, affection and understanding within the family context. Frequent adjectives such as ‘tragic’, ‘sad’, ‘distressing’, ‘wretched’, ‘desperate’15 supported this juxtaposition of the brutalities many children were exposed to with the sorrow-free and happy phase they should be entitled to, ideally within a family environment or the ‘home’.16 Repeated juxtaposition of the living reality of homeless children with the ideal family environment emphasized this international norm of childhood.17 The semantic field of ‘tragedy and distress’ was particularly strong in the discussions of the CHR – consequently, suffering and sadness as the binary opposition of happiness underlines the particular role that an ideal of happy childhood played in the Commission’s discussion of the question of a Convention on the Rights of the Child. More common, however, were interdiscursive links between international conflict and the distress of innocent children.18 As shown earlier, international efforts on behalf of children were driven by the conviction that children were the first and most helpless victims of war. Earliest international documents, thus, supported the belief that the child should be treated essentially as a zone of peace in international politics. This image was literally invoked by Mr Vittachi of UNICEF in the 1986 CHR debate, when he introduced Ms Thedin of the

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Swedish NGO Rädda Barnen (Save the Children Sweden). He supported the image of Rädda Barnen as ‘the originator of the concept of children as a neutral zone of peace’.19 Other argumentations reflected the same concern for children suffering ‘from the brutal realities of relations among nations’20 and, as a consequence, contended that ‘[...] a spirit of international cooperation was also essential in order to put an end to the carnage of wars and disturbances in which children faced death, starvation and disease’.21 Claims that connected the topos of child protection with a larger international topos of war and peace also contrasted military expenditure with the suffering of children: ‘When it was considered that hundreds of millions of dollars were spent on armaments while many thousands of infants died throughout the world for lack of care, it was impossible to doubt the value of so-called “progress” ’.22 Similar concerns were expressed by the Women’s International Democratic Forum, which, in a working paper disseminated to the Working Group, linked international military expenditure to children’s welfare, especially in developing countries. Where members of the Commission on Human Rights referred to the rights of children to be protected against misery in times of war, they did not aim at the promotion of the rights of children as individual human rights but rather appealed to the moral rights of the young generation as a whole against (adult) humanity as a whole, using a child-saving vocabulary that aimed at the protection of children in and from emergencies rather than the protection of their universal, basic and individual rights. The frequency with which participants spoke about ‘protecting children’, ‘the protection of children’, the ‘welfare of the child’ or the ‘well-being of children’ omitting reference to ‘rights’ evidence the prevalence of a welfarist and paternalistic discourse on the child and the child’s rights in the CHR debates. Frequent recourse to the 1959 Declaration and even the 1924 League of Nations’ Declaration underlines the protectionist stance with regard to children as ‘objects’ of welfarist intervention. Taken together, these comments indicate that the most vulnerable groups of children worldwide were taken as the main concern of the future convention, rather than the idea that one should formulate a convention that would apply to all children, no matter in what situation. The influence of a discourse on the innocent and vulnerable child was, most generally, reflected in the Working Group by the fact that those provisions of the draft Convention dealing with particularly vulnerable groups of children or children in especially difficult circumstances were gradually expanded throughout the drafting. Moreover, most

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articles that explicitly aimed at protecting children in particularly grim situations or particular groups of children were rapidly adopted at the second reading with neither comments nor opposition (Johnson, 1988). Prevalent images of the child as particularly vulnerable had an effect on the text in two dimensions: (1) articles were drafted which aimed at greater protection of children in particularly difficult circumstances (protection for children without parental care, handicapped children, refugee and minority children, juvenile delinquents) and (2) articles were drafted that aimed at guarding childhood against certain ‘realities’ and miseries, universally applicable to all children (protection from war, hunger, disease, exploitation, child abuse and neglect, drug abuse, torture, death penalty, sale and trafficking). Articles, such as the article on all forms of exploitation proposed by Poland (draft Article 18) were expanded and split into several provisions dealing with child labour (Article 32), sexual exploitation (Article 34) and trafficking (Article 35). Separate articles for handicapped children (Article 23), refugee children (Article 22), children without parental care (Article 20), children of minorities and indigenous peoples (Article 30), protection of children from illicit use of narcotic drugs (Article 33), and protection of children in armed conflict (Article 38) were formulated so as to enhance the legal protection of these groups of children at particular risk. None of the articles on special groups of children had figured in the basic text for discussion and all were adopted without much substantial discussion as to their necessity. Sub-discourse 2: The ‘future of mankind’, international development and the image of the immanent child in the drafting The conventionalized discourse of the ‘immanent child’, that is, the child as the future adult who should be educated in order to become a reasonable member of society, also figured in the discussions in the CHR and was mainly introduced through interdiscursive links with the broader international debate on development and, most generally, the concept of moral progress and civilization. This interdiscursive link, basically, likened the development of a country or region to the personal development of the individual child as a pars pro toto,23 standing in for entities like ‘humanity’, ‘society’, ‘mankind’ or ‘generation’. The overall claim that was advanced through this interdiscursive link between an ‘immanent child’ perspective and broader UN discourses on development and civilization was to identify the child as the future

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of mankind. At the 1985 session of the CHR, Mrs Ksentini, Observer for Algeria, expressed this claim as follows: Algeria strove to promote quality education which would meet the requirements of modern society and allow Algerian children access to the scientific and technical knowledge necessary for their future as citizens of a country oriented towards development and progress.24 In cases where this ‘future’ was seen more in technical than in civilizatory terms, an economistic language was attached to the child who should be protected by the convention-to-be. Linking the protection of children (topos 1) to the safeguarding of future generations in terms of economic and technological development (topos 2) in several cases resulted in the claim that the protection of children would mean an investment in the future. Mr Harder of the International Save the Children Alliance, for instance, commented in the CHR that ‘[...] the best investment which the international community could make was in its children’.25 In a similar vein, Mr Sene, Senegalese delegate, referred to the protection of children as ‘the most profitable of all investments’26 and expressed his belief that child protection was ‘a moral requirement of any civilized society’ and ‘a prerequisite for the survival of future generations’.27 The semantic field attached to this image of the immanent child was one of aspiration for a better future, both in material and in ethical terms, such as in the argumentation of Mrs Zhang, Chinese delegate, who said that her government had always attached great importance to the well-being of children, ‘who represented the future of mankind and the hope of society’.28 Mr Topwik, observer for Poland, contended that ‘if children were better cared for, better understood and better educated, future societies would be more evolved and more open to contact and co-operation. Making children the centre of concern could be of decisive importance with regard to the development of civilization and the solving of current and future problems’.29 One of the rare metaphorical contributions to the debates in the CHR summarized this moral duty to protect the future of mankind most poetically: If, as the French author Saint-Exupéry had written, every dead child might have been another assassinated Mozart, it must be acknowledged that the situation of child victims of war was a particularly shameful phenomenon. [...] Adults had obligations towards children;

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they should respect their right to a future in a world of peace, equity and security.30 Mr Benhima of Morocco, for his part, couched the discourse of children as the future of society in rather prosaic language, stating that ‘[...] children were the heart and arteries of all societies, and every society attached special importance to them as it places in children all its hopes for a better future’.31 Establishing interdiscursive links between the immanent child perspective and the advancement of humanity and civilization, thus, resulted in the claim that the principal purpose of a Convention on the Rights of the child would be to foster a new generation that, ideally, would be healthier, stronger, better educated and more reasonable, peaceful and respectful than previous and present generations. This view of the protection of children resonated with some of the UN’s most fundamental values. The Convention’s main target, in this regard, was not to alleviate injustices and atrocities happening in the present but to promote ethical and educational principles which would make the citizens of tomorrow more civilized human beings: ‘the child of today was the adult of tomorrow’.32 The ‘right’ of the child that the members of the CHR referred to with regard to the ‘immanent child’ perspective was primarily his or her right to a future. Protecting children’s rights was thus a means of safeguarding the prosperity of coming generations, not an end in itself. Meaning-conventions of the immanent child were emerging not only in the CHR, but also throughout the discussions in the Working Group, particularly in cases where the drafters discussed what kind of inherent adult the Convention should promote. Debates covered a wide range of supposed qualities of this future adult from ‘independent’, ‘individual’, ‘responsible’, ‘respectful’, ‘tolerant’, ‘a full personality’, ‘a human personality’,33 ‘a useful member of society’,34 and ‘reasonable’ to ‘peaceful’, ‘respecting human rights’, ‘respecting other cultures’, ‘morally and socially responsible’. Most of these qualities that should characterize the future adult as envisaged by the drafters were enshrined in Article 29 of the CRC that defined the aims of education. Drafters particularly supported perspectives in which the child’s talents and abilities should be developed and encouraged ‘to the fullest potential, and to prepare the child for future life’.35 NGOs, in this regard, participated actively and fiercely in the definition of how a child should be educated and what kind of future adult should, as a consequence, be raised. In 1982, the Baha’i International Community submitted a proposal to the Working

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Group which contained a list of seven different objectives of ‘training and education’, such as ‘to prepare the child to exercise the rights and undertake the responsibilities of adult life in a manner consistent both with his own well-being and with the well-being of others’ (ECOSOC, 1983c). The NGO Ad Hoc Group as a whole sponsored a proposal in which the child’s respect for nature was introduced (ECOSOC, 1984a). A proposal by the World Association for the School as an Instrument of Peace, finally, suggested to fortify the future adult’s awareness of ‘his rights and duties’ and the necessity ‘to develop an attitude of peace, publicspiritedness and universal brotherhood’ (ECOSOC, 1984a). Mostly Western states but also Poland emphasized the importance of preparing the child ‘for an individual’36 and ‘independent life in a free society’.37 Through the discursive connection between core UN values and the image of the immanent child, childhood was imbued with a teleological element that projected the protection and promotion of children’s rights onto the future of mankind. Yet, within the Working Group this notion of the child as an ‘immanent adult’ was suffused with an ideal of individuality and independence, thereby shifting the focus from children as a group to the individual child and his or her contribution to a civilizatory progress. Emancipatory elements and personal freedom, thus, were connected to a global ethics of freedom, brotherhood and peace. Sub-discourse 3: The irrational child, parental responsibilities and the ‘best interests of the child’-clause (Article 3 and Article 5) While the norm of child protection and the discourse of the vulnerable, innocent and weak child figured most prominently in the CHR, it has been a more intricate task to identify outright paternalistic perspectives on the child as an irrational, unruly human being that should not so much be protected from the evils inflicted upon him or her by adults, but be protected from him or herself, that is, from the harm that children could do to themselves. Protection, thus, would be promoted here as protection ‘against irrational actions’ on the part of the child (Freeman, 1983: 55). However, certain parts of the CHR and the Working Group debates pointed to the influence of this traditional discourse on the unreasonable and irrational child in participants’ conceptions of children. Introducing the family sphere in the Commission on Human Rights Most existing international legislation in the twentieth century had reflected predominantly a concern for the innocent and the immanent child with a broad reference to mankind and society as bearing the

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main responsibility. Very few international treaties actually ventured to define more precisely the duties, responsibilities and rights of those in charge with protecting the child and his or her rights. However, during the drafting of the CRC in the Working Group, questions of parental responsibility and guidance, frictions between child rights and parents’ rights and, inherently, the question of who should take care of an innocent, incomplete as well as irrational human being gradually increased. As a result, the hitherto private family sphere was introduced as one of the most fiercely debated subjects in the drafting. Interdiscursive links between the private family context and larger international norms revealed a tendency on the part of many drafters to ‘bargain’ for adults’ or parents’ rights against children’s rights, seeing them as a zerosum game rather than complementary rights dimensions. Implicitly, a notion of the irrational child entered all discussions centring on parental responsibilities for the upbringing and personal development of the child and all discussions on the extent to which one should give certain libertarian rights to children. The irrational child and paternalistic discourse in the Commission on Human Rights In the CHR, certain delegates’ arguments revealed a strong paternalist accent – representing a discourse which conceives of the child’s interests as inferior to his or her parents’. For instance, in the CHR, Mr Jäger of the FRG stated that the wording of article 5 dealing with the responsibilities, rights and duties of parents, was too vague. Account should have been taken of possible conflicts between the rights of children and those of parents. Conflicts of that kind could arise, for example, over giving children access to presentations of the electronic media [...].38 Many members of the CHR also referred to supposedly differing perspectives on the family in their various cultures, thereby pointing to possibilities for friction between the CRC and societal and intra-familial practices, such as religious and traditional customs and corporal punishment. Others, however, emphasized that the child should be mostly considered as an individual human being, partly detached from his or her family. Ms Martin, observer for Canada, for instance, contended that [t]here was a tendency to subsume the rights of children in the rights of their parents. While it was true that certain rights of children were

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inevitably dependent on the parent for their enjoyment, they were not thereby rights accruing only to the parent.39 The discussions in the CHR evidenced that there was a tug of war between those members who wanted to primarily safeguard the rights of the individual child and those who, albeit attempting to centre on children, argued in favour of adults. These members feared that an excessively liberal stance towards children’s rights would undermine parental authority. In the CHR, the Canadian delegation was one of the members to emphasize most fiercely the possible frictions between children’s rights as envisaged by the future Convention and the rights of parents.40 Private life and the triangular relationship of child-family-State in the Commission It is clear that, although most of the discussions in the CHR focused on international (public) dimensions of child welfare and protection (war/peace, poverty/development, education for tolerance and respect), the argumentations above introduced private family life into the debate by addressing the delicate triangular relationship between the child, his or her parents (and other legal guardians) and the State. While some, mostly Western, countries spoke in favour of State intervention in private matters, thus trying to make room for State interference in family privacy and parental authority, many others supported a perspective of the sacred sphere of family life and the subordination of the child’s interests under those of his or her parents or other adults. In 1987, for instance, Mr Al-Khadi, Delegate of Iraq, stated in front of the Commission that [...] when drafting an international convention on the rights of the child, it was necessary to take into consideration the different laws relating to personal status and their attitudes to the family and the child, in order to produce a universally acceptable convention.41 However, it was not only Islamic states that backed up an outright paternalistic understanding of the parent-child-relationship. Certain parts of the discussion revealed that a couple of Western states also promoted conceptions of the child as an irrational, even ‘evil’ human being. In 1981, for instance, the US delegate proposed an amended version of draft Article 7 of the second Polish proposal (the article dealing

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with the child’s right to express his or her opinion). This version stated that the States parties to the present Convention shall enable the child who is capable of forming his own views the right to express this opinion effectively and non-violently [emphasis added, A.H.] in matters concerning his own person, and in particular, religion, political and social beliefs, matters of conscience, cultural and artistic matters, marriage, choice of occupation, medical treatment, education, travel, place of residence and recreation. (ECOSOC, 1981b) The adverb ‘non-violently’ clearly evidences the US delegation’s opinion that a significant proportion of children were not capable of expressing their views without showing violent behaviour. The proposal attempted to establish further thresholds before a child’s opinion would be taken into account: that it be ‘effective’ and ‘non-violent’. Paternalistic discourse and the ‘best interests of the child’-clause in the Working Group Although many of the provisions of the CRC and many of the discussions reflected an affirmation of the child as an active rights-holder, several most interesting discussions were marked by strongly paternalistic notions of the irrationality of children who should be protected from self-harm and unlawful behaviour through the protection of their rights. Throughout the drafting and the discussions in the Working Group, it became more than evident that the drafters who held the authority to determine what rights to grant to children and what lies in their best interests – and were, after all, adults – had great difficulties in reconciling the concept of evolving capacities and the greatly expanded age definition of Article 1 with paternalistic attitudes. The latter would eventually clash with the interests directly expressed and potentially claimed by the child against his or her parents or other legal guardians. This was, before all, expressed in the concept of the ‘best interests of the child’ laid down in Article 3 of the CRC and the critical discussion on who should determine what lies in a child’s best interests. Drafting of Article 3 was an especially critical enterprise, since, in its original form, it attempted to marry the concept of best interests of the child with a possibility of the child to be heard in ‘all judicial or administrative proceedings affecting a child’.

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The best interests-principle had been already contained in the basic working text that read, in Article 3(1) [i]n all actions concerning children, whether undertaken by their parents, guardians, social or State institutions, and in particular by courts of law and administrative authorities, the best interests of the child shall be the paramount consideration.42 The article introduced the duty of parents to act in the best interests of their child, thereby bringing in the private realm of parent-childrelations into the debate. Some delegates felt uncomfortable about this reference to parents but thought, nevertheless, that it would ‘provide greater protection for the child’ (ECOSOC, 1981b: para. 23). Others pointed out that ‘they did not attempt to regulate private family decisions but only official actions’.43 Drafters then slowly pushed aside the responsibilities of parents, shifting them to a separate article (Article 5) on parental responsibilities. However, when discussing how the best interests of the child should figure in all official or public actions concerning children, a bargaining process began in which one group of delegates argued that the best interests should be ‘a’ primary consideration44 and another contended that they should be ‘the’ primary consideration.45 The small difference in wording marked a great difference in legal protection, since ‘a primary consideration’ provided for possibilities that the interests of adults might prevail over those of children. Several arguments posited that ‘there were situations in which the competing interests, inter alia, of justice and the society at large should be at least of equal, if not greater, importance than the interests of the child’.46 The exchange of arguments finally resulted in adoption of the weaker term ‘a primary consideration’ – thereby showing the consensus among delegates that in some cases the best interests of the child would not prevail over the interests of third parties. The wording of the clause adopted also reveals that there was a general fear on the part of several delegates that a strong emphasis on the supremacy of the child’s interests would undermine public and private authority. Medical and scientific experimentation and the consent of the child A final case, in which interdiscursivity between the ‘irrational child’ and parents’ rights and responsibilities emerged most clearly was the discussion on medical and scientific experimentation within the framework of drafting of Article 24 dealing with health issues. For the second reading, Venezuela introduced a proposal, which contained

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a new paragraph (suggested, in the first place, by the Informal NGO Group47) on medical experimentation. The draft paragraph 24 (4) said that States Parties should ensure ‘that a child shall not be subject to any medical or scientific experimentation or treatment unless it is with the free and informed consent of the child or where appropriate of the child’s parents’.48 In the course of the second reading, the observer for Canada pointed out that there was the need to reverse the first sentence of the paragraph in favour of the parents rather than the child so that ‘the consent of the child’s parents is sought first and only then, where appropriate, that of the child’ (ECOSOC, 1989f: para. 424). The delegate of Canada also contended that in certain cases the consent of parents was difficult to obtain, for example, in ‘emergency cases’ or when ‘religious and similar reasons’ were involved (ECOSOC, 1989f: para. 424). Yet, other delegations spoke entirely in favour of the child’s consent, such as the representative of the USSR who said, ‘there should be no alternative as to whose consent was needed for the child to be subject to medical or scientific experimentation’ (ECOSOC, 1989f). Consequently, he proposed that consent should be sought by both the child and his or her parents, instead of either the child or his or her parents. Individual NGOs, such as the Children’s Legal Centre, suggested going even further by arguing that a child should have the right to ‘seek confidential treatment’ and that the future signatories of the Convention should recognize that ‘a child who is capable of understanding the nature and implications of medical treatment is entitled to consent to, or withhold consent from, any forms of medical treatment’.49 Other delegations, in turn, saw themselves unable to make a judgement in this matter, expressing ‘doubts as to whether the Working Group was competent enough to express judgement on the matter’ (ECOSOC, 1989f). This item, finally, was one of the few that was explicitly discussed and then, due to time constraints and lack of knowledge, abandoned. However, the discussion once again exemplifies the precarious nature of all discussions that revolved around the balance between parents’ rights and obligations and the child’s right to have a say. Such bargaining over the extent to which the child should have a say in the determination of his or her best interests decisively reveals the paternalistic image on the child that came to light on several occasions. Most importantly, interdiscursive links between the discourse on the ‘irrational child’ and an accentuation of the primary responsibility of parents to guide the child thus brought family privacy into the drafting process. The fundamental purpose of the Convention, as it relates to these interdiscursive links, was seen as balancing States

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Parties’ responsibilities to protect and take into account the interests of children against their parents’ responsibilities in this regard. On the one hand, balancing parents’ rights to guide and represent the child against the right of the child to make his or her interests directly heard; on the other, potentially diverging from the interests of his or her parents or legal guardians. Protection of a child’s rights, thus, basically meant paternalistic representation of his or her interests and a determination of what is ‘best’ for the child on the part of State authorities and parents. Sub-discourse 4: Reasoning, respect and emancipation – the image of the ‘evolving child’ In 1977, two years before drafting of the CRC began, the Harvard Law School Bulletin commented on a remarkable US Supreme Court case, Bartley vs Kremens, which raised ‘the question whether the State, at the behest of a minor child can oversee the right of his parents to put him in a mental institution’ (Sander, 1977). Ultimately, it was one of the most prominent ‘examples of the imminent collision between the child’s rights movement and the hitherto primacy of the parents as family decision-makers’ (Sander, 1977). Among the contributors to this Harvard Bulletin was Robert Mnookin, author of one of the most influential legal case books of the late 1970s – Children, Family, State (1978) – whose underlying legal questions were ‘who decides on behalf of the child’ and how to distribute ‘decisional power among the child, the family and various agencies of the state’ (Mnookin, 1978: xxi). A central legal principle that emerged from this debate was the principle of ‘the best interests of the child’ that should be the primary consideration in any legal proceeding.50 As will be shown here, similar collisions emerged during the drafting of the CRC: collisions resulting from frictions between the privacy of the family and parents’ authority on the one hand, and the desire of a group of drafters to emancipate the child from this privacy for the sake of greater protection. It is essential, in this regard, to look at argumentations that support a chronological rather than a threshold concept of maturity and adulthood and to account for the various expressions and circumscriptions with which delegates attempted to capture a new idea of gradual maturity and evolving capacities of the child. Comparing the discussions in the CHR with those of the Working Group, it becomes clear that the concept of evolving capacities and a chronological perspective on childhood figured much more prominently in the Working Group than in Member States’ contributions in front of the Commission.

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The concept of the ‘evolving capacities’ of the child in the Commission51 It is clear from the discussions in the CHR, that the concept of the evolving capacities of the child was promoted solely by Western industrialized states while it was fundamentally contested by others, especially African and Islamic countries.52 The Canadian CHR delegation in particular attempted to promote a perspective on the child as an individual entitled to enjoy all dimensions of human rights and to dissociate the child from his or her parents and the family at large to safeguard greater protection of his or her rights. In 1985, Ms Martin, Observer for Canada, stated that children ‘[...] were individuals, persons with rights, civil, political, economic, social and cultural rights that merited careful elaboration in the form of legal standards’.53 What is more, she was one of the few members of the CHR to directly address the child as a social agent gradually able to exercise his or her human rights directly: ‘A further complication was the fact that a child’s ability to exercise his or her rights naturally increased as the child matured’.54 In the Commission, however, it was not until after the second reading of the draft Convention that references were made which suggested a new understanding of children’s rights in the draft CRC. Arguments that promoted the idea that children should not only be objects of protection but also social agents capable of participating in the exercise of their human rights were – without exception – made by Member States from the Western group. Mrs de Santos Pais, Portuguese delegate, said, then, that the draft convention [...] unequivocally proclaimed the dual principle of the child as being both entitled to basic rights and freedoms and as being the object of social protection to ensure the harmonious development of his personality and enable him to play a constructive role in society.55 Mrs Kramarczyk, delegate of the GDR, ‘felt that the new convention not only entailed obligations for States parties to protect children against violations of their human rights but also made it incumbent upon the parties to create conditions which would facilitate active and creative participation by children and young adults in the social and political life of their countries’.56 While these contributions to the debate display a view of the child as largely an individual human being that should enjoy greater protection and participatory rights by the potential signatories of the future Convention, other statements reflect a certain

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unease on the part of delegates with regard to promoting the emancipation of the child. Ms Bryce, Observer for Australia, stated: Her delegation also understood the concern of some delegations about the possible effects of the convention on the relationship between the parent and the child. However, it felt that such concern was misplaced since the draft convention made abundantly clear the primary responsibility of the parents for their children and the right of parents to provide guidance and bring up their children according to their beliefs and customs.57 Yet, in the Commission, argumentations like these were very few, compared to the frequency of references to much more consolidated discourses on the immanent and innocent child. Definition of the child and ‘evolving capacities’ in the Working Group In contrast to the CHR, analysis of the communicative practices in the Working Group evidences that the idea of the evolving capacities was figuring prominently in the Group’s discussions and emerged in the context of various articles under construction, not only Article 12, in which it was referred to by name. One of the greatest inroads, in fact, that opened up the possibility of conferring a significant amount of existing human rights legislation upon children and to introduce a perspective of children as individual and active rights-holders was the fact that the second Polish proposal defined ‘childhood’ as the phase from ‘the moment of his birth to the age of 18 unless, under the law of his State, he has attained his age of majority earlier’.58 Although this definition provided for exceptions in case legal majority was attained earlier (interestingly, no rule was made for later attainment of majority), 18 was set as the normal threshold between childhood and adulthood, since it was the most widely used legal standard. The records of the discussions in the Working Group state that ‘there was considerable debate concerning the initial and terminal points which define the concepts of the child, as contained in the article’.59 Nevertheless, at the very first session of the Working Group, drafters did agree to use the time-span for childhood suggested by Poland as a working definition for ‘child’ in 1980. Despite this early agreement, the discussions in the Working Group evidence that drafters repeatedly experienced difficulties in matching the age span 0–18 years with their understanding of childhood,

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particularly in those articles dealing with civil and political rights seen more as rights of ‘grown-ups’ than of children. On numerous occasions, it was suggested that different terminologies be used, delimiting the phase of early childhood from the phase of adolescence and maturation. With regard to maturation, in fact, a couple of most interesting arguments were made that endorsed an earlier international standard for the end of childhood. Several delegations in the Working Group pointed out that 14 was the end of compulsory education in many countries, and the legal marriage age for girls in many parts of the world. In this regard, setting the age limit at 14 would also establish a clear distinction between the concept of minor and that of child, since the former was protected under many national legislations while the latter was not. (ECOSOC, 1980: para. 32) Others bluntly stated that ‘a person at that age [18] is not a child’ (ECOSOC, 1980: para. 36). Notwithstanding these divergences and the circumstance that many delegations opposed 18 years as the standard, the original wording was retained, since it allowed to legally declaring the end of childhood earlier. In the course of the drafting, it also became clear that many delegations had difficulties in expressing what they thought to be an evolving concept of childhood significantly reaching into the grey zone of adolescence. However, even those introducing the discursive repertoire of the evolving child into the debate often struggled to couch their ideas in concise legal wording. The Danish delegate, in this regard, undertook an especially awkward attempt, in 1981: Parents or other guardians have the right and duty to decide in matters concerning the person of the child. But the child shall, as soon as possible, have an influence in such matters. As the child gets older, the parents or the guardian should give him more and more responsibility for personal matters with the aim of preparing the child for the life of a grown-up. (ECOSOC, 1981b) The second part of the Danish proposal does not read like a legal provision but rather like a manual for education, yet addresses the notion of a chronological development of maturity and responsibility in an outright way. The chronological style of the paragraph itself captures

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the personal development of the child towards a grown-up. Other participating parties, such as the International Federation of Women in Legal Careers and the International Abolitionist Federation also took their turn at finding appropriate wording for the concept of evolving capacities. In a joint proposal, the two NGOs stated that a paragraph should be added, reading: ‘Account shall, however, be taken of the passage from childhood to adolescence, which will lead to a different approach to the rights and duties of the child’ (ECOSOC, 1983f). Both text passages as well as numerous others illustrate that the concept of evolving capacities coupled with the idea that certain civil and political rights could be enjoyed independently even before legal maturity was far from being an undisputed idea. Delegates’ difficulties to appropriately match the image of the evolving child with legal terminology (with no previous international law having reflected this idea) are also mirrored by the fact that many of them referred to evolving capacities as a concept rather than a legal principle. In 1981, for instance, when the United States introduced a draft article that provided for the child’s views to be heard in case he or she ‘has reached the age of reason’, the US delegate explained that this new article ‘contained concepts that were missing in the draft convention’ (ECOSOC, 1981b: para. 27). In the discussion that followed, the Danish delegate referred to the ‘concept that the child should as soon as possible have an influence in matters concerning his own person’ (ECOSOC, 1981b: para. 75). On other occasions, the Canadian and Australian delegations also referred to the evolving capacities ‘and the child’s need to mature into an independent adulthood’ (ECOSOC, 1987c: para. 104) as concepts.60 Thus, lacking possibilities of intertextual references to previously agreed international norms, interdiscursive links between private family law and general human rights standards resulted in considerable contestation and insecurity as regards legal terminology for the evolving capacities on the one hand, and the extent to which this concept should apply on the other. Minors, adolescents and the difficult ‘end of childhood’ The proposals quoted above did not question the use of the term ‘child’, even though some participants felt uneasy about applying the term to anyone up to 18 years. Among those questioning the upper age limit of childhood was the Finnish delegation. It attempted to reopen negotiations on the length of childhood in 1988, by issuing a proposal in which it tried to differentiate between the concepts of

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minor on the one hand and the child in its broadest sense on the other, proposing that a child who no longer is a minor means a child who (a) has full legal capacity, or (b) has become emancipated in all matters relating to his or her person, (c) has the right to determine his or her own residence, (d) has the capacity to enter into certain contractual relationships or (e) has the capacity to dispose of certain parts of his or her property. (ECOSOC, 1988c: para. 3) While all of these dimensions together indicate that the Finnish delegation attempted to define certain dimensions of maturity which pointed towards growing independence of the child (from the ‘home’, material independence, independence of choices), sub-paragraph (b) in particular embodies the idea of emancipation from the authority and guidance of others (the parents) in decisions directly affecting the child. The introduction of the term minor, however, met with criticism from Argentina, Ireland and Morocco, who expressed ‘hesitation about the Finnish proposal as it sought to introduce the concept of a “minor” into the text of the article’ (ECOSOC, 1989f: para. 83). Although, in the subsequent discussion, the Finnish delegation withdrew this extensive list of qualifications for emancipation and maturity, it nevertheless argued at the second reading (together with the Indian and the US delegates) that ‘as the concept of majority differed from context to context, and from one legislation to another, it should not be included in a final text of the article’ (ECOSOC, 1989f: para. 79). Despite these continued discussions as to an international agreement on the end of childhood, however, the original proposal by Poland was retained. The early preliminary fixation of the upper age limit of childhood at (usually) 18 years clearly opened up a discursive space in which to introduce the child as a growing and evolving human being, able to form and express his or her own wishes, views and interests independently. Throughout the drafting process in the Working Group, the idea that the child should be actively involved in certain decisions directly affecting him or her was expressed in the context of several articles’ drafting histories. Most importantly, in this regard, is the finding that in all cases where reference was made to the potential authority and responsibility of a child’s parents, several Western delegates61 counterargued by using the concept of the evolving capacities as a limitation clause which would gradually allow the child to make more autonomous and independent choices. These delegates repeatedly stressed that the

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child, first and foremost, had to be seen as an individual human being with individual human rights, whose growing independence had to be respected. The semantic field, hence, which characterized the discourse of the evolving child, was one of respect, equality, individuality and participation in the exercise of rights. The question of privacy and the ‘age of reason’ in the Working Group The discursive ecology of the evolving child was particularly strongly reflected in the Working Group’s debates over Article 16 which stipulated the protection of the child’s privacy. The suggestion of protecting the child’s right to privacy was first made by the United States in a proposal that read: ‘[T]he child enjoys legal protection from arbitrary or unlawful interference by government authorities with his family or home’ (ECOSOC, 1983a). In 1983, the proposal was deflected with some speakers arguing, ‘that the fulfilment of the child’s basic needs was a more urgent matter’ (ECOSOC, 1983d: para. 43). The idea of the child’s right to privacy, however, was seized again in a different context, as one among the various civil and political rights adopted from the ICCPR and conferred upon the child in 1986 with a quite different terminology: ‘... the right of the child to be protected by law against arbitrary or unlawful interference with his privacy, family, home or correspondence’. Now, it was the child’s individual private matters that took precedence over the privacy of the family and home. In the course of the discussions revolving around the application of the right to privacy to children, resistance to this concept was voiced, particularly with reference to the danger that it might seriously affect the relationship between the child and his or her parents.62 Several representatives expressed concern that ‘it might have repercussions on the right of parents to guide and educate their children and, consequently, have repercussions on the family, the basis of society’ (ECOSOC, 1988f: para. 58). Notwithstanding these opposing views, the Working Group finally reached a compromise in which the term right was deleted from the paragraph whereas all other elements, particularly the element of arbitrariness, were retained: ‘No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence [...]’. Protection in the name of the ‘best interests’ and the evolving capacities of the child Introducing the novel image of the ‘evolving child’ into the Working Group’s debates also created interdiscursive links between the protectionist discourse on the vulnerable child and the concept of evolving

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capacities in relation to Article 3 on the best interests of the child. It has on several occasions been argued that the ‘best interests’-clause is one of the most important cornerstones of the Convention on the Rights of the Child (Alston, 1994; Alston and Gilmour-Walsh, 1996; Breen, 2002). This is also underlined by its prominent position in the final text – all in all the best interests-principle is reiterated eight times in the Convention.63 It had already been raised in the 1959 Declaration and was also foreseen in the first as well as second Polish proposal.64 However, in the course of the Working Group discussions, it became clear that several participating delegations spoke in favour of connecting this ‘best interests’-clause to the concept of evolving capacities. In 1981, the Working Group discussed Article 3 of the second Polish proposal which, in its first paragraph, posited that ‘in all actions concerning children, whether undertaken by their parents, guardians, social or State institutions, and in particular by courts of law and administrative authorities, the best interests of the child shall be the paramount consideration’ (ECOSOC, 1979b). The ensuing paragraph required that States Parties should ensure the child such protection and care as his status requires, taking due account of the various stages of his development in family environment and in social relations [emphasis added, A.H.]. In the discussion that followed, the US delegate argued in favour of having this article apply to mostly ‘official actions’ (rather than including the parents) and suggested a second paragraph that formulated the child’s involvement in these administrative and judicial proceedings: ‘a child that has reached the age of reason [shall be provided with] an opportunity for the views of the child to be heard [...] and those views shall be taken into consideration by all competent authorities’ (ECOSOC, 1981b: para. 20). Although restricting the right to voice one’s views, to be heard and respected, to children of the ‘age of reason’, this proposal nevertheless combined the paternalistic spirit of the ‘best interests’-clause with the potential for the child to participate in the determination of his or her own interests. The Australian delegate also suggested a reformulation in which a stretching of the meaning of this paragraph is particularly visible: ‘... protection and care as is necessary for his well-being, taking into account the rights and responsibilities of his parents and the stage of the child’s development towards full responsibility [emphasis added, A.H.]’. Both formulations, ‘age of reason’ (the United States) and ‘towards full responsibility’ (Australia) give expression to a view of the evolving child as capable of making reasoned statements even before reaching full legal maturity.

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Various delegates responded to the United States and Australian proposals, voicing their difficulties with expressions such as ‘age of reason’. One delegate said, ‘he believed that views of children could be expressed in court through their legal guardians’ (ECOSOC, 1981b: para. 29). The delegate of the Netherlands also proposed to include both direct and indirect representation of the child’s views, while another participant asked how it would be possible to determine ‘the best interests of a child not capable of forming his own views’ (ECOSOC, 1981b: para. 29–30). All of these contributions demonstrate that the desire of delegates to elevate the child beyond his or her utter representation by others was coupled with the drafters’ inexperience of appropriate wording and legal conceptualization for this idea, especially as regards children who might not (yet) be able to speak reasonably for themselves. An NGO observer for the International Association of Penal Law finally suggested resolving the difficulties by resorting to the wording of Article 7 which had already adopted the phrase ‘capable of forming his own views’, a proposal to which the Working Group agreed. Ultimately, all the discussions invoked above exemplify the controversies around issues of age and maturity in the drafting exercise as well as the friction between a view of the child as an individual social agent, and the rights and responsibility for guidance and protection on the part of the parents and the State. Many contributions to the discussion of various articles of the CRC evidenced perspectives oscillating between utter determination of the child’s interests by parents, legal guardians and the State, and far-reaching independence of the child from this determination on the other. Suggestions such as the child ‘may receive social security directly, or indirectly through his or her parents or those caring for the child’,65 advanced by the Canadian delegation in 1983 epitomize the strong belief of several delegations, primarily Western liberal democracies, in the gradual emancipation of the child from his or her family context and from parental representation of his or her interests. An examination of interdiscursivity in the framework of the drafting of the CRC confirms that, indeed, ‘[t]he image of the suffering child is one of the most potent images of the 20th century. The child in distress is often used as a visual symbol of far larger issues: war, famine, pestilence, catastrophe, poverty, economic crisis’ (Black, 1996: 6). Images of the innocent and vulnerable child have been at the heart of international efforts on filling the slogan of ‘children’s rights’. The forcefulness of these conventionalized discourses on childhood has been explicitly visible in the speaking practices of the CHR and implicitly manifest in

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the broadening of the child protection agenda during the drafting and the relatively little dispute over this broadening (notwithstanding certain heated debates over the substance of some of the articles aimed at particularly vulnerable children). Yet, analysis has shown that gradually a purely protectionist agenda on behalf of children was suffused with a new terminology of reason, capacity, independence and individuality, particularly with regard to the introduction of the family sphere into the debates. Traditional paternalistic beliefs in the supremacy of the parents as legal guardians in the determination of a child’s best interests were disrupted by a discursive coalition of drafters who argued that, with age and during a process of intellectual maturation, the child should be in a position to be involved in matters directly affecting him or her. A gradual expansion of civil and political rights (‘freedom rights’) accompanied this growing belief in the capacity of the child to exert certain rights directly, individually and independently, the more he or she was moving into the legal and conceptual grey zone of adolescence. Bringing in discourses on the child’s evolving capacities originating in private family law of certain industrialized, liberal democracies of the West required delegates to reconsider and re-balance the responsibilities between the State and parents. It also placed the drafters in a dilemma of arguing from a standpoint of adults/parents/family members on the one hand and from the standpoint of policy-makers/government members on the other. Introducing an evolutionary understanding of childhood also backfired on the drafters, since it made it incumbent to delineate mature from immature, rational from irrational and, as such, reintroduced a strong paternalistic discursive repertoire on the irrational child. When drafters finally had to discuss the meaning of maturity and the extent to which they saw the child fit to decide on his or her own behalf without inflicting self-harm (abortion, contraception, religion), they had to venture into negotiations over the juxtaposition of parents’ rights vs children’s rights, parents’ authority vs children’s autonomy.

7.2 Intertextuality – existing legal standards as discursive resources in the drafting With regard to intertextuality – that is, the influence of previously formulated texts on the present linguistic practice under scrutiny (see Chapter 3) – it appears that during the meaning-negotiation both in the CHR as well as in the Working Group, participants recurrently borrowed from earlier international legal instruments in order to support their

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claims for a fortification of human rights for children. Intertextuality in the context of the drafting of the CRC meant bringing into play ‘phrases and clauses which were taken from other treaties and, therefore, already had a settled meaning’ (Price Cohen, 1990a: 34). The invocation of earlier texts and the norms they carried centred around the question, did international human rights instruments already apply to children or not. And, furthermore, should they apply, if children were as a consequence already sufficiently protected by existing human rights legislation. At the outset of the drafting in particular, many delegates spoke in favour of formulating a catalogue of special rights for children by referring to existing international human rights principles, since they considered children to be insufficiently covered or even completely ignored by existing general human rights treaties. Others contended that, since existing international standards for the protection of children were scattered among some eighty different legal instruments,66 they should be brought together in a single text. Still others spoke in favour of replicating existing human rights law and crafting it more appropriately for the protection of children so that their special status and their particular vulnerability would be stressed. The latter perspective became more and more dominant in the course of the drafting. All three different argumentations, however, converged on the perspective that children were fundamentally different from adults – a separate category of human beings – and, as such, required special provisions exceeding those of the International Covenants and the Universal Declaration of Human Rights. Analysis of the discursive practices in the CHR and the Working Group for the drafting shows that in the CHR speakers most often referred to specialized legal instruments for children, most notably the 1959 Declaration of the Rights of the Child (but even the 1924 Declaration) and also the Hague Convention of 1980 on Civil aspects of international child abduction.67 The discussion in the Working Group, however, mainly revolved around general human rights treaties, most notably the two International Covenants, or specialized human rights treaties for other groups such as CEDAW. In the Working Group, frequent reference to the two Covenants as universal human rights’ instruments formulating a broad catalogue of rights for the individual human being, opened up further possibilities of conferring a substantial number of basic human rights, particularly civil and political rights, onto children and of departing from the child-saving vocabulary of the 1959 Declaration. Of particular interest in this regard is the exchange of arguments leading to one of the most groundbreaking articles of the

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CRC – Article 13 on freedom of expression. Here, participants used previous international texts as discursive resources and connected them to novel arguments which weakened a paternalistic perspective in which parents were the principal agents in determining what lies in the best interests of their child. They supported the idea of the child as a bearer of individual rights and the concept of the ‘evolving capacities of the child’. The ICCPR – expanding the child’s civil and political rights Among the most remarkable details that come to light when looking at the drafting process of the CRC is the fact that Article 7 of the Polish proposal – later Article 12 of the Convention and the cornerstone of the participatory dimension of the CRC – was one of the first articles to be adopted, in 1981.68 The early agreement of the drafters with the principle that children’s views should be respected and that this was subject to the ‘age and maturity of the child’69 was a threshold event that broadened the discursive space within which the applicability of additional fundamental civil and political rights could be discussed. Since ideas of the evolving capacities and the child’s right to express his or her views had been introduced by means of the second Polish proposal, Western delegates were able to use Article 7, in their quest for expanding the catalogue of civil and political rights and the Polish origin of this idea made it difficult for delegates from the East to oppose this liberal view of children’s rights. Draft Article 7 inserted an evolutionary concept of childhood into the debate of children’s rights that could not be found in any other human rights document – thus, as the discussions related to Article 7 (later Article 12) demonstrate, intertextual connection of this idea to earlier international texts devoted solely to children was difficult for the drafters. However, once the concept had been accepted and the line between childhood and adulthood significantly blurred, it allowed for links to be established to civil and political rights contained in the ICCPR. The result was a substantial broadening of civil and political rights in discussions of Article 7 bis (later Article 13 – Article 16). Conferring the right to freedom of expression to the child was first advanced by the US delegate in 1985, whose proposal provided for the child’s enjoyment of civil and political rights and freedoms ‘in public life to the fullest extent commensurate with his age’ (ECOSOC, 1985a: annex II). The draft article contained all fundamental civil and political rights, such as the right to privacy, freedom of association, expression and peaceful assembly. However, the proposal was not taken up in the 1985 discussion,

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which led the US delegation to refine its wording in 1987 and gradually curb the extensive catalogue of liberal rights by attaching a significant ‘caveat’: ‘This article shall not be interpreted as affecting the lawful rights and duties of parents and legal guardians, which should be exercised in a manner consistent with the evolving capacities of the child’ (ECOSOC, 1987c: para. 111). When explaining his proposal, the US representative said that the text attempted to express the idea that the child as defined in the draft declaration ‘included adolescents who had often acquired the skills needed to participate fully and effectively in society’ (ECOSOC, 1987c: para. 112). He justified the extensive list of civil and political rights that should be granted to these adolescents by explaining that the rights listed in the draft article were universally accepted both in the Universal Declaration and the ICCPR. In the ensuing discussion, several delegates referred to existing human rights instruments, with the UK delegate arguing that, since these articles were covered in other texts, they should not be restated in the Convention (ECOSOC, 1987c: para. 114). It is evident that the first substantial debate on Article 7 bis in 1987 was marked by a strong spirit of compromise engendered by the détente between East and West. The peaceful political climate between Eastern communist and Western liberal states in the CHR certainly spurred on the eagerness with which delegates embraced the idea of assigning civil and political rights to the child. For example, notwithstanding the already extensive list of civil and political child’s rights proposed by the US delegate, the USSR representative argued that ‘the draft Convention should deal with new issues and not reproduce provisions already existing in international instruments’ – he then went on to suggest a separation of civil from political rights, ‘in an approach that would not be selective, yet fully consistent with the provisions of the International Covenant on Civil and Political Rights’ (ECOSOC, 1987c: para. 116). Inspired by these frequent references to the ICCPR, the discussion revealed that delegates were keen on discussing the concept of evolving capacities in connection with the possibility of transferring general and universal civil and political rights to children. The Australian delegate remarked that the US proposal made ‘no provision whatsoever for the evolving sense of responsibility of children’ (ECOSOC, 1987c: para. 114) and the Norwegian delegate, seizing this interjection, even argued that ‘there was a need for a general provision dealing with the evolving capacities of the child’ (ECOSOC, 1987c: para. 115) – his suggestion was supported by the Swedish delegate (ECOSOC, 1987c: para. 117). The debate over expanding civil and political rights of children well beyond

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the original wording of draft Article 7, however, was not unanimous, with the Chinese representative voicing the opinion that ‘the freedoms of association, peaceful assembly and privacy could not be enjoyed by children in the same way as they are enjoyed by adults because the intellect of a child was not as developed as that of an adult, and therefore a child could only engage in activities commensurate with its intellect’ (ECOSOC, 1987c: para. 117). When the debate on the item was reopened in 1988, the discursive coalition of Western states, most notably the Scandinavian countries, Canada and the United States, arguing in favour of an emancipatory stance towards the child, was also fortified by an NGO proposal calling for the child’s rights ‘to express an opinion freely’ and to ‘seek, receive and impart information and ideas, in writing, in art form or in any other media of the child’s choice’ – a formulation adopted literally from Article 19(2) of the ICCPR (ECOSOC, 1988a). The drafters of the Convention finally agreed to break down Article 7 into several articles which would all deal with one particular civil/political right: Article 13 on freedom of expression; Article 14 on freedom of thought, conscience and religion; Article 15 on freedom of association and peaceful assembly; Article 16 on the protection of privacy and Article 17 on access to appropriate information. Assigning a special article to each of these rights emphasized the importance attached to this class of rights and the novelty of tailoring these rights to the exceptional situation of children. The paternalistic ‘caveat’ introduced by the United States in 1987 which attempted to introduce the ‘rights and duties of parents [...] to provide direction to the child’ in the exercise of these rights was given up with the drafters agreeing that it had already been dealt with in Article 5 on parental responsibilities. The triangular relationship between child, family and State and the concept of ‘evolving capacities’ in Article 5 In contrast to the liberal character of Articles 13 to 17, the discussion of Article 5 of the CRC covering parental guidance exhibited a field of tension between intertextual references to the family as the basic unit of society in the ICESCR and the concept of the evolving capacities of the child – which was, for the first time, explicitly mentioned in this article. Article 5 of the Convention on the Rights of the Child provides that States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other

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persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child [emphasis added, A.H.], appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. In the discussion about the place of parental responsibilities in the draft Convention, intertextual links were made that sustained conventional rather than innovative perspectives on the relationship between child and parents, with drafters trying to marry the supremacy of parents’ authority with children’s growing independence. Even though the basic working text had included the idea that the child should be able to express his or her opinion, the concept of evolving capacities was not explicitly referred to in the second Polish proposal – it was introduced in the course of the discussion that led to Article 5. In 1981, the Danish government suggested to define ‘the parents and other guardians’ as those bearing the main responsibility for the child (ECOSOC, 1981a). States Parties, however, should be assigned the responsibility to satisfy the needs of the child and to ensure his or her rights as enshrined in the future Convention. Australia and the United States elaborated on this proposal at a much later stage of the drafting, in 1987, connecting their understanding of the triangular relationship between the State, parents and the child to existing legislation with regard to the family in both International Covenants (ECOSOC, 1987a). The US representative referred to the two Covenants in order to support his country’s belief ‘that the family should be explicitly protected, with language similar to that contained in the two Covenants’ (ECOSOC, 1987c: para. 101). In response to this statement, the delegations of Canada and the Netherlands stated that they would support such a provision, however, only with reference to the ‘evolving capacities of the child’. The Canadian delegate also alluded to Article 23 of the ICCPR which protected the family ‘as the natural and fundamental unit of society’, whilst taking the argument in a different direction. He argued that, since this article was intended to protect the family from the State, ‘incorporation of such a provision in a convention on the rights of the child must also ensure that the rights of the child would not be left solely to the wishes of the family, without any protection whatsoever from the state’ (ECOSOC, 1987c: para. 106). From this argumentation it is clear that the idea of the evolving capacities of the child was intended as an emancipatory element that would allow the child to gradually loosen his or her family ties and dependence on parental determination

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of what lies in his or her best interests – thus a departure from paternalist guardianship over his or her rights to an active and direct exercise of these rights by him or herself. Connecting the idea of evolving capacity to make reasonable decisions and express interests with the idea of the family as the most fundamental group forming society also implied a gradual dissociation of the child as an individual human being from its protective surroundings, the family (as a group) and, thus, further contributed to the emphasis placed on the individual child that suffused the whole Convention so pervasively. The discussion was taken up again at the 1988 session of the Working Group, this time with an enlarged group of Western states (Australia, Austria, the Netherlands, and the United States) sponsoring a new version of the suggested article on parental guidance. Reference to the accentuation of the family in the Covenants was eliminated; the concept of evolving capacities was inserted (ECOSOC, 1988e). In introducing this new proposal, the Australian delegate explicitly stated that the article incorporated ‘two important general concepts: (a) the evolving capacities of the child, and his or her rights as enumerated in the draft convention, and (b) the rights and duties of the parents who raised the child, who provided guidance to and took primary responsibility for the child’ (ECOSOC, 1988f). The following discussion revealed that there were, indeed, several representatives (such as the Federal Republic of Germany) who saw the clause of ‘evolving capacities’ as unnecessarily infringing upon parents’ rights to decide upon the ‘measures as are required for the upbringing and well-being of the child’ (ECOSOC, 1988f: para. 29). Most of the contributions to the debate, however, reflected the belief that the draft article as proposed in 1988 represented a good balance between parents’ and children’s rights and that ‘if the emphasis was placed on the evolving capacities of the child in accordance with his age, the parents also had a role to play’ (ECOSOC, 1988f: para. 30). The two Covenants as primary reference points for existing international norms, thus, were used both in arguments for strengthening the individuality and independence of the child – who should also be protected from his or her own parents or legal guardians (in cases of child neglect and abuse) – as well as for arguments speaking in favour of protecting the family as whole, thus attempting to safeguard family privacy and the superiority of parents’ rights to guide their child. Using central formulations of the Covenants as discursive resources, thus, does not allow the easy conclusion that drafting of the CRC was largely a matter of conferring the individual human rights catalogue as enshrined in the two Covenants onto the child. Rather, the attempt to

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confer some of the most fundamental tenets of both Covenants – the importance of family entity (ICESCR) as well as the notion of individual human rights (ICCPR) – onto the convention produced an area of conflict. The particular examples given here illustrate the ‘tightrope walk’ between States Parties’ obligations to protect the child and to safeguard his or her rights and obligations to protect family integrity and rights of adults. Article 16, in which the child’s right for respect for his or her privacy was laid down, provoked the same frictions and bargaining processes over parents’ authority and rights and children’s independence. Here again, specific formulations of the ICCPR incited debates as to the extent to which these civil and political rights could be transferred to children without modification as regards the integrity of the family sphere.70 Intertextual connections between the draft Convention and the two Covenants fortified these frictions in that the formulations adopted from the ICCPR emphasized the individual child’s rights and interests even against his or her parents, while the ICESCR was used as a discursive resource to support an emphasis on parents’ primary responsibilities in the upbringing and the guidance of the child. Ultimately, the introduction of a triangular relationship in which duties towards the child are shared between the State and parents illustrates that drafters’ use of intertextual argumentation in meaning-negotiation led to serious contestations over the identity of the child in international politics.

7.3

Fact construction – beyond controversy

When examining how agents attempt to ‘produce’ or, at least, invoke common sense and a congruence of opinions, it is essential to investigate how they construct the items, opinions or perspectives they are talking about as facts rather than as single, contestable opinions, as universal truths rather than individual beliefs. In fact, most discursive practices in an institutional environment such as the CHR and its Working Group display a strong tendency of speakers to present issues in a factual, seemingly objective and disinterested way rather than as a personal opinion revealing self-interest and individual beliefs. With an analytical focus on the presentation of ‘facts’, it is vital to distinguish between various forms of presenting an issue or opinion as a ‘fact’: (a) those connecting the individual argument to a knowledge resource (such as numbers, statistics, an influential scientific theory, an external authority) or (b) those presenting the argument as being beyond contestation.

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With regard to the concept of the evolving capacities of the child and the new discourse of children’s rights it allowed to be established, it is therefore essential to consider how the drafters of the CRC constructed their arguments in favour of broadening the child’s rights agenda and brought about claims that presented the principle of evolving capacities of the child as a fact which could not be argued against. In the case of the drafting of the CRC, it is striking that knowledge resources or external references were rarely invoked as supporting arguments concerning the evolving capacities of the child. Instead, most arguments introducing a new perspective on the child and its rights were accompanied by generalizing statements attempting to make this specific version of reality difficult to challenge. For instance, in the debate on the definition of the Child, a Working Paper introduced by two NGOs suggested adopting a ‘different approach to the rights and duties of the child [...] in view of increasingly early development of children and the present tendency to include young people in discussions relating to family decisions or outside problems’ (ECOSOC, 1983f). In general, it appears that in the CHR knowledge resources (data, numbers, opinions of external authorities such as UNICEF) were mainly brought into play in order to justify the need for greater protection of children, whereas in the Working Group various ways of fact construction supported those cases in which novel elements were introduced into the debate and where no existing international legislation was at hand with which to support claims, such as those concerning the end of childhood. Fact construction and the vulnerability of the child Most instances of fact construction within the CHR can be attributed to arguments supporting the vulnerability and weakness of the child resulting from lack of adequate protection from the ‘evil’ adult world. The misery of children, particularly those in developing regions of the world, was continuously depicted in its magnitude and pervasiveness in the CHR members’ comments. During the ten years in which the Convention was formulated, many speakers in the Commission invoked data and statistics to support their individual arguments in favour of greater child protection in international politics. In cases where facts were constructed using numbers or external references (most importantly, UNICEF as the leading UN agency in child matters), these emphasized the urgency for greater protection within the international community. Many CHR members referred in their contributions to numbers of children starving, lacking ‘the minimum necessities of life’,71 being affected by war and suffering from the ‘consequences of natural

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disasters’.72 Mr Kalinowski, Polish delegate, stated in front of the CHR in 1981 that ‘[i]t was essential to improve the lot of children throughout the world, for 600 million lived in or on the verge of starvation and 50 million were subjected to slavery’ (ECOSOC, 1981c: para. 51). UNICEF’s reports on The State of the World’s Children which had been regularly published since 1980 and its annual reports were repeatedly used as a reference point. Speakers were also referring to other participants’ arguments and, as such, also externalizing their individual versions of reality, such as, for instance, Ms Sheikh Fadli of the Syrian Arab Republic, who seized the comment of the representative of the International Indian Treaty Council stating ‘that one Indian child out of three died before it was six months old because of malnutrition and the wretched living conditions of the American Indian nation’ (ECOSOC, 1978b: para. 66). Members of the CHR attempting to establish unquestionable facts without invoking any external reference mostly aimed at demonstrating the particular defencelessness, vulnerability and innocence of children. Mr Rios, delegate of Panama, observed, for instance, that ‘children [...] constituted a large and totally defenceless sector of the world population, open to every kind of abuse, even from their own parents’ (ECOSOC, 1978b: para. 3). Mr Lomeiko, delegate of USSR, stated in 1987: ‘It was essential to achieve results, particularly in view of the fact that, even in developed countries, many rights of children were still being violated and a large number of the scourges threatening children, such as slavery, sale, abduction and exploitation for various purposes had still not been eliminated’ (ECOSOC, 1987d: para. 22). Mr Bezabih (Ethiopia) said in 1988 that ‘[s]exual exploitation, prostitution and the sale and abduction of children were in some countries an undeniable reality which made the adoption of measures designed to ensure the protection of minors all the more necessary’ (ECOSOC, 1988g: para. 30). All of these discursive practices presented the defencelessness of the child as an uncontested ‘truth’, which made it incumbent upon governments and societies to strengthen the protection of these subjects in international politics. Aside from the strong influence of the image of the innocent child, which was reinforced by invoking facts in the form of numbers, a couple of Western Member States of the CHR, in effect, made reference to the image of the evolving child, trying to establish this view of growing independence and individual responsibility as undisputed principle. Ms Martin, observer for Canada, for example, in 1985 points to ‘the fact that a child’s ability to exercise his or her rights naturally [emphasis added, A.H.] increased as the child matured’ (ECOSOC, 1985c: para. 135). She

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not only referred to the child’s identity as an active rights-holder as an undisputed principle, but beyond that described the process of maturation as ‘natural’, thereby positing it as literally a natural law rather than, for example, a cultural belief. Mr Colliard, French member of the CHR stated in 1987 that ‘[t]he aim of the draft convention was to promote consideration of the interests of the child and to give that fundamental principle an international dimension’ (ECOSOC, 1987d: para. 5). His formulation implicitly emphasized the interests of the child rather than his or her protection and established these interests as the overall aim of the draft convention. Other participants, especially those upholding more paternalistic standpoints, counter-argued this Western support for seeing the interests of children as a paramount concern and their right to participation and emancipation as fundamental part of human rights for children. Mr Konate, Senegalese representative, for instance, contended that ‘it was generally admitted, in all systems of education, that children did not engage in politics’ and that ‘therefore the rights granted to them should be less politicized’ (ECOSOC, 1985c: para. 188). Common-sense beliefs and ‘we’-constructions in the Commission’s discussions Fact construction through ‘we’-constructions and the invocation of seemingly commonsensical beliefs was much stronger in the CHR than in the Working Group, since it was here that broader values underlying international efforts on behalf of children were brought into play. Corresponding to the very general character of the discussions in the CHR, one can single out various instances of externalization of reality qua ‘we’-constructions here. Developing countries’ argumentations commonly posited that their standpoint was shared by the ‘Third World’ as a whole: The crucial question for the peoples of the third world was what were the rights of the child for developing countries? First of all, what was the significance of the rights to leisure for a starving and sick child?73 ‘We’-constructions were particularly strong with regard to the moral obligations to protect children in the name of civilization, progress and development. Arguments that ‘child protection was a moral requirement of any civilized society’74 were widespread and aimed at locating the present debate within the larger moral imperatives of the UN

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mission. Overall, however, most statements made in the CHR were of a very general nature, commonly not relating to specific provisions of the draft CRC. The CHR was not a forum in which to discuss how to translate individual or collective beliefs and truth-assumptions into precise legal formulations, but rather reflected the political ramifications of particularly contentious issues that had emerged during the drafting, such as, for instance, the debates on the beginning of childhood and the rights of the unborn child or the implications of the child’s right to freedom of religion. Fact construction, maturity and ability to reason Within the Working Group that was assigned to the drafting of the Convention, fact construction took place mostly in cases where (a) new provisions were introduced that had not been covered by the second Polish proposal, (b) where definitional issues were at stake and (c) where delegates referred to questions of age and maturity and attempted to underline an evolutionary concept of childhood. The latter category is, evidently, of primary importance to this case study. With regard to the concept of evolving capacities and its frequent invocation in the drafting exercise, it appears that it were mostly the Western delegates who presented their perspective on the maturation of the child and the view that children of a certain age could be involved in decision-making in the form of undisputed principles. A strong coalition of Western states (Australia, Austria, the Netherlands and the United States), for example, put forward a proposal on a new Article 5 dealing with the ‘evolving capacities’ of the child in 1988. The group concluded that this proposal covered two ‘important general [emphasis added, A.H.] concepts,’ the evolving capacities of the child and the rights and responsibilities of those who raised the child (ECOSOC, 1988e). Referring to the evolving capacities as a ‘general concept’ implied a tacit understanding that it was an idea universally accepted. In contrast to these attempts to present the concept of childhood as, naturally, an evolutionary one, there were many other argumentations that tried to present childhood as fundamentally a culturally contested concept and, as such, too difficult to define globally. In fact, many speakers referred to culture as soon as they were unsure about the possible content of such a notion. Notwithstanding these practices of naturalization of the discourse on evolving capacities and maturity brought to the fore by states from the Western group, arguments using fact construction were also put forward by actors other than Western government delegates such as,

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for instance, in a comment by UNICEF in 1988, in which the organization referred to the expression ‘a child capable of forming his own views’ in its technical review of Article 3 (on the best interests of the child). UNICEF contended that the verb ‘forming’ in this draft article was ill chosen ‘since even very young children who are not able to talk, can still “form” views and communicate them in one way or another’ (ECOSOC, 1989j: 13–14). Following this strategy of presenting the fact that the large part of children under the Convention’s definition were able to hold personal views and to make them heard in a variety of ways, UNICEF suggested the word ‘expressing’ instead of ‘forming’. This comment on terminology thereby implicitly suggested that the child’s right to have his or her view taken into account in decisions that affect him or her would only hold for those children who could make their views intelligible to adults. The term ‘expressing’ in this statement, in its differentiation from ‘forming’, basically meant that the child should be able to voice his or her interests in reasonable and coherent language, before these views would be taken into account. Thus, one can conclude that UNICEF on the one hand promoted an image of the child as fundamentally capable of developing his or her own interests and views from an early age onwards but that, on the other hand and for the purpose of the Convention, it sought to introduce a stronger threshold for signs of maturity and reason and, ultimately, for the recognition of children as social agents with the right to have a say in matters which directly affect them. The drafting process in the Working Group demonstrates that, in the same way that Western states attempted to elevate an evolutionary concept of childhood beyond contestation, others contested this perspective, trying, conversely, to present the child as naturally immature and incapable to act reasonably and independently. Most of those contesting the notion of evolving capacities did so by arguing to the contrary, such as the Chinese delegate, who said in 1987 ‘that freedoms of association, peaceful assembly and privacy could not be enjoyed by children in the same way as they are enjoyed by adults because the intellect of a child was not as developed as that of an adult, and therefore a child could only engage in activities commensurate with his intellect [emphasis added, A.H.]’ (ECOSOC, 1987c: para. 117). Particularly with regard to the possibility that the child could freely choose his religion or belief, it was contended that ‘in many countries [...] a child follows the religion of his parents and does not generally make a choice of his own’ (ECOSOC, 1983d: para. 55). Taken together, the manifestations of interdiscursivity, intertextuality and fact construction in the debates revolving around the Convention

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on the Rights of the Child suggest that both the conventionalized discourses of the innocent as well as the immanent child had considerable influence on the drafting process. The influence of these conventionalized discourses was particularly evident in the CHR with a strong adherence to the 1959 Declaration on the Rights of the Child and many instances of emotive and ethical argumentation. In contrast to this, within the Working Group, the 1959 Declaration and its purely protective and objectifying construction of the child were gradually abandoned as a discursive resource in the drafting process. Likewise, it appears that almost none of the child-specific regulations that were scattered among other international legal instruments (see Chapter 5) were used as discursive resources by the drafters in the Working Group. Regional instruments such as the African Declaration on the Rights and Welfare of the Child of 1979 were not brought up, even though they could have supported specific understandings of childhood in nonWestern cultural spheres. Within the Working Group, the strong intertextual reference to the two Covenants and the leeway that the second Polish proposal had created with regard to an emancipatory perspective on the child allowed particular groups of participants to introduce two entirely new dimensions into this international debate on childhood: the private family sphere and the concept of the ‘evolving capacities’ of the child. An image of the child as an ‘evolving’ and active social agent was greatly reinforced (a) through the broadening of the age span, that is, through fixing the upper limit at 18 years, (b) through Article 7 of the second Polish proposal that was repeatedly referred to as the basis for the novel concept of a child’s rights. Consequently, various drafters exploited these loopholes by bringing into the debate influential discourses from family law and by connecting the overall and traditional idea of child protection with the idea that the child also had to be protected in the private realm. This meant that he or she had to be emancipated from total paternal authority during adolescence. Intertextual links with the ICCPR fortified the emergence of the child as an individual rights-holder, dissociated from the family context. Yet, the difficulties in expressing an understanding of intellectual maturation and gradual self-determination became manifest in many participants’ argumentations.

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8 The Exclusionary Facets of the Social Environment and Their Effects on the New Image of Childhood

A critical analysis of discourse attempts to uncover struggles over meaning and to look for processes of power and exclusion that, ultimately, succeed in presenting a particular matter as uncontroversial. In order to achieve temporary consensus on the content of specific concepts (as thick signifiers rather than empty signs), discursive interaction in international negotiations and policy-making processes is bound to share a basis of collectively congruent interpretations of reality. This consensus, as has been argued before, always rests upon moments of exclusion, be it exclusion on a semantic level (prior meanings) or exclusion on a contextual level (institutional framework). Dominant concepts, such as the international notion of the ‘child’, ‘childhood’ and ‘child’s rights’, are thus made possible by means of a permanent exclusion or ‘displacement’ of those elements that seriously threaten a temporary fixation of meaning. It has been claimed on several occasions that the CRC and its coming-into-being represent a showcase for ‘a model of inclusive norm creation’ (Harris-Short, 2001: 350; Johnson, 1992). Yet, while HarrisShort argues that the CRC reflects concerns of non-Western cultures to a greater degree than other human rights treaties (such as CEDAW or the ICCPR), she nevertheless admits that the process of norm-creation was still marked by exclusionary dimensions. Ultimately, the argument is supported that all instances of meaning-making and policy-making, no matter how inclusive, still exhibit moments of exclusion. As such, the drafting history of the CRC can be considered as part of a whole class of events, since it is one among many examples underlining 196

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general observations of the marginalization of cultural values from non-Western societies in the UN human rights regime (Harris-Short, 2001: 307).

8.1 Non-participants – the silencing of voices Chapters 6 and 7 have already discussed features of the institutional framework in which communicative exchange about the ‘global child’ took place in order to describe the parameters for the negotiations, as background information on the drafting process. These rules for participation and interaction will now be taken as a second dimension of the power of discourse, with the aim of showing how participation patterns and conversational rules have strongly constrained certain actors and limited their power in discourse while they allowed others to expand their discursive influence. The institutional design for communicative interaction – particularly the open-endedness of the Working Group – had strong ramifications on the drafting and final shape of the text, mostly with regard to the regional origin of drafters. Some of the most critical ideas introduced during the drafting (child as a partly independent individual, nuclear family, participatory rights, introduction of the private sphere) suggest that the prevalence of discursive coalitions from Western and Eastern European countries was among the main driving forces of an expansion of this novel child perspective, fostered by the weakness of contesting voices from Muslim, Asian and African regions (see for instance: Barsh, 1989). Many delegates from developing regions of the world, most importantly Africa, and those from Muslim countries appeared on the stage only towards the very end of the drafting process, when the most substantial provisions of the CRC had already been drafted – their opposition to basic ideas contained in the text received only scant attention. Many among them had not been in a position to get involved in meaning-making due to the lack of personal and financial means to travel to Geneva. As such, they were barred from the possibility of interfering with prior consensus. Commentators on UN treaty-making processes seem to agree that participation in standardsetting activities is much more costly for developing countries than for industrialized ones (Johnson, 1992: 97). When delegates arrived for the second reading – in line with regular CHR proceedings – they could only suggest different wording, but no new articles could be introduced. Consequently, they fought very hard for their right to introduce entirely new ideas during the second reading and, as such, obstructed efficient and pragmatic termination of the drafting process.

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Yet, an analysis of the drafting process also shows that some representatives of developing countries (such as the Senegalese delegate) took a very active role in the drafting. From the drafting records it is obvious that throughout the whole drafting exercise, the Senegalese delegate was the only actively participating delegate who represented all of Africa south of the Sahara (with South Africa not being allowed to participate).1 Participation lists show that substantial numbers of delegates from developing countries were present at various meetings of the Working Group but they did not, for the most part, actively engage in the meaning-making. Only rarely did they follow their Western and Eastern colleagues’ example and align to form discourse coalitions or support others in their argumentations. What is more, some wealthier regions of the non-Western world (Asia, Middle East, Latin America) also showed low levels of participation in the drafting process. This leads LeBlanc to conclude that, in some cases, ‘other factors, including indifference and [...] opposition to norm creation in the field of children’s rights, affected the participation levels of many Third World countries’ (LeBlanc, 1995: 34). Participatory and conversational rights of state actors In principle, all Member States of the UN had the right and opportunity to participate in the Working Group. Yet, it appears that although the Working Group was established by the CHR and, as such, was open to all members of this Commission, it did not reflect the geographical balance of the Commission. The drafting of the CRC was characterized by extensive participation of delegates from Western and Eastern Europe and low-level participation by delegates from Africa, Asia, Latin America and Muslim countries. Only towards the end did the prevalence of Western industrialized nations (including the United States) give way to a dominant group of African, Asian and Latin American states. However, even though these delegates were physically present, their substantial input was limited in the light of rising time-pressure – especially after 1987, when the GA and the CHR mounted their pressure on the drafters to consider 1989 (the 10th anniversary of the IYC and the 30th anniversary of the 1959 Declaration on the Rights of the Child) as target date for the final text of the Convention (ECOSOC, 1988b; UNGA, 1987). Within the Working Group, many state and nonstate actors also urged for ‘target 1989’ as the year of adoption of the Convention. Thus, as An-Na’im observes, though physically present, late-comers, especially those who were not trained in juridical language or not acquainted with Western-style family law, were not able to

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connect to the already established common sense within the Working Group (An-Na’im, 1994: 65). With regard to the issue of active participation, Price Cohen, NGO observer to the drafting, reports that under-financed delegations with only a single Geneva-based representative often had to cover all UN meetings. Therefore, ‘on many occasions such a delegate would ask for the floor, state the government’s position and then apologize for having to leave for another meeting’ (Price Cohen, 1997: 397). Basically, this meant that delegates from developing countries were often not able to participate in the actual discursive practices of meaning-negotiation. They only had the possibility to accept or reject the articles and formulations drafted by the Working Group. Several authors (Johnson, 1992; LeBlanc, 1995; Price Cohen, 1990c; Price Cohen, 1996) have used regional groupings to investigate the level of participation, revealing that both interest and input in the drafting was strongest on the part of Western European countries.2 Eastern European countries were the second largest group to participate steadily, even though they belonged to the smallest region. Some delegations such as those from the United States, the USSR and the United Kingdom participated in all sessions of the Working Group. Other important contributors to the drafting, such as Canada, Poland and the Netherlands were members only for some of the time – however, the change in status did not result in a decrease in activity on behalf of these representatives. The fact that Western states were most eager to engage in meaning-making is also reflected by the circumstance that some states, such as Sweden, who were never a member of the Commission were among the most active in the drafting. LeBlanc provides an interesting quantitative analysis of state representation and both frequency and quality of input into the drafting, coming to the conclusion that ‘[...] delegations that participated most frequently were also the ones that made the most significant substantive contributions in other words, a high level of participation in quantitative terms generally translated into high-quality participation as well’ (LeBlanc, 1995: 28). LeBlanc qualified state participation according to their participation in 9 of 9, 8 of 9, 7 of 9 and so on of the drafting sessions. His most striking finding is the virtual absence of states from the Middle East. African states were also disproportionately weakly represented (51 states, but only 3 participating in 5 of the 9 drafting rounds). In addition to that, none of the Caribbean states was represented at any session of the Working Group – this world region being steadily represented by Canada and the United States (LeBlanc, 1995: 30–37). LeBlanc concludes that European states – Western and Eastern – were the principal drafters

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of the Convention. This finding confirms the results of other studies on UN human rights conventions which underline the dominance of Western states, such as Burgers and Danelius’ study on the Convention against Torture (Burgers and Danelius, 1988). Continuity in representation versus ‘revolving doors’ Closely related to the issue of participation in the drafting was the question of continuity (and discontinuity) of representation. While, for instance, the United States sent five different delegates between 1983 and 1988, other countries did not adhere to this ‘revolving door’ practice but retained the same representative for considerable lengths of time, among them the Netherlands, Austria, Norway, Finland and the United Kingdom. Some of the participants welcomed the continuity in participation as inducing a better working environment,3 others, such as the Chairman, saw positive effects in the changing of delegates, particularly on the part of the United States: ‘These changes tended to have a positive impact on the development of work on the draft’ (Lopatka, 2007: xl).4 Most of those who have shared their personal experience of the drafting process confirmed a growing family atmosphere among the drafters over the years – some saw the informal ‘pea soup gatherings’ organized by Simone Ek of Rädda Barnen as a vital element in this development (Cantwell, 1992b). Most delegations sent more than one delegate when the second reading was taking place – the additional person either came from the Ministry of Justice or was, at least, a legal expert. Although many delegates came with rigid instructions from their governments, sometimes decisions about the modification of single articles had to be taken at such speed that ‘[a]t times like these, a delegate’s previous instructions became irrelevant and they were left to sort things out completely on their own’ (Price Cohen, 1997: 397).5 A particularly telling example was an incident concerning the Italian delegate at the second reading, when one of the most contentious articles of the Convention – Article 38 on children in armed conflict – was discussed. Shortly after the much-disputed paragraph 2 of the article had been adopted, the Italian delegate entered the room and announced that she had been outside to receive her government’s instructions. She stated further that ‘had she been present in the room she would have strongly opposed the text that was finally being adopted’ (ECOSOC, 1989f: para. 616). With regard to the link between participation of governments and their conversational rights, it can be concluded that those who appeared late in the game had few chances to advocate for change. Any chances of intervening in meaning-making were increased only if discourse

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coalitions could be formed, as was the case with Muslim countries with regard to the provision on freedom of religion. The strongest discourse coalition – the Western Group (Canada, Australia, Sweden, Norway, Austria, Finland, the United Kingdom and the United States) – further strengthened its potential by organizing coordination meetings an hour before the Working Group session to consider their arguments. No similar arrangements existed for other regional groupings, apart from the Muslim front that formed for the second reading. On closer inspection, the influence of proceduralized discourse on the participation of speaking subjects evidences that the possibility of an inclusive process cannot be equated with adequate representation of particular cultural understandings. This observation also applies to the emergence of the new identity of the child in international politics. The second reading, the conversational rights of the Chairman and the marginalization of non-Western perspectives Analysis of the drafting process shows that the conversational rights of those actors representing regional groups other than Western and European countries were also curtailed by the ruling of the Chairman, whose influence on speaking procedures and allocation of speaking time was extensive. Particularly during the second reading which required a strict time frame in order to reach the required consensus on the whole document, the Chairman repeatedly intervened when discussions went off track in relation to what needed to be achieved. During the debate on the best interests of the child and the non-discrimination clause, he told the drafters that it was not possible ‘to redraft the entire convention’ and exclaimed: ‘We are here to fill the gaps, rearrange and renumber and that’s all!’ (Johnson, 1988: 10). He also advised delegates that the purpose of the second reading was to ‘discuss substance not play’ (Johnson, 1988: 16). When, after these warnings, delegates still tried to open up substantial discussions on certain articles – for example, when some delegates were arguing about the necessity of having the child’s consent with regards to medical experimentation – the Chairman, after a while, simply stated that ‘he could see no consensus and ruled that the paragraph be deleted from the article’ (Johnson, 1988: 28). Some states strongly objected when the Chairman put an end to discussions in this way, while others agreed with the Chairman that a second reading required a strict schedule. On several other occasions during the second reading, the Chairman’s influence on allocating conversational resources and over-ruling marginalized delegates’ individual objections was even more evident. At

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the beginning of the first meeting of the second reading, the Senegalese delegate declared that ‘we do not have the right to ignore the aspirations of the so-called “new” nations’ (Johnson, 1988: 4). He said that since two-thirds of the children of the world live in Third World countries, ‘the cultural needs of these countries must be taken account of’. Finally, he complained ‘some NGOs (unnamed) spend a lot of energy opposing Third World perspectives’ (Johnson, 1988: 4). This statement did not provoke much discussion at the first meeting. However, at the fourth meeting, the Senegalese delegate proposed to expand the provision in the preamble that the ‘child should be prepared to live an individual life’ by altering the formulation to ‘to live in an individual and community life’ (Johnson, 1988: 7). This time, the Chairman simply ruled that this came ‘too late for consideration’ (Johnson, 1988: 7). While the delegate of Senegal, as representative of basically the whole continent of sub-Saharan Africa, emerged as a quite active participant during the second reading, the possibility for him to have any significant influence on the final text was limited. On one occasion when Senegalese opposition to the main thrust of the Convention became too fierce, arguing that the Convention was not responsive enough to developing countries’ perspectives, the Chairman took advantage of his interaction rights and rather bluntly cut off the Senegalese objections by stating that participants from a wide range of developing and developed countries had taken part in the work of the group and that, through their declarations and suggestions, they ... made significant and positive contributions to the draft convention ... which reflected universal concern. (ECOSOC, 1988f: 251; see also: Harris-Short, 2001) In view of the fact that some developing countries had, indeed, been physically present in the drafting but seldom spoke out on particular issues, the Chairman’s understanding that they had made ‘significant contributions’ must be seriously doubted. All in all, an analysis of developing countries’ performance during the ten years of drafting in the Working Group evidences that their contributions were either tacit or marginalized, particularly in cases where they would have opened too much space for culturally contested concepts and ideas. IGO participation in the drafting Analysing the discursive processes surrounding the creation of the CRC shows that the participation of IGOs was rather meagre and that most

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IGOs restricted themselves to their narrower field of expertise. In total, nine IGOs participated in the drafting process, either directly through a representative or indirectly, when they submitted comments during the technical reading (which followed the completion of the first reading of the Convention in 1987).6 It is obvious from the drafting records that all of the IGOs only intervened when issues were discussed that touched upon their mandate. Thus, FAO attempted to insert the child’s right to food and WHO showed great interest in Article 24 on health standards in which it helped to clarify some awkward concepts in the first Polish proposal. However, neither did the WHO, for instance, send any representative when Article 23 on handicapped children was discussed (Defence for Children International, 1983c: 13), nor was there any significant knowledge introduced by specialized NGOs on this matter, and the International Year of Disabled Persons (1982) had virtually no impact on the drafting. From the drafting records, it appears that FAO showed the strongest interest in the overall Convention, issuing proposals and comments on a number of draft articles. It was, above all, one of the very few proponents of the prevention of ‘discrimination against female children’, especially with regard to food and education (ECOSOC, 1989j: 8). The most significant finding – which has already been commented upon by many others who investigated the cominginto-being of the Convention – is the absence of UNICEF during the important early phases of agenda-setting and conceptualization. Even when a UNICEF delegate was physically present in the Working Group, this did not result in greater involvement of this agency with the drafting. Not until after 1986, when UNICEF had celebrated its fortieth anniversary, did the organization show a greater interest in the drafting process. One of the most notable effects of late UNICEF involvement in the drafting is that their low-level of participation in the early stages of discursive interaction meant developing countries’ perspectives on childhood and their particular interests were only weakly reflected during the conceptualization and initiation phases. UNICEF finally realized that public attention and governmental interest in this Convention was rising (after 1986). By then, the only way it could meaningfully contribute to the drafting process on behalf of developing countries was to organize a number of regional meetings in less developed regions of the world. These meetings were not designed to invite critiques from developing countries’ perspectives, but rather to promote the Convention itself. It was, however, too late for UNICEF to seriously advocate for developing countries’ perspectives and ideas within the

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Working Group. NGOs (of only European/Northern American origin),7 who repeatedly claimed to represent developing countries’ perspectives and to take into account their difficulties with various concepts contained in the draft Convention (the nuclear family, the child as an individual, the child as independent, political and participatory rights for children), also seemed to adopt this role rather half-heartedly. As the main driving force for greater UNICEF involvement, they repeatedly urged the children’s agency to act as an advocate for the interests of developing regions of the world (NGO Ad Hoc Group, 1987: 1; UNICEF, 1983: 12–13). DCI, for instance, in its newsletter International Children’s Rights Monitor, wrote in 1983: ‘In particular, since the great majority of [UNICEF’s] programmes and concerns focus more especially on the children of the developing countries, it could act as competent spokesman on their behalf in the absence of government delegates from the Third World’ (Defence for Children International, 1983b: 6). However, although UNICEF held regular consultations with the NGO Group on the possible format of UNICEF involvement, the agency expressed, on several occasions, its reluctance to become a main vehicle of the future Convention, fearing that excessive participation might compromise governments and jeopardize UNICEF’s work. UNICEF was primarily a service organization with little budgetary independence. Accordingly, the organization hesitated to replace its traditional child protection perspectives (usually concentrating on children between 0 and 5 years of age) and take up the idea of children’s rights as human rights. The Children’s Fund was already anticipating that the CRC might be a rather ‘revolutionary’ document with regard to the organization’s principles and main areas of action – thus, promoting such an instrument was seen as potentially shaking UNICEF’s very foundations. Most importantly, promoting the framework of the CRC would have meant significantly expanding the age group of ‘children’ (up to 18 years of age). UNICEF’s primary contribution at this stage was to join the NGO Group in their rallying cry in favour of ‘Target ‘89’, pushing for the finalization of the drafting by 1989. Thus, UNICEF restricted itself to roles of technical assistance, logistical assistance to the NGO Ad Hoc Group and, most of all, promoting of the draft Convention in developing regions and the facilitating of the participation of the NGO Group (for instance, by making available its rooms for NGO meetings). Meanwhile, its substantial input in the text-creation was remarkably low. It was not until the technical review in 1988 that UNICEF took on a more constructive role in suggesting certain revisions to drafted articles. These revisions were, in most cases, positively reflected during the second reading and, thus, had a significant influence on certain issues

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in the final text, most notably with regards to gender-neutral wording. The extensive comments with which UNICEF responded to the technical review in 1988 nevertheless show that the organization did have something to say about the potential content of the Convention and that it pushed its own views on certain issues. From the documentation of the drafting process, one can conclude that UN special agencies did not make use of their potentially extensive participation rights, even though their definitions, issues and perspectives could have made a substantial contribution to the debate. Almost all of the proposals these agencies made during the technical review were incorporated into the final draft, with little discussion concerning their content. This suggests that they could have occupied a much more authoritative speaking-position in the drafting, particularly with a view to their special expertise and experience of developing countries’ realities. NGOs and exclusion The greatest asymmetry in participation rights affecting NGOs results from the arrangements for consultative status of the ECOSOC which were, during the years in which the CRC was drafted, laid down in ECOSOC Resolution 1296 adopted in 1968.8 These regulations have presented the strongest institutional barriers to participation of NGOs. With regard to the CRC, these regulations were among the main factors greatly reducing the number of child-specific NGOs that could participate in the drafting. What is more, the three different levels of consultative status (Category I and II and Roster status) assigned to those allowed to take part, according to Resolution 1296, also indicated different levels of access to conversational rights. NGOs in Category I and II were permitted to submit written statements and those in Category I also had the possibility to make oral interventions. In principle, however, the less formalized forum of the open-ended working group also meant that participation rules for NGOs were not as strict as these regulations stipulated. In some cases a few NGOs, such as DCI, had the opportunity to ‘sneak into’ the process by having their representatives participate for other NGOs. For instance, in the initial years of the drafting, Nigel Cantwell of DCI could participate because he was officially registered as participant for the Anti-Slavery Society.9 The formation of an NGO Ad Hoc Group As with the state delegates, the NGO Group which, over the years, expanded significantly also showed a strong bias towards NGOs that originated in industrialized countries and had established their

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secretariats in Europe, Canada and the United States. Thus NGOs from developing regions of the world had to rely on representation of their understandings and interests by the NGO Group, if they were to be represented at all. Developing countries’ views, more traditionally protective and emotive perspectives on the child (especially the young child) and, generally, diverging non-Western understandings of childhood (such as, for instance, those placing greater emphasis on the child as part of a larger community, that is, African, Asian and indigenous perceptions) were also gradually being expelled from the debates after the rather large group of NGOs formed into an NGO Ad Hoc Group in 1983. Most NGOs had come to realize that their performance had been chaotic and counter-productive in the preceding years. As Cantwell – the NGO Ad Hoc Group spokesperson – stated, prior to 1983, NGOs had been ‘losing out because of an inability to “get the message over” in the right way and at the right time. Very few had previous experience with this kind of context’ (Cantwell, 1990). According to Cantwell, by creating the group, NGOs tried to respond to two major ‘ills’: ‘lack of preparedness and lack of a coherent NGO stance’ (Cantwell, 1990). However, this process of building a more forceful and unitary discursive coalition among NGOs came at the expense of marginalized speaking-positions. Especially with regard to voices from developing countries it appears that once in place the NGO Ad Hoc Group urged other actors to promote developing countries’ views, rather than taking on this role itself. In 1985, a Group of NGOs (DCI, Rädda Barnen International, ICJ) issued a statement to the CHR, in which it emphasized the need for participation of developing countries in the Working Group (ECOSOC, 1985d). Mainstreaming NGO input The formation of the NGO Ad Hoc Group showed remarkable results as regards the content and timing of NGO proposals and interventions, and the accompanying lobbying practices.10 After their particularly poor performance in the 1983 session of the Working Group, several of the NGOs directly concerned with children’s issues had come to the conclusion that participation of NGOs in the treaty-making process was greatly in danger, since they had taken up precious drafting time in order to resolve their own disputes. The main objective of the resulting concerted effort among NGOs, thus, was to present clear and unified proposals and opinions, without, however, denying to dissenting NGOs the right to make individual statements. In practice, though, this meant that NGOs departing from the Group’s stance had little chances to have their voices heard and taken seriously for consideration. For

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instance, in the 1984 meeting of the Informal Ad Hoc Group on the Draft Convention, it was stated that ‘individual NGOs were free to make proposals other than those contained in the report, in their special sphere of competence, without jeopardizing the impact of the joint NGO report [emphasis added, A.H.]’ (Cantwell and Bruce, 1984a). Those NGOs espousing an uncommon view of the child, those departing from the mainly factual, disinterested and unemotional stance promoted by the NGO Group as a whole and those unable to associate the protection of children with human rights language (as opposed to the conventional ‘welfare’ terminology) were no longer able to promote their contesting understandings of childhood and child protection. Cantwell, spokesperson of the NGO Ad Hoc Group and one of the most active NGO participants, described the process of ‘mainstreaming’ and resulting exclusionary practices rather straightforwardly: We had the biggest difficulties with the anti-abortion group, but we simply chucked them out. Then there were also problems with Indigenous Organisations (Four Directions Council). But mostly the mainstreaming process was very smooth.11 From confrontation to partnership It is also the case that when lobbying individual governments for support of their proposal, the NGOs turned to those governments who were most active in the Working Group (even though often only having observer status), those most sympathetic to NGO involvement and those with which they had strong national ties. The International Social Service (ISS) attempted to have its recommendations made known to the Finnish delegate by its Finnish branch (Cantwell, 1987: 2). In addition to that, one of the most influential NGOs, Rädda Barnen, had strong ties to the Swedish government, with which it actually built up a (unsuccessful) discursive coalition struggling for greater protection of child soldiers under the CRC. Thus, ultimately, discursive coalitions between NGOs and governments were exclusively between Northern NGOs and European/Northern American governments: Norway, the Netherlands and Canada. Almost all NGOs participating were of Northern origin and they had to repeatedly remind themselves ‘to avoid giving an overWestern image’ (Cantwell, 1987: 2). If one looks at the various working papers and informal briefing notes that were disseminated by the NGO Ad Hoc Group after 1983, it becomes obvious that the most active NGOs in the group were largely disseminating a perspective on child protection which placed the

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individual child with his or her individual human rights at the centre of concern. In the reports, the NGO Group was very careful not to insert too drastic or lengthy articles or formulations. When they introduced entirely new ideas or articles they sought to make them resonate with already existing legislation or previously drafted articles, for instance, by attaching a new thought to an already drafted article rather than presenting it as an entirely new issue-area. What is more, although at various points they discussed the desirability of promoting a perspective on the ‘family environment’ different from the one shared by most government delegates (the nuclear or biological family: father, mother, child/ren), their various proposals strongly suggest that the ideal family environment for the child was the nuclear or ‘biological’ family. NonWestern family concepts which distributed the responsibilities for children among an enlarged family environment (the so-called extended family), as a consequence, were largely neglected, even though these concepts were referred to by various actors at numerous stages of the drafting. Particularly in its legal background documents, the NGO Group clearly displayed a perspective on childhood that resonated with the views promoted by Western and Eastern European countries: the ‘evolving capacities’, the gradual emancipation of the child from his or her parents and the various civil and political rights that should be granted to older children. After the first informal consultation between NGOs and governments in 1983, for instance, the NGO Ad Hoc Group issued a working paper in which it had collected several NGO and state delegates’ comments on the various articles drafted so far. The International Federation of Women in Legal Careers and the International Abolitionist Federation stated the following with regard to Article 1 on the age definition: In view of the increasingly early development of children and the present tendency to include young people in discussions relating to family decisions or outside problems, we consider that a second paragraph should be added, reading: ‘Account shall, however, be taken of the passage from childhood to adolescence, which will lead to a different approach to the rights and duties of children’. (ECOSOC, 1983f) The same two NGOs proposed strengthening the participatory rightsdimension with regard to draft Article 6 which, at that time, provided that a child’s place of residence should be determined by his or her parents. Accordingly, they stated that they would like to add: ‘It shall be

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understood that the children will have the opportunity to express their preference’ (Defence for Children International et al., 1983: 6). NGOs, in this first common working paper, were strongly in favour of protecting not only those children living in exceptional circumstances (poverty, war, hunger, street, labour etc.) but also children living within the context of the home. In doing so, they made reference to widespread practices of intra-familial child abuse (which was, as has been noted above, in the years preceding the drafting, one of the most sensational topics discussed in Western democracies).12 Although individual NGOs such as DCI tried to mitigate the ‘Western standpoint’ from which the article on child abuse and neglect originally proposed by the United States was drafted, they nevertheless showed great interest in this particular sub-topic (Defence for Children International, International Catholic Child Bureau and Rädda Barnen International, 1983). The Children’s Legal Centre (through DCI), thus, proposed to extend the draft Article 13 on health-care facilities: A child shall have the right to seek confidential treatment, and the States Parties to the present Convention recognize that a child who is capable of understanding the nature and implications of any medical treatment is entitled to consent to, or withhold consent from, any forms of medical treatment. (Defence for Children International, International Catholic Child Bureau and Rädda Barnen International, 1983: 19) Taken together, these comments put forward by the NGO Group suggest that they were reinforcing the tendency to ‘go private’ in order to render assistance also to the child within the family context. Furthermore they sought to make the child count as an individual (not as part of the family as a group), promoting his or her potential to be independently involved in family and personal decision-making. Price Cohen of Human Rights Internet, for example, wrote afterwards that even though ‘the NGO Group never formally took a stand pressing for the rights of the individual child, their written textual recommendations were usually presented in these terms’ (Price Cohen, 1990b: 308). In their various informal briefings and working papers, however, the NGO Ad Hoc Group repeatedly made reference to the necessity of better incorporation of developing countries’ perspectives into their work and of guaranteeing ‘cross-culturally acceptable’ formulations (Defence for Children International, International Catholic Child Bureau and Rädda Barnen International, 1983: 32). In this regard, for

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instance, they undertook to promote non-Western perceptions of the ‘extended family’ in their work. And yet, their various lobbying efforts with UNICEF show they sought to persuade the latter to represent these potentially conflicting perceptions of childhood, rather than choosing to promote these views themselves. While the mainstreaming of NGO positions had a positive effect on their input in the drafting (as reported by several participants) and allowed them to substantially contribute to the final text, it required that they adapt to the institutional rules of the Working Group, embrace a diplomatic and politically neutral stance and shun those opinions that would have threatened this cooperative character. Emphatic and confrontational positions occupied by NGOs in the early phases of the drafting were exchanged for a role of advisor, facilitator and assistant the moment the NGO Ad Hoc Group was formed. As a consequence, NGOs improved their reputation and credibility and, accordingly, enhanced their participation rights in terms of speech-act entitlements and their access to conversational resources. On the other hand, this change of NGO role led to much more rigid and less creative possibilities for engaging in meaning-making and ultimately reduced their potential to represent a diversity of worldviews and perspectives. Excluding the beneficiaries of the Convention As a last dimension of the exclusion or ‘narrowing down of speaking subjects’ this section will discuss the absence of children themselves in the drafting process. On only two occasions during the debate did a group of children actually appear in front of the Working Group. On both occasions, however, the main purpose of children’s involvement was to show that they were supporting the Convention, rather than giving them the chance to voice their particular concerns and interests. At first sight, this does not seem particularly surprising, since international human rights treaties are primarily drafted, adopted and ratified by official representatives of nations, that is, adults. Thus, in the case of the CRC it was assumed that implicitly or explicitly, adult drafters would represent ‘opinions held by children and youth organizations active in the countries they represented’ (Lopatka, 2007: 63–64). Nevertheless, as Chapter 7 has made abundantly clear, meaning-struggles surrounding an international notion of the child and childhood within the Working Group were rife. Discussions repeatedly returned to children’s right to be involved in decisions affecting them and their growing ability to meaningfully reason about their interests and views. Thus, it is more than legitimate to ask why at no point in the drafting process were

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individual children or groups of children given the opportunity to voice their concerns and understandings of such a future child convention in front of state and non-state delegates. Many of those who have critically examined the coming-into-being of the CRC have been puzzled by the open exclusion of the future beneficiaries of the Convention (Freeman and Veerman, 1992: 5) – even though it is likely that any children involved would have had little more than a symbolic chance to participate. Per Miljeteig-Olssen, Norwegian delegate in the drafting, considered it ‘somewhat paradoxical’ that the drafting had taken place ‘in the total absence of children’, making reference to the CRC’s recognition of children as ‘independent human beings’ (Miljeteig-Olssen, 1990: 153). However, notwithstanding this line of reasoning, he reaches the conclusion that this is, in a way, quite natural since children as a group do not have the capacities required to take part in the governing process of society. As the world is organized, decisions are made by adults. We make the laws and allocate the resources. However, this does not mean that children have no place in this picture. We only have to find appropriate ways of including them. (Miljeteig-Olssen, 1990: 153) Not even the NGOs that in general claimed to directly represent the interests of children – beyond any narrowly defined national political interests – gave children the opportunity to be listened to. NGO representatives’ comments reveal that, in fact, they did not think it appropriate to have children speak in a high-level political forum such as the Working Group and the CHR. Cantwell, spokesperson of the NGO Group, for instance, stated that according to his interpretation, Article 12 on the respect for the views of the child largely applied to the family circle. He disapproved of the actual involvement of children in public or political matters, in general and for the drafting: well, when a kid stands up and says, ‘we want peace and we want an end to war’, well, ok, for that kid it may be nice to stand up there and say that, but it doesn’t really advance humanity as a whole.13 Florence Bruce, participant for the ICCB presents a slightly different picture, arguing that, since the idea of child participation was ‘so new [...] I don’t think that we thought about children participating in the drafting’.14 Bruce contends that, after establishing the NGO Ad Hoc

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Group, NGOs were ambitious and so overwhelmed by the possibilities to influence the drafting that bringing up the idea of having children participate ‘did not figure in the NGO Group and the drafting group’.15 Other NGOs, in contrast, showed great concern over the neglect of children’s voices in the drafting. In 1983, the International Association of Youth and Family Magistrates issued a letter to the NGO Group in which it demanded that the voices of adolescents should be heard. As such, ‘they could make their views and observations known in the form of periodic reports to the Commission on Human Rights’.16 The absence of children’s or adolescents’ voices in the drafting is all the more surprising when taking into account that, despite 1985 being declared the International Youth Year, youth organizations (of which there were plenty) were not invited to speak in the Working Group or the Commission. During this year, Mr Herndl, Assistant Secretary-General for Human Rights, stated that he ‘hoped that the commencement of International Youth Year would inspire greater efforts to promote and protect the rights of young people; that inspiring cause must naturally begin with the child’ (ECOSOC, 1985c: para. 108). However, both the records of the CHR and those of the Working Group demonstrate that no delegate ever referred either to the International Youth Year or mentioned a potential contribution by young people. Thus, while a large part of the debates centred on the implications of enshrining an evolutionary concept of childhood in the Convention, this idea had not suffused participants’ understanding of childhood to such an extent that they considered it mandatory to listen to those children’s opinions on the draft, despite the draft referring to their evolving capacities, which might be seen as qualifying them to reason on the Convention.

8.2

Asymmetry in knowledge and conversational rights

Asymmetrical relationships of discursive power are also a reflection of asymmetries in knowledge (Linell and Luckmann, 1991: 5), that is, the knowledge resources participants bring to the communicative event in question and the ways in which they can exploit these resources. In this regard, the alliance of NGOs discussed above was not only intended to increase their conversational rights and professionalism, but it was also aimed at counterbalancing asymmetries in access to conversational resources (i.e. the right to speak, make interventions, distribute working papers – which were mainly reserved for government delegates) with the power of expertise. Thus, for this particular process of meaningnegotiation, it can be argued that weak knowledge on the part of those

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participants with strong conversational rights (in this case, state actors) opened up windows of opportunities for actors who are weak on conversational resources but strong on first-hand knowledge about the issue area in question.17 The lack of substantive input from IGOs such as UNICEF created considerable room for manoeuvre for NGOs, particularly those with a child protection background, to brief and inform government delegates. The absence of knowledge When the Working Group took up its work, it became clear that many delegates were far from being experts in child issues. Many of those who either participated in or commented on the drafting confirmed that few policy-makers were familiar with the CRC’s predecessor – the 1959 Declaration on the Rights of the Child.18 In fact, there were many instances in which delegates openly admitted to not being knowledgeable enough to make an informed decision or statement on a certain question. In some cases, they explicitly asked NGOs or IGOs to provide them with definitions of the problems at stake, such as when Article 19 on intra-familial child abuse and neglect was discussed. The same applied to cases where no previous international instruments existed that covered the issue at stake, such as, for instance, during the discussions covering child abuse and maltreatment, adoption or child trafficking, in which delegates relied particularly on the first-hand experience of NGOs and their knowledge of the problem. These were often the moments in which NGOs were given the opportunity to make interventions or in which government delegates would seize on suggestions for particular questions to be addressed and/or wording suggested by the NGO Group. Expertise of participants Those who commented on the composition of the Working Group agree that it was only towards the second reading of the Convention that governments sent more high-profile staff. LeBlanc contends that knowledge and expertise of state delegates was strongest for developed states (who were usually represented by higher-ranking diplomats or legal experts), whereas ‘less developed states were usually represented by lower-ranking members of their permanent delegations to the UN’ (LeBlanc, 1995: 27). Longford, UK delegate in the drafting, reports that delegates with ‘responsibility for child care policy’ (of whom he was part) were ‘in a minority’ in the Working Group (Longford, 1996: 225). Apart from great disparities in the knowledge about children’s issues

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on the part of government delegates, those coming with a background in children’s rights or child protection were also divided into different groups of experts promoting different understandings. Marta Santos Pais, delegate for Portugal, described the Working Group as a rather disparate set of people who all came with different frameworks: You had too many different people. You had international private law lawyers associated that were dealing with the Hague Convention of the Council of Europe, and then, together with that, you had the welfare people, the people dealing with institutions where children were placed for their well-being, and then you had people from the education sector and people from the health department. They were all coming with their own expertise and language. They had different sectoral agendas but there was a space to put it together in the discussion.19 Similarly, Price Cohen, representative of Human Rights Internet, reported that delegates to the Working Group came from many different governmental departments. Although some governments were represented by lawyers from their ministries of justice and foreign affairs, other governments sent representatives from their departments of consumer affairs or social services. (Price Cohen and Naimark, 1991: 61) However, according to Longford, Cantwell and Santos Pais, notwithstanding those lacking expertise on family law and children’s issues, there were a large number of ‘legal draftsmen from Ministries of Justice or Departments of External Affairs’ in the Working Group (Longford, 1996: 225). Accordingly, Price Cohen takes this heterogeneity of participant’s knowledge and expertise coupled with the ‘revolving door’ practice as one of the main factors contributing to the progressive spirit of the Convention which modelled children’s rights according to existing ‘adult’ human rights legislation rather than following the paternalistic undertone of previous international legalization in the field of child protection (Price Cohen and Naimark, 1991: 61). The general human rights training of most legal experts and government delegates in the drafting (rather than an explicit children’s issues expertise) can be taken as a further element contributing to the strong prevalence of the two Covenants in the Working Group and the fact that many of the strongest ideas relating to the emancipatory dimension of the Convention

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were a direct outcome of explicitly conferring general human rights to the special case of children. Within the NGO Group, it also appears that there were two particular groups with an advantage in expertise: those knowledgeable on children’s issues (of which there were few) such as the ICCB, DCI, IUCW and Rädda Barnen, and those knowledgeable on international human rights legislation in general, most notably AI, ICJ and Human Rights Internet. A combination of the expertise of these two groups led to a crossfertilization that allowed the NGO Group to fuse its expert knowledge on children with the appropriate legal framework required to meaningfully contribute to the drafting process.20

8.3

Excluded modes of speaking – re-contextualization

In discursive practices of re-contextualization speakers attempt to make their individual speech-acts fit with what they think is the appropriate terminology or linguistic code of the institutional framework in which they speak. Practices of re-contextualization represent a third dimension of discursive exclusion, since adaptation to the institutional environment often involves pushing aside alternative modes of speaking – especially for those actors who go from an informal to a formal communicative setting or vice versa. In this regard, NGO activities of mainstreaming and ‘jurification’ (Raes, 1997) of their statements and argumentation represent the most interesting facet of re-contextualization, considerably reducing the modes of speaking about children and childhood in international politics. This was the first opportunity to operate in a high-profile intergovernmental setting such as the Working Group of the Commission on Human Rights for all participants to the drafting who came from child-specific NGOs (Rädda Barnen, IUCW, DCI, ICCB).21 Equipped only with the communicative genres and codes they employed when confronted with public sentiment and civil society activities they had to find innovative ways to make their voices resonate within the official, diplomatic institutional framework of the UN treaty-making forums. Legal discourse in NGOs’ communicative practices NGO observers agree that one of the most important facets of improved NGO participation in the drafting process was a learning process within the NGO Ad Hoc Group whereby the Group acquired the linguistic skills required for making their proposals echo either existing articles or norms already enshrined in international law. As NGO participants

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admitted, none of the child-specific organizations had ever participated in such a drafting exercise and, thus, at first they experienced difficulties in reflecting the legal language prevalent in the Working Group.22 However, they were quick to understand that certain drafting skills had to be acquired in order to make their proposals better resonate with state delegates’ proposals. For instance, at the NGO Ad Hoc Group meeting in 1984, it was noted that ‘the texts submitted by NGOs, whilst valid in themselves, had not been counterchecked by a legal expert, and therefore lacked, in certain cases, a formulation on which NGO interventions could be based’ (Cantwell, 1984). As a consequence, childspecific NGOs acquired their negotiating skills and knowledge about legal ‘argumentation’ from those NGOs who were more experienced with intergovernmental negotiation settings, such as AI and the ICJ.23 According to Florence Bruce, representative of the ICCB, NGOs had quickly learned to read a few Conventions, you know, ‘the States Parties to this Convention’, ‘the child has the right to ...’. No, we developed a lot of the language I would say, in most of the articles on which we had an influence. (Florence Bruce, 2004) Introducing legal terminology to NGO proposals was also the result of the association of Human Rights Internet with the NGO Group in 1983. Human Rights Internet had been granted Consultative Status II by ECOSOC in May 1983 and delineated its mandate as follows: ‘... the collection and dissemination of information on all those human rights contained in the Universal Declaration of Human Rights, the International Covenants, and other international instruments’ (Price Cohen, 1983). The increasing engagement of the NGO Group into legal exercises that critically evaluated draft articles in the light of existing legislation was also due to interventions by the ICJ, Human Rights Internet and AI in the meetings of the NGO Ad Hoc Group.24 The discursive repertoire of international law and its exclusionary effects The legalistic linguistic code embraced by NGOs considerably restricted any kind of ‘diversification’ of worldviews and modes of speaking, sidelining NGO’s experience with emotional, emphatic language of concern in advocacy and awareness raising activities. As Toope observes in his discussion of the ramifications of the language of law on the childhood discourse in the drafting of the CRC, ‘[c]oncern and empathy are qualities which are not much associated with assertions of rights’ (Toope,

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1996: 51). By adhering to rights-talk as a ‘tool of legal advocacy’, Toope argues, advocates for children in the drafting were gradually abandoning alternative discourses, particularly those poignant and heart-rending discourses with which they traditionally sought to incite public interest and support (Toope, 1996: 51). The fact that delegates had very early in the process of the drafting agreed upon formulating a human rights convention for children similar to the two Covenants and CEDAW, in which legally binding principles rather than moral aspirations should be laid down, made it difficult for NGOs to enrich the drafting either by promoting their interests and perspectives on child protection individually or by using a more ardent and emotionally involved language in their statements. To do so would have jeopardized the growing confidence and partnership between state and NGO actors in the Working Group and the credibility of NGO participation. The following quote only too aptly summarizes the exclusionary dimensions that go hand in hand with processes of re-contextualization: And what happened so often with those that were not in that kind of category [organizations with a human rights approach] was that they had their line. It was not necessarily a rights line but more an ethical or moral line that they had decided to espouse on one specific issue in the whole gambit of children’s issues and, you know, if what they were saying didn’t have a grounding in the rights of the child then most times they would be marginalized.25 It appears, however, that there were some instances in which both state delegates as well as NGOs ‘slipped’ from a rather emotionally detached, technocratic and depersonalized genre. These occasional deviations from a largely legal-technical style of argumentation and drafting reveal the strength of the legalistic linguistic code in the drafting. For example, in 1987, the International Board on Books for Young People suggested to include a new sub-paragraph to Article 17 on the child’s access to information which said that States Parties should ‘encourage, at all levels, literacy and the reading habit through children’s book production and dissemination, as well as the habit of storytelling’ (ECOSOC, 1987c: paras. 21–22). The idea of inspiring reading habits and, particularly, the habit of storytelling clearly point to a different discursive repertoire coming from educational and pedagogical discourse. However, the suggestion to promote children’s books in the CRC was taken up by the drafters. In the ensuing discussion, the representative of Austria welcomed the ‘basic idea of the proposal’ and

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‘suggested that it should be put forward in legal terms’.26 Accordingly, the final provision read ‘Encourage the production and dissemination of children’s books’. With the institutionalized linguistic codes and rules of interaction characterizing the procedures in the Working Group also came the necessity to both seriously shorten and generalize the ideas and aspects introduced into the debate. Thus, while initial NGO proposals were often of a quite lengthy and detailed nature, thereby demonstrating the considerable expertise of the NGO Group or the particular interests of individual NGOs in specific matters, working papers submitted later adhered to the pragmatic, brief and to-the-point structure of those articles submitted by States Parties. At the beginning of the drafting, NGOs’ lack of experience with UN drafting exercise and with highly politicized settings such as the CHR was also reported by government delegates such as the UK delegate Michael Longford – he contends that ‘some of the NGO speakers were inexperienced, and put forward in an unconvincing way points of view which were either irrelevant or impracticable’ (Longford, 1996: 221). Ultimately, thus, NGOs had to seek alternative channels of communication (letters) and informal social forums. Re-contextualization and the ways in which NGO participants adapted to the institutional environment of the CHR Working Group become all the more visible when contrasting the social and linguistic practices of NGOs in the narrow framework of the drafting with the ways in which they reported on the drafting before and after the sessions of the Working Group. While members of the NGO Ad Hoc Group refrained from advancing overtly political or ideological opinions in the Working Group, their reporting of the dynamics in the Working Group was much less diplomatic and neutral in its tone and displayed strong dissatisfaction with many of the provisions already drafted. A particularly marked example for this switch in linguistic codes is the reporting of the drafting process in DCI’s journal, the International Children’s Rights Monitor. Here, the language used to depict the drafting process diverged from the cautious disinterested style of the NGO proposals and reports: ‘Playing hard to get is an unfortunate game for governments to choose when the rights of up to half of their populations are being debated’; or ‘over and above the governments, the intergovernmental organisations were remarkable – and remarked – once again for their absence. Even the optimism created by last year’s sudden burst of energy on the part of UNICEF proved unjustified’ (Defence for Children International, 1987: 4).

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8.4 The taboo of the subject – the exclusion of semantic participants Closely related to all three exclusionary dimensions discussed above – (1) asymmetries resulting from the participatory and decision-making framework (2) asymmetries in knowledge and (3) asymmetries resulting from ‘institutional talk’ – this section will investigate the exclusion of semantic participants, that is, the exclusion of particular issues, opinions and worldviews. In fact, the exclusion of semantic participants must be seen as an effect of all other three dimensions. Investigating the influence of procedural and time constraints on the discursive practices under scrutiny and the various means by which the contentious issues that were the most time-consuming were gradually solved or, otherwise, pushed out of the process represents the most fundamental dimension of the funnelling process. However, funnelling is also characterized by so-called non-decisions, that is, items that have not been discussed at all or, when brought into play, placed in a marginalized position (i.e. those items that occupied the smallest space in the meaning-negotiation). As shall be seen, exclusionary practices with regard to non-decisions on specific issues or aspects of issues were mostly related to time constraints and asymmetrical participant status, such as, for instance, the Chairman’s considerable authority to abruptly end particular disputes. The funnelling process that significantly influenced the discussion of the issue-areas analysed below accounts for the prevalence of European and Northern American conceptions of the child, his or her family environment and particular childhood ideals. Time constraints, permeability of issues and the exclusion of semantic participants In the course of the initiation phase of the drafting and the first reading, many new issues and formulations were added to the second Polish text – in fact, while it served as the basic working text, no single article of the second Polish proposal remained unchanged. Agenda-setting, thus, was far from finished with the acceptance of the second Polish draft Convention and permeability for new issues remained high throughout the first reading. However, a review of the proposals and working papers submitted evidences that most articles added to the second Polish draft were based on those already in place; that is, the issues had already been contained in some form or another in the Polish proposals, and participants had agreed they deserved more careful or extensive

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elaboration. Only 6 of the 42 substantial articles were totally new and unrelated to the second Polish proposal: articles on refugee children; children belonging to a minority or an indigenous group; children in institutional care; drug abuse; children in armed conflict; physical and psychological recovery; and social reintegration. After years of relatively slow advances in the draft text between 1979 and 1985, particularly after the finalization of the UN Convention against Torture, public awareness of the CRC heightened after 1986. This awareness was also an outcome of enhanced participation of the NGO Ad Hoc Group and UNICEF. Drafters of the CRC increasingly recognized that ‘target ‘89’ for the finalization of the CRC was a most appropriate time frame and that the drafting could continue indefinitely if it were not prioritized. The UN Secretariat also increased its interest in the drafting process and repeatedly urged the CHR to give priority to the finalization of the UN CRC.27 Thus, after 1985, the pressure was on to ensure that the CRC was ready for adoption in 1989. ‘Target ‘89’, as the deadline became known, was also fiercely promoted by the NGO Ad Hoc Group which, in informal meetings, lobbied state delegates for stricter adherence to the issues at stake and less politicized discussion. While at a 1986 meeting of the NGO Group, NGO representatives did not seem to be sure if they ‘want the UN Convention to include ALL areas of child protection’ or if they ‘want a FAST FINISHING [sic] of the UN Convention’ (Ek, 1986: 7), from 1987 onwards the Ad Hoc Group voiced its desire for adoption of the Convention text by 1989. NGO reports and briefing documents show clearly that they were willing to sacrifice further input into the negotiations and to refrain from acting as brakemen, in order to complete the text by 1989. NGOs feared that if ‘target ‘89’ was not reached, the whole project of the Convention (which would greatly benefit their activities and standing in the long term) would be threatened. This heightened time pressure had the effect that certain bargaining processes over the most contentious articles did not lead to a reopening of the debate, in order not to endanger Target ‘89 (Price Cohen, 1997: 394). ‘Freedom of religion’: Time constraints, conversational rights and the exclusion of most contested items The lengthy discussion revolving around the rights of the child to freedom of thought, conscience and religion (within the framework of Article 14) exemplifies how certain issues that were debated time and again in the drafting were brought to an abrupt conclusion. Freedom of religion is especially important to the notion of individual child rights

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and the controversial nature of specific rights to self-determination being linked to a notion of evolving capacities. The debate on Article 14 made it abundantly clear that paternalistic and authoritarian perspectives on who would determine a child’s best interests (in this regard the parents’ right to choose a religion for their child) had by no means vanished from the scene and that, furthermore, the introduction of private family matters such as religious belief and practice into the debate gave rise to numerous heated debates. The idea that States Parties should respect the right of the child ‘to freedom of thought, conscience and religion’ had not been contained in the Polish draft – it was introduced in 1983 by the delegate of the United States, making reference to the two Covenants which provided for this right and to the UN Declaration on the Elimination of All Forms of Intolerance on Religion or Belief (UNGA, 1981). When the draft article was discussed for the first time, it was already clear that there was a rift between those delegates supporting such a reference to choice of religion and those who ‘expressed doubts as to whether it should be the responsibility of the State to ensure that the child has the right to freedom of thought’ (ECOSOC, 1983d: para. 55). At the next session, various parties made new proposals – all of them intended to overcome the delicate balance between the child’s freedom of choice and respect for ‘the wishes, freedoms and rights of the parents or legal guardians in the exercise of these rights of the child’.28 The concept of the ‘evolving capacities’ was introduced in both proposals in order to provide a balance between parents’ guidance and the child’s right to self-determination. When an informal drafting group had, at last, formulated an acceptable basic working text, the only dissenting voice that was raised to the substance of the article was, not surprisingly, the Holy See: its delegate argued that the ‘right of the child to have or choose a religion or belief was [not] explicit enough’ (ECOSOC, 1983d: para. 15). The ensuing discussion on the article was led entirely among states of Western and Eastern Europe, characterized by a strong spirit of compromise in which it was the wording of the article that was at stake but not its general idea. Although some Muslim countries were present (Islamic Republic of Iran, Lebanon, Morocco),29 they did not contest the article under deliberation. The Islamic Republic of Iran even participated actively and positively in the exercise to find appropriate formulations for the child’s freedom of religion (ECOSOC, 1984c: para. 21). The first entirely critical comment on Article 14 was put forward by Bangladesh in 1986, contending that the article ‘appears to run counter to the traditions of the major religious systems of the world and in particular to Islam.

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It appears to infringe upon the sanctioned practice of a child being reared in the religion of his parents’.30 A critical comment by Morocco followed in 1987 (ECOSOC, 1987c: para. 2), which was reiterated during the 1988 discussion in the Working Group (ECOSOC, 1988f: para. 42). The Moroccan objection which questioned the child’s ‘capacity to form his own views’ (ECOSOC, 1988f: para. 42) was rejected and prompted by a general consensus that ‘article 7 [now Articles 12–16 of the CRC], as already adopted, reflected globally all points of view’ (ECOSOC, 1988f: para. 43). On the very first day of the second reading, the Chairman proposed establishing five different drafting groups on the most contentious of the difficult areas, among them the so-called religious issues (Article 7 bis). The drafting group on this article was composed of all those potential contesters of the ‘freedom of religion’: the Holy See, Morocco, Bangladesh and Italy. The Moroccan delegate was designated as coordinator. However, in the end Article 7 bis (later Article 14 of the CRC) was discussed as the last substantial item on the list, on Friday afternoon, 7 December 1988. When the Working Group turned its attention to the adoption of the article, the Moroccan delegate explained that the informal drafting group could not reach a consensus. During the discussion that followed, the Libyan delegate, for example, declared that ‘the right of a child to change religion [...] stood in contradiction to the abilities of the child’ (Johnson, 1988: 42). He further ‘noted that children had neither political rights nor even the right to manage their own money since it was recognized that these matters required the maturity of an adult’ (Johnson, 1988: 43). The oppositional discursive coalition that wanted to delete freedom of choosing one’s own religion from the Convention was also joined by Senegal, whose delegate stated that ‘we should not destabilize the family structure’ (Johnson, 1988: 43). The Soviet delegate, also in favour of weakening this right to selfdetermination, said that ‘it was important to have the support of the Islamic countries on this Convention’ (Johnson, 1988: 42–43). After a rather long and divisive debate and after considerable pressure from the Chairman (stating that ‘it would be no problem if [the article] would not be included in the Convention’ (Johnson, 1988: 43)), drafters finally agreed not to omit freedom of thought, conscience and religion from the Convention – however, they mitigated this right by making reference to the rights and duties of the parents (or legal guardians) ‘to provide direction to the child in the exercise of his or her right in a

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manner consistent with the evolving capacities of the child’. Not only this, but the ‘freedom to manifest one’s religion’ was further subjected to ‘limitations as prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others’. The Chairman declared that, as such, ‘there would be no problem about changing religion and no threat to the family’ and then declared that ‘consensus had been reached’ (Johnson, 1988: 44). However, in light of the strong contestation of these principles by Muslim states and other developing countries as well as with regard to the high reservations that Muslim states placed on the CRC afterwards, the apparent consensus on this item is highly doubtful. Rather, the article was adopted despite ongoing resistance of a broad discursive coalition considering this particular right to self-determination as incompatible with their legal systems and despite persistent recognition of many non-Muslim states that such an article would cause considerable problems to Muslim countries.31 By touching upon the private family sphere and questions formerly thought to belong to the autonomy of the family (such as choice and exercise of religion), by trying to allocate responsibilities for the safeguarding of the child’s rights between parents and the State, the delicate question of parental authority increasingly came to occupy a central place in the debate. Notions of the evolving child frequently clashed with outright paternalistic perceptions on parental guidance and adult rights held by delegates of Muslim countries and with beliefs in family sanctity on the part of other developing countries (Senegal). Introducing the delicate tripartite relationship between the child, parents and the State and expanding the emancipatory potential of the CRC in the course of the debate resulted in significant discursive clashes, particularly with regard to Article 14. The opposition to a notion of evolving capacities, thus, became obvious in these debates – however, time constraints and the dynamics of a decision-making process about to be completed made resistance virtually impossible. With culturally sensitive issues (such as abortion, adoption, family relationships, duties of children or freedom of religion) being kept ‘on hold’ until the last moment, with the Chairman urging delegates to limit themselves to discussion of formal or terminological matters (rather than substance) and with the Chairman’s determination that the article should remain in the CRC, a contestation of these issues was turned into a non-decision on the part of Muslim and/or developing countries.

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Disorders of discourse, participation rights and the exclusion of semantic participants – least time-consuming issues When looking at those items in the debate that occupied only a very marginal space in the drafting, it becomes evident that some of these non-decisions or non-issues largely resulted from the absence of developing countries’ worldviews and concepts in the debate (harmful traditional practices, duties of children vis-à-vis their parents, extended families and communities). Other issues, however, regularly popped up in the debate among a vast variety of actors (IGOs, NGOs, state delegates from all parts of the world) but did not receive enough attention to be discussed as issues in their own right. The most prominent examples being the particular discriminatory situation of girl children (in education, child marriage) and health issues related to children’s sexuality (child pregnancy, medical treatment/contraception). Non-participants and the issue of the extended family During the drafting, the absence of Asian and African delegates and their views on family structures, intra-familial decision-making, privacy, independence and child-rearing practices primarily made itself felt in the marginalization of the issue of extended families, community and alternative care. The omission of issues of wider familial or communal structures was particularly visible in most of the debates revolving around a child’s place in the family and the centrality of parents/ family in the development, upbringing, guidance and protection of the child. All those who have reflected on the particular meaning of childhood in developing countries have stressed that many tribal societies and communities, particularly those in Africa and Asia but also indigenous peoples around the world, have traditionally supported notions of the family that are very different to Western views (Freeman, 1996; Johnson, 1999a; Montgomery, 2001; Ncube, 1998a; Rwezaura, 1998a; Rwezaura, 1998b; van Egeren, 1999). Within the framework of the CRC drafting, for instance, the government of Malawi suggested including, into the definition of the child, ‘an illegitimate adopted child or a grandchild’ (ECOSOC, 1978a: Add. 4) – a definition of the child which strongly evidenced alternative forms of community (adopted) and extended family (grandparents) care for children. The centrality of a child’s extended family environment32 in many developing countries was partly acknowledged in the framework laid out by Article 5 dealing with parental responsibilities in the upbringing of the child. The text made explicit reference to ‘the members of the extended family or

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community as provided for by local custom’ and, thus, demonstrated a willingness of the drafters to draft a culturally balanced document. Yet, Member States’ comments on the Polish proposal as well as most of the discussions in the Working Group make clear that the great majority of drafters saw the family as basically representing the nuclear concept of mother-father-child(ren) and did not think about alternative conceptions of the family environment. This was also reflected in the fact that among those 11 articles referring to a child’s family environment, 7 were addressed to ‘parents’ or ‘legal guardians’ while only 3 included a broader notion of ‘family’ (Barsh, 1989: 27). Some of the drafters openly declared that a stronger emphasis on extended family relations would have made the CRC’s provisions and the allocation of responsibilities between the State, parents and the child even more complicated (ECOSOC, 1989f: para. 180). In a similar vein, it was argued in the 1982 discussion that the words ‘natural family environment’, which had been used in draft Article 10 (rights of the child deprived of a family), were ‘too loose for use in a convention [...] and should be replaced by the term “biological family” ’ (ECOSOC, 1982: para. 50). In most cases in which delegates referred to ‘family’ it was evident that they were relating to the biological or nuclear family, thereby excluding the possibility that other family members might be equally involved in the upbringing and protection of the child.33 Russell Barsh, representative of the NGO Four Directions Council in the drafting from 1986 onwards, reports that an informal survey among governmental and non-governmental representatives during the 1988 session of the Working Group, found that most of them believed nuclear families experience more freedom and initiative than extended ones, and that unsupervised substitute care by relatives is more likely to result in child abuse or neglect than state-supervised foster or institutional care. (Barsh, 1989: 27) UN Member States’ comments on the first Polish proposal already heavily played upon the notion of the nuclear family, most directly expressed in the frequent reference to ‘both parents’, ‘natural’ or ‘biological’ family – they neglected all other family members who might be charged with the care and protection of children, and who might have an affectionate relationship with the child. To a certain extent, NGOs attempted to redress the balance among the members of

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the Ad Hoc Group and demonstrated an awareness of potentially divergent perspectives on what constituted a family. Yet, proposals to ‘replace the term “parents” by a wider concept’ of the family put forward by the Four Directions Council and the International Committee of Children’s and Adolescents Movements (CIMEA) were being discussed rather late in the drafting process (end of 1987), when they were welcomed by the NGO Ad Hoc Group. As a consequence, the two proposals with regard to broader notions of the family made by the Four Directions Council and the NGO Ad Hoc Group in 1988 were issued much too late and did not form part of the Working Group debate.34 In general, NGO suggestions for new articles or re-formulations of existing ones displayed their adherence to the nuclear family as the basic family model (see for example: Defence for Children International, 1983a). This narrow focus on the biological parents is all the more unintelligible in view of the fact that the Convention addresses actors beyond the States Parties, such as, for instance, in Article 24 (health matters) which stipulates that health education should reach out to all segments of society. The exclusion of alternative forms of community and family appears to be particularly visible in the framework of Article 18, dealing with those persons sharing ‘common responsibilities for the child’. The insertion of the concept of the extended family environment might have been more than feasible in this context – however, the article only speaks of ‘the principle that both parents have common responsibilities for the upbringing and development of the child’. During the discussion of Article 18 in 1981, there was an exchange of arguments, where one representative ‘drew the attention of the Working Group to the fact that there were many developing countries where the possibility of having child care services was virtually non-existent due to scarcity of resources’ (ECOSOC, 1981b: para. 108). In the same discussion, another delegation emphasized that in certain countries, childcare facilities were ‘established and maintained primarily by local communities or private entities and that eligibility requirements of such facilities must not be undermined by the Convention’ (ECOSOC, 1981b: para. 108). However, this raised awareness of alternative forms of care and distribution of responsibilities among private individuals belonging to the larger family or community did not lead to a reformulation of the article. The absence of any discussion on a child’s extended family or community environment is perhaps hardly surprising. At the 1981 session, the only African representative present – the delegate from Zaire – who was most likely to speak in favour of an African notion of the extended family did not actively participate in the drafting.

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It was only towards the later stages of the drafting, when opportunities to renegotiate fundamental concepts of the draft CRC were fewer, that certain actors became aware of the fact that the issue of extended families and a child’s community life might be one of the most important dimensions of a more culturally sensitive approach to children’s rights. The most notable among them were UNESCO and the NGO Ad Hoc Group. During the technical review, UNESCO’s critical comment on the Convention as whole made a strong case for the recognition of alternative types of family environment: It should be noted that there are different types and forms of families and that all children (such as refugees or victims of war) do not have a family environment, and they should also have the right to a full and harmonious development of their personality in an atmosphere of happiness, love and understanding. (ECOSOC, 1989a) The connection between a ‘proper’ family environment (two parents) and the affectionate and sorrow-free atmosphere required for a desirable childhood, thus, was in the eyes of UNESCO stigmatizing all those children living outside such a family context. The organization argued in favour of replacing the word ‘family’ by ‘different forms of family’. The strongest contestation of the dominant understanding of a child’s ideal social surroundings (the nuclear family), however, only came forward before the beginning of the second reading, at a stage where most central concepts had already been agreed upon among the principal drafters. The Senegalese delegate emerged as the main proponent of a call for greater cultural sensitivity of the Convention at that time, challenging the draft’s emphasis on the nuclear family and the individual child. He suggested reformulating the preamble so that one of the fundamental objectives of the Convention should be to prepare the child to live ‘an individual and collective/community [original emphasis] life in society’ (ECOSOC, 1989d). This proposal was joined by a technical comment of the UN Secretariat which stated that ‘the draft Convention as a whole may not adequately recognize the role of the extended family and community when parental care is not available’ (ECOSOC, 1989j: para. 13). Even though expressing the desire for an accentuation of larger family or community relations, this objection implicitly posited that the community does only play a role as substitute not complementary care. Nevertheless, during the second reading the Chairman ruled, ‘the proposal came too late for consideration’ (Johnson, 1988: 7), whereupon the

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Senegalese delegate warned the Chairman of the ‘effect [the ruling] will have on the rest of the deliberations’ (Johnson, 1988: 7). Non-participants and the issue of the ‘girl child’ Perhaps even more astonishing than the marginalization of discussions of alternative family models or alternative versions of childhood outside the nuclear family context (street children) are the non-decisions related to issues of sexuality and gender that characterized the treaty-making of the CRC. Several of those critically reviewing the coming-into-being of the CRC pointed to the particular absence of the ‘girl child’ as a semantic participant in the debate (Backstrom, 1997; Lim and Roche, 2000; Olsen, 1992; Olsen, 1995; Piper, 2000; Rendel, 2000). Olsen, for instance, observes that while a large part of the debates within the Working Group centred on military service for children (then even more than now perceived to be a ‘boy problem’), the issue of child marriage, disproportionately affecting girl children, was not at all subject to deliberation (Olsen, 1995: 194). During the drafting process, a couple of governmental and NGO proposals tried to make fellow drafters aware of the issue of child marriage, but to no avail. None of the critical voices bemoaning the absence of feminist perspectives, issues pertaining to the girl child and issues related to a child’s sexuality in the debates has so far accounted for the discursive processes through which these items were marginalized. As the analysis of communicative exchange evidences, it was not the case that none of the delegates tried to address questions related to sexual maturity, marriage or the girl child. However, the issue of the girl child was thought by most delegates as sufficiently covered by the non-discrimination clause in Article 2 (which included non-discrimination on the grounds of ‘sex’) and, as a consequence, not requiring more intense debate.35 Gender imbalances in delegates’ discursive practices Gender imbalances were a persistent feature of the drafting – genderneutral or gender-sensitive language was not a characteristic of most proposals and arguments put forward (Price Cohen, 2001). In 1979, when the very title of the Convention was discussed, a number of participants in the Working Group felt that the convention ‘should deal with children as a group and that this aspect ought to be emphasized by using the term “children” throughout the convention, so there would be no discrimination between sexes’ (ECOSOC, 1979a: para. 9). Yet, the original emphasis on the individual child was retained and consistent use of the pronoun ‘him’ in drafters’ argumentations pointed

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towards little sensitivity for gender dimensions. Drafters only agreed upon adopting gender-neutral language after several UN organizations had criticized the lack of gender-sensitivity in the technical reading. Beyond the choice of pronouns, however, discussions concerning more substantial issues related to gender discrimination in child protection occupied an insignificant space in the drafting process. Especially within the framework of Article 2, establishing the principle of nondiscrimination, it appears that there were other forms of discrimination that drafters were more concerned about: those against children born out of wedlock (with ongoing concern by the Federal Republic of Germany, Austria, China) and those based on the beliefs of a child’s parents.36 After analysis of the drafting records, it is more than evident that, from the beginning and in different contexts during the drafting, a few delegates and NGOs did highlight apparent gender dimensions in particular problems or situations. This suggests a strong belief on the part of some delegates that gender discrimination was more fundamental than other grounds for discrimination and that the girl child deserved to be classified among those special groups of children who were in need of even greater protection and affirmation of their rights (such as disabled children, children without parental care, indigenous and refugee children). In this regard, for example, the International Planned Parenthood Federation underlined in 1988 that, particularly in education, ‘girls should not suffer discrimination as a result of marriage, pregnancy and/or exigencies of childcare [and that] the health risks confronting girls demand that emphasis be placed on protecting their rights comparable to the priority historically and universally rewarded the rights of young males’ (ECOSOC, 1988d: 4, 6). In 1987, the governments of the Netherlands and Austria pointed to the fact that discrimination against girls might also be at stake when ‘establishing the age of majority’ (ECOSOC, 1987b). This proposal was met with scepticism by most delegates during the 1988 discussion, who again deferred the ‘girl’ question to the non-discrimination clause of the Convention. The observer for the Netherlands explained that, since the ‘end of childhood’ was not completely fixed in the draft Convention, this might give reason for establishing different standards for boys and girls (ECOSOC, 1988f: para. 221). This reply, however, did not prompt any response and the discussion of the proposal was postponed to the second reading – when it was, in fact, not at all discussed, neither in the discussions on education and access to education nor in the second reading of Article 24 on health.

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Before and during drafting, only a few States Parties and NGOs addressed the omission of gender issues and stronger emphasis on the girl child in a more direct manner. The government of New Zealand, for example, cautioned in its comment on the first Polish proposal that ‘it would be unwise for a convention of this type to be open to criticisms of perpetuating sex-role stereotyping’ (ECOSOC, 1978a: Add. 5). In 1989, the Branch for the Advancement of Women issued a technical comment on draft Article 19 (abuse and neglect) in which it attempted to raise awareness for the high proportion of cases of ‘abuse (physical and sexual) perpetrated by males (father, brother) against girls and young women’ (ECOSOC, 1989j: 25). But it was only in the 1987 discussion of the Working Group on Article 24 (health standards) that an explicit gender issue finally emerged, after the NGO Group had introduced a proposal on harmful traditional practices (NGO Ad Hoc Group, 1985). Among these practices, the issue of female circumcision led to disputes between a whole group of Western states (most importantly the United Kingdom and the United States) on the one hand and Senegal on the other. However, delegates agreed that female circumcision was not the only harmful traditional practice and, thus, refrained from explicitly mentioning this practice. Nevertheless, substantial discussions as in 1987 did not lead to an overall awareness of the specific situation of girl children. Women’s NGOs, the women’s decade and the drafting of the CRC The absence of any in-depth discussion on the special situation of girl children and their need for particular protective measures seems all the more astonishing in view of the fact that several women’s NGOs participated in the drafting. These organizations, however, as well as the NGO Group as a whole, only rarely attempted to point out the gender dimensions of particular issues. One of the few examples is an intervention by the International Federation of Women in Legal Careers, which, in 1984, argued in favour of including a non-discrimination clause in Article 24 (health care) (ECOSOC, 1984b). Yet, Cantwell, spokesperson of the NGO group, contends that none of the women’s groups who formed part of the NGO group was ‘specifically targeting girl children’.37 Santos Pais, Portuguese delegate between 1987 and 1989, argues that the few women’s organizations who were participating perceived the Convention ‘almost as taking away the light from them and the focus they were receiving in the previous years’.38 A further puzzling element in the quest for understanding the marginal position of the girl child is the fact that the drafting of the CRC largely coincided with the International Decade for Women (1975–85) in the course of which CEDAW was adopted by the General Assembly

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(1979). However, analysis of the intertextual links with CEDAW created by the drafters of the Convention evidences that it was perceived to be relevant to mothers and adult women in general, rather than to girls as ‘small women’ or ‘yet-to-be women’. Particularly in the discussion on parental responsibilities, in which the intertextual influence of CEDAW’s provisions was exceptionally strong, this focus on adult women involved in the upbringing of the child that was targeted by the CRC became more than apparent. The principle of equality of men and women in child-rearing was discussed and, in the end, stressed by the CRC, while the idea of equality as a guiding principle of child-rearing was rejected (see above, section on intertextuality).39 On closer inspection, it is possible to conclude that the issue of the ‘girl child’ was generally not seen as part of the larger women’s movement that inspired the UN decade for women – rather boys and girls were seldom differentiated during the drafting and, as a result, particular gender dimensions of the issues ignored. The widespread reference to the child as ‘him’ or even ‘it’ (!) emphasized the non-decisions as regards gender dimensions of many of the issues discussed (see for example: ECOSOC, 1989c; ECOSOC, 1989j). Fottrell suspects that ‘[...] the absence of specific protection and provision for girl children in the CRC is baffling and suggests that such an issue was considered too “controversial” for inclusion in a Convention which sought wide approval’ (Fottrell, 2000: 10). Yet, it appears that other most contentious issues such as freedom of religion or traditional practices harmful to the child were debated during the negotiations. Rather, the evidence given above suggests that it was quite to the contrary: gender did not even emerge as an issue in its own right and when it did, it was taken to be rather unproblematic. Non-participants and the marginalization of alternative concepts of maturity While certain drafters strongly promoted the concept of evolving intellectual maturity, dimensions of biological adulthood rather than a chronological maturity were sometimes addressed but never opened to debate. In the conceptualization phase of the CRC, certain countries’ comments on the possible end of childhood already exposed insecurities regarding the standards by which adulthood should be established. The government of New Zealand, for instance, commented on the first Polish proposal: It seems that it would be very difficult to declare an across-the-board age and that the end of childhood would be related to specific issues (right to leave home, vote, drive a motor cycle, have sexual intercourse

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[emphasis added, A.H.]) which would be covered by specific legislation in each country. (ECOSOC, 1978a: Add. 5) Such insecurities emerged at various points in the debate, but did not incite further deliberations on alternative conceptions of maturity and adulthood. Questions relating to child marriage or adolescent parenthood stand out as those particular issues that were mentioned but not developed by the Working Group. Similar to the semantic participant of the girl child, these items were by no means absent in the debates and emerged at various times and in different contexts – however, most discussions on these items were either quickly terminated (with reference to their cultural delicacy) or individual argumentations were sidelined. Adolescent parenthood, in fact, was one of the issues almost completely ignored by the drafters. In contrast, child marriage initially occupied a rather central position in the basic working text and then completely disappeared from the document. Child marriage and adolescent parenthood When the Polish government had submitted its second proposal for a draft Convention, Article 7 of this text provided for the child’s right to express his or her ‘opinion concerning his own person, and, in particular, marriage [emphasis added, A.H.], choice of occupation, medical treatment, education and recreation’ (ECOSOC, 1979b). The fact that marriage was invoked in the first place and that it was singled out as one of the most important domains for a child’s participation in decision-making demonstrates that the sponsors of the Convention considered child marriage a chief issue. While drafters at the beginning of the deliberations on this article seized on the wording of the draft as regards marriage, the issue was deleted and never re-emerged, as the majority of delegations ‘felt that matters concerning the child in which the States Parties to the Convention would enable him to express his opinion should not be subject to the limits of a list’ (ECOSOC, 1981b: para. 78). During the following years, NGOs were also becoming aware that the ‘question of marriage should be approached’ especially since the Draft UN Rules for the Protection of Juveniles Deprived of their Liberty (adopted by the UN General Assembly on 14 December 1990) included the ‘right to marry’ in their provisions (Cantwell and Rousset, 1987). Yet, with rising pressure to achieve ‘target ‘89’ the issue, which would have constituted a completely new area for deliberation, was not taken up again. This seems all the more surprising in light of the fact

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that the UN had already formulated certain standards concerning the minimum age for marriage in a Convention of 1962. An examination of the drafting process in the Working Group suggests that, especially when addressing questions of maturity and adolescence, certain drafters’ argumentations contained rather awkward references with regard to the connection between marriage and adulthood, that is, alternative concepts of maturity that did not entail a gradual transition towards adulthood but rather an abrupt change in status. When, for instance, the participants discussed issues of material dependence between the child and his or her parents (within the framework of Article 27 on the ‘standard of living’), the delegate of the United Kingdom (joined by the Canadian delegate) contended that the ‘problem’ of material dependence ‘related to the child only up to the age of 16, because in some national legislations, the child could be married at that age’ (ECOSOC, 1987c: para. 120). In the same year, the UK delegate, tried to sensitize his fellow drafters to the ‘fact that in some countries (including his own) young people below the age of 18 might be allowed to marry’ and, together with the Australian delegate, he also raised the ‘problem of sexual majority, which in their countries was fixed at the age of 16’ (ECOSOC, 1987c: para. 86). The ensuing deliberations exhibited an uneasiness of the drafters as regards the relationship between legal marriage of persons falling under the definition of child of the CRC on the one hand and the prohibition of ‘unlawful sexual practices’ on the other. It was felt that ‘the draft Convention could not declare unlawful sexual practices between husband and wife under the age of 18’ (ECOSOC, 1987c: para. 86). Yet, despite these repeated references to the issue of (child) marriage and the concept of majority that it would entail, no further deliberations were made as to an explicit regulation of this issue-area in the convention. Not even when the drafters discussed traditional practices potentially harmful to the child, did they ponder on the questions of forced marriage or early marriage.40 Other elements of an alternative view on maturation and adulthood, such as adolescent parenthood, were completely absent from the drafting process. The only explicit reference to expectant minors was made in a proposal that followed a Latin American meeting in 1988, where the upcoming CRC was discussed. This proposal suggested that ‘States parties shall implement compatible policies for the protection of maternity [...] keeping the mother-child bond intact, avoiding trafficking and fraudulent adoptions’ (ECOSOC, 1989b). An early NGO proposal also attempted to raise awareness of the ‘problems of early

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childbearing’ (ECOSOC, 1984a). In 1988, the International Planned Parenthood Federation issued a request that the Convention should not only diminish infant and child mortality, but also ‘adolescent childbearing’ (ECOSOC, 1988d). Notwithstanding these rare interventions, questions of childbearing, maternity or pregnancy were exclusively placed in a context of mother-child relationship and the necessity to protect both the mother’s and the child’s health. Yet, implicitly this suggested that the possibility of children (up to the age of 18) giving birth and, thus, the protection of a child family under the Convention was not subject to debate. In sum, the issues of children’s and adolescents’ sexual maturity and marriage were rarely touched upon during the debate and, as such, qualified as non-issues. These ‘hot’ topics were either perceived to be genuine problems of developing countries or, generally, seen as too delicate to discuss, obstructing any opening up of the ‘Pandora’s box’ of correlations between physical maturity and legal majority typical for societies adhering to a biological rather than chronological concept of childhood.

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9 The Convention and Beyond – Future Prospects for an Analysis of Norm Change through Discourse

This book has set out to expand the concept and analysis of discourse in International Relations scholarship. It has sought to ascertain the place that sociolinguistic methodologies should occupy within constructivist approaches to international politics. Underlying this study has been the belief that further elaboration on the linguistic, communicative and discursive dimensions of international politics can deliver valuable insights into the intersubjective nature of political action, and the various ways in which stakeholders interacting on an international and transnational level meaningfully develop commonly accepted norms. Exploring the increasingly pivotal roles that language and discourse have come to occupy in constructivist reflections on intersubjective reality and social norms (both constructivism’s ‘middle-ground’ and its edges), the study has strengthened the argument that discourse research is likely to assert its place as a sub-field of constructivist research on international politics and that it will continue to play a vital role in the discipline’s epistemological and methodological debates.

9.1 The value of a discursive practices approach The theoretical reflections on the application of discourse in social science and IR research show that discourse-analytical frameworks and projects are geared towards an understanding of the play of power and exclusion in the making of social reality. As political stakeholders interact and communicate with each other, they strive for social influence over the definition of their particular intersubjective reality. In this respect, a whole branch of discourse-approaches was identified in 235

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Chapter 2 – so-called arguing-approaches – that accentuate the practical side of discourse. According to this approach, discourse is the place where individuals collectively make sense of the world and attempt to convince others of their specific understanding of a problem, an issue or an event. Empirical investigations into the micro-processes of argumentation that induce or hamper the establishment of communally shared meaning allow these approaches to be classified as functional and pragmatic. Discourse is seen as a process of, and a locus for, linguistic interaction. In contrast to this notion of discourse as real-time communication, another branch of discourse thought in IR (structural approaches) conceives of discourse largely as a vaulting structure of knowledge, meaning and social institutions – a structure that has undeniable effects on the ways in which people think, talk and relate to the world and each other. The critical frameworks most of these structural approaches rely upon aspire to exhibit the silent and at the same time dominating ‘discursive formations’ (Foucault, 2002) that foreground and discipline human action, thereby obstructing and excluding certain versions of seeing the world. This exercise in classifying discourse-based thinking in IR scholarship served to support the argument that when it comes to understanding transformation and change, both strands show limitations of their explanatory power. Arguing-approaches focus on agents’ speaking practices and, as such, have difficulties comprehending larger processes of paradigm change and discursive transformation. Structural approaches employ historical analysis that enables the comprehension of paradigm change but cannot account for the processes of social interaction that bring about transformation in the first place. These findings have substantiated the claim that, in order to fully understand how discursive transformation can come about, key aspects of both branches of discourse thinking have to be combined, with regard to the dimensions of power and exclusion they emphasize and to their methodological frameworks. This book has sought to overcome present difficulties in accounting for norm change through discourse by developing a multidimensional concept of discursive power that specifically allows for accommodating the exclusionary dimensions which accompany processes of discourse transformation. Drawing on central insights from the mother-discipline of empirical discourse analysis – sociolinguistics – the study presented here has sought to broaden existing multidimensional power theories as formulated, for example, by Barnett/Duvall, Bachrach/Baratz and

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Lukes, adding a specific linguistic facet to these theories. By reverting to methodological tools conventionally employed in the sociolinguistic field of Critical Discourse Analysis (CDA), the conceptual framework developed in this study sought to merge an analysis of agents’ power in discourse (their opportunities to transform powerful narratives) with the constraining forces of meaning-structures – the power of discourse. CDA also emphasizes the value and importance of institutions in the study of discourse, since it is precisely this incorporation of the institutional setting into analysis that accounts for exclusionary facets of communicative interaction. Studying the power imbalances in the meaningsystems that form the basis of social interaction (global context) as well as those created by the institutional setting (local context) in which communicative interaction takes place, it was argued, helped to accentuate the exclusionary features of linguistic and social action. Following central insights from IR institutionalist theory and CDA, this study has conceptualized institutions as both conventionalized discourse, inasmuch as institutions are frequently defined as social conventions that structure human interaction and give meaning to it, and as proceduralized discourse, responding to definitions of institutions as sites for communicative interaction, policy-, decision- and, ultimately, meaning-making. The latter conceptualization of institution stresses the specific rules regulating discursive interaction between stakeholders. The deliberations on the interplay between power, institutions and discourse finally resulted in a heuristic device – the funnelling model – that sought to capture the different dimensions of power and exclusion which characterize international decision-making processes. The funnelling model also aimed to incorporate a temporal dimension into the study of exclusion in discourse by picturing communicative events as a gradual narrowing of opportunities for participation, argumentation and, ultimately, change. International negotiations – a subset of proceduralized international discourse – provided the opportunity to test the affinities between institutionalized theory and the study of discourse. They offer fertile ground for a critical analysis of power and exclusion largely due to their character as teleological events that aim for decisions, outcomes and, thus, the fixation of meaning. As such, it was argued, the social dynamics of intergovernmental and transnational (i.e. also involving non-state actors) negotiations such as those leading to the adoption of the CRC promised to be a rewarding terrain for the kind of multidimensional power analysis envisaged in this study.

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9.2 The messy dynamics of treaty drafting and their impact on international norm-transformation Certain dimensions of the making of the CRC were particularly conducive to a changing perspective on childhood and the broadening of the child’s rights agenda to include the concept of evolving capacities. First, there were various turning points in the production of the CRC where drafters had excellent opportunities to make use of their power in discourse. One such point was the 1979 Warsaw Seminar on the Rights of the Child that greatly inspired the much-extended second Polish proposal and introduced some of the most revolutionary elements of the CRC, contained, primarily, in Article 7 of the revised proposal. The ideas contained in this article, consequently, were greatly exploited by those drafters who spoke in favour of an understanding of the child as, partly, a social agent. Thus, Poland, willingly or not, had opened perhaps the greatest window of opportunity to infuse the drafting process with novel ideas on the participatory rights of children and create intertextual links to general human rights instruments, like the ICCPR. A second turning point was the early acceptance of 18 years as the upper age limit of childhood – a definition that permitted the introduction of a much broader catalogue of human rights. This unusually precise and, at the same time, unusually broad age span, however, also engendered much of the ambiguous discussions between state and non-state actors since it presented the drafters with a legal grey zone of adolescence that was quite difficult to approach in international law and, as a consequence, engendered numerous interdiscursive claims and fact constructions. Another decisive element was that, in contrast to other countries that ensured continuity in representation, the United States sent various representatives throughout the ten years of the drafting. As the materially strongest actor in the liberal, Western camp, these US delegates did not advocate a unified position as regards the perspective on the evolving capacities of the child and the resulting growing autonomy of the child. While a group of European states and Canada (among them states that are commonly perceived as the ‘do-gooders’ in international law-making, such as Sweden, Norway, Finland and the Netherlands) consistently argued in favour of broadening the child’s rights agenda and enhancing the agency and independence of the child, the United States oscillated between quite radical attempts to confer the civil and political rights of the ICCPR onto children on the one hand and attempts to safeguard the decision-making power of parents and the sanctity of the

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family and family privacy on the other. The Working Group discussion on Article 16 (protection of privacy) epitomizes the friction and ambiguity that children’s individual rights to partial autonomy caused the United States (and other delegates) (Alston, 1993). Thus, analysis reveals that the United States’ lack of a coherent agenda – caused by the changing representatives – presented other Western actors, who espoused a more unified view, with opportunities to introduce their perspectives on the ‘evolving child’. In the study of the CRC negotiations, interdiscursive analysis sought to highlight the various ways in which actors have employed both conventionalized discourses in their discursive practices and the ways in which they connected these meaning-conventions to innovative arguments concerning the identity and personality of the child in international politics. The findings of the analysis evidence that consolidated, traditional images of the vulnerable, mute and innocent child were prevalent throughout the drafting. However, they were continuously disrupted by the introduction of a new, evolutionary understanding of childhood as a phase of intellectual maturation in the course of the negotiations. Interdiscursive links with discourses on gradual emancipation and, particularly, with debates in family law that sought to emancipate the child even within the family context were slowly becoming more forceful and, through a strong coalition between largely ‘Northern’ states and the NGO Group, finally took hold within the Working Group. Tracing back these instances of interdiscursive links and their transformative potential in the drafting, thus, accounted not only for the existence of such new perspectives in the drafting but also allowed to see who argued when and in what context in favour of the rather revolutionary idea of the ‘evolving capacities’ of the child. Following the second Polish proposal, the draft Convention moved towards addressing the normal childhood experience, which was seen as taking place in the family context, rather than primarily addressing those children living in exceptional circumstances, which had previously been the focus in international law. The private family sphere was thus introduced into the meaning-making process, which both shifted and confused the debate. The lack of a strong human rights tradition in the field of child protection, with earlier texts reflecting welfarist, emotional appeals to the whole of humanity to protect and care for children rather than a clear-cut individual rights catalogue, necessitated (a) borrowing from general international human rights legislation that had been formulated since the 1959 Declaration (intertextuality) and (b) in cases where no such references were available, reverting to

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strategies of fact construction, particularly with regard to the concept of evolving capacities. The analysis of intertextuality examined those instances in which actors related to earlier texts that had been formulated in the field of child protection as well as the ways in which they grounded their argumentation in provisions and formulations borrowed from other earlier texts (in human rights legislation, other UN treaties etc.). Here, it became more than evident that, due to the lack of an existing comprehensive human rights catalogue for children, drafters mainly resorted to the two UN Covenants, both in order to support their arguments for a fortification of individual human rights for children as well as to address the delicate (if not impossible) balancing act between the rights of the child on the one hand and the protection of the family as a social unit (ICESCR) on the other. Argumentative strategies of fact construction demonstrated that most of the actors who argued in favour of the concept of evolving capacities – the principal doorstep to an emancipatory perspective – were strongly convinced of the principle as ‘natural’ or ‘general’ and yet unsure about how to couch this concept in appropriate language. All in all, the examination of these three dimensions of discursive action has substantiated how the power of discourse predisposed and influenced the particular meaning-making event under investigation on the one hand and, on the other, was in a position to highlight the potential of actors to exert power in discourse and circumvent meaning-conventions related to the semantic field of childhood. All of these linguistic and social practices, in which the drafters of the CRC linked traditional and novel images of the child with existing human rights legislation and new concepts, took place in a clear-cut institutional framework which, in itself, presented actors with rules that both constrained what could be said and formed the basis for meaningful interaction. Applying the funnelling model to the case study certainly helped to visualize and examine institutional constraints that actors faced during the negotiation series and the ‘disorders of discourse’ produced by the institutional framework. By applying the various exclusionary dimensions relevant to a political decision-making process to the CRC negotiations, this approach sought to show how any decisionmaking is also geared towards meaning-making and ‘closure’ and, as a consequence, towards narrowing down the possibilities for articulation (the metaphor of the funnel). The issue of re-contextualization was addressed as both the strength of institutions’ linguistic codes as well as the opportunity for weaker actors (in this case NGOs) to exert greater influence by adapting to these codes. As a second dimension, analysis

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looked at the asymmetry in dialogue produced by the institutional framework, that is, the differing speaking-positions and speech entitlements that resulted from the institutional setting. Finally, the investigation has focused on the exclusion of semantic participants resulting from both the institutional framework and the social dynamics that developed in the course of the treaty-making process. All of the exclusionary dimensions highlighted by the critical analysis of discursive practices have been linked to the funnelling character of discursive interaction. The analysis has shown the extent to which the procedural framework in the Working Group that elaborated the Convention curtailed certain participants’ speaking rights and how these exclusionary forces were re-enforced by rising time-pressure in the later stages of the drafting. The rules for proceduralized discourse forced certain actors, especially non-state actors, to reconsider their strategies for intervention, to form groups, mainstream their interests and adhere to certain linguistic codes that promised greater resonance. The result of the adaptation to institutional rules was, in the case of NGOs, a double-edged sword: on the one hand they increased their credibility and authority, on the other they had to expunge a threatening ‘outside’ in order not to endanger their position. All of these factors, ultimately, resulted in the sometimes slow, sometimes abrupt expulsion of certain items from the debate – items that, taken seriously, might have challenged the consensus already reached. Even though certain cultural particularities were reflected in the Convention (the Islamic version of adoption – Kafalah – or the extended family), most issues that might have seriously undermined the Eurocentric vision of childhood were pushed aside in the debate. Two elements of the proceduralized discourse analysed above stand out as particularly relevant to the funnelling process and the exclusion of modes of speaking as well as semantic participants: the absence of UNICEF in the earlier stages of drafting and the processes during which the NGO Group streamlined its ideas and adapted to the legalistic framework of the drafting. The NGO Group’s desire to be a successful and collaborative partner in the drafting led to a growing reluctance to promote perspectives that drastically departed from the comprehensive, libertarian spirit of the draft Convention. The strongest NGOs in the NGO Ad Hoc Group were those with an explicit child-related focus. Their understanding of childhood and their strong human rightsbased perspective chimed with libertarian perspectives promoted by several Western proponents of the idea of evolving capacities. NGOgovernment links, such as, most notably, the connection between

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Rädda Barnen Sweden and the Swedish government, reinforced the Northern spirit of the debate. An analysis of the discursive practices and of the interplay between power of discourse and power in discourse demonstrates international treaty-making as, fundamentally, a process of meaning-making characterized by a variety of exclusionary dimensions. It accounts for the often messy social dynamics that produced an influential international text, in this case the 1989 UN Convention on the Rights of the Child. Finally, it exhibits the less than perfect parameters of policy- and decision-making that characterize transnational politics.

9.3 Understanding the transformation of a global childhood discourse More than 20 years have passed since the CRC was adopted by the General Assembly. Since then, a number of NGOs have been lobbying for an individual complaints mechanism in order to put the CRC on equal level with other human rights treaties (see for example: Kindernothilfe, 2009). In the past two decades, the NGO Group for the CRC has continued its work on the Convention and, together with other NGOs working in the field of child protection, has successfully lobbied for inclusion of children’s rights language into global conference declarations and programmes of action (Gerschutz and Karns, 2005: 38–39). The CRC is one of the few human rights treaties that specifically gives NGOs a role in monitoring the implementation of the Convention, stipulating in its Article 45a, that the Committee on the Rights of the Child could invite ‘[...] other competent bodies ... to provide expert advice ... in areas falling within the scope of their respective mandates’. NGOs have taken full advantage of this opportunity, continuously submitting alternative reports to the governmental reports that are reviewed by the Committee on the Rights of the Child (CRIN, 2009). Since it entered into force, numerous appraisals have been made of the CRC: The Convention on the Rights of the Child as a culminating political statement marking the uniting spirit at the end of the Cold War; the Convention as a most comprehensive, most inclusive human rights instrument; the process of drafting as a showcase for openness and cultural sensitivity. All of these arguments – to some extent – apply to the CRC. However, this study has shown that additional dimensions of international politics can be elucidated through discourse analysis: dimensions of change and movement brought about by agents’ discursive practices and the exclusion dimension which shows how

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the seemingly inclusive and democratic spirit of the drafting process is actually a process of exclusion and silencing. As such, an investigation of discursive practices gives us a much more in-depth and accurate picture of a process of meaning-negotiation, a picture that pays attention to the institutional framework in which speaking practice takes place, and the constraints and opportunities that speakers experience within this institutional setting. While many of the discussions of the Working Group and, especially, the CHR certainly mirrored Cold War tensions, tensions between developing and developed countries or bilateral tensions between certain states (e.g. France and Algeria), discursive analysis of the coming-intobeing of many of the CRC’s provisions demonstrates that the lines of friction could not be as easily drawn. This circumstance was reflected in a whole array of conflicting perspectives and insecurities in wording. Differences that could not be directly attributed to ideological disagreements, particularly with regard to the question of the ‘evolving capacities’ of the child, with regard to the triangular relationship between child-parents-State and with regard to the onset and especially end of childhood. Nevertheless, as the second part of the analysis has shown, significant non-decisions, especially towards the end of the drafting, rendered this international document one which still bears a heavy ‘Northern’ mark (in this regard no different from other human rights treaties). Paradoxically, it appears that many of the issues in the drafting that were abandoned due to sensitivity to other cultures on the part of participants from industrialized countries or those that did provoke strong reactions on the part of most drafters (child marriage, girl child, female circumcision) but were excluded from the final text of the Convention were picked up in the 1990 African Charter on the Rights and Welfare of the Child. Over and above that, it has become apparent in the drafting process that certain developing countries’ delegates, first and foremost the Senegalese delegate, demonstrated a willingness to discuss such culturally sensitive issues. Maybe, therefore, one can ask if Western delegates’ dismissal of these items as culturally too sensitive deliberately foreclosed any debates on these ‘Third World’ problems and must be seen as a further sign of the limited reflection of concerns and perspectives from developing regions. The critical re-examination of the discursive event behind the formulation of the most comprehensive human rights document to date also demonstrated that some of the exclusionary dimensions that characterized the drafting of the CRC apply to many treaty-making processes in the context of the United Nations. Developing countries

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are under-equipped financially and limited in terms of personnel. They have difficulty with sending qualified representatives to all decisionmaking processes. The geographical position of UN headquarters makes it an expensive undertaking for poorer countries to finance travel or permanent staff at the UN. Thus, the fact that one delegate from the developing countries often has to cover a whole array of different events already excludes them from the possibility of actively engaging in all of these discussions (LeBlanc, 1995: 11). Yet, as the analysis has shown, the material disadvantages that developing countries’ delegates faced were coupled with additional exclusionary dimensions that were an outcome of the social and linguistic dynamics of the drafting process rather than owing to financial restraints. This multidimensional analysis of power and exclusion has exhibited the various levels of contestation and silencing that enabled the final adoption of a Convention on the Rights of the Child by the General Assembly. The unanimity with which the CRC was adopted and its quick and widespread ratification are well known. And yet, the careful study of its drafting history shows how some of the core principles of the CRC represent in themselves tensions and inconsistencies that fundamentally confuse – now as much as then – the legal and societal deliberations on the concept of ‘children’s rights’ and the identity of the child in international politics.

9.4 Contesting the UN Convention on the Rights of the Child After the adoption of the CRC in 1991, it took seven years for UNICEF to officially adopt a rights-based approach as one of its core principles.1 This change was reflected in the choice of a new emblem: where before the child was depicted as a small child raising his or her arms and being protected by an embracing adult, the new emblem showed a child that was lifted up by an adult person. The child was literally ‘elevated’ by this new emblem – corresponding to the new approach that emphasized the individual child. In 2003, UNICEF dedicated its whole State of the World’s Children report to the issue of child participation, emphasizing that ‘promoting meaningful and quality participation of children and adolescents is essential to ensuring their growth and development’ (UNICEF, 2003: 9). However, both the drafting of the CRC as well as debates within UNICEF after the adoption of the CRC show the considerable reluctance of the organization to fully subscribe to the idea of children’s human rights as enshrined in the Convention.

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The forces that have contested the image of the child and the understanding of childhood promoted by the CRC cannot be located within UNICEF alone; they also become obvious when looking at the proceedings of the various regional conferences that accompanied the drafting process (especially between 1988 and 1990) in developing regions of the world. Examining the documentation of regional meetings in Africa that coincided with and accompanied the drafting of the Convention, it seems justified to argue that, with a stronger interpretive community of African states participating, the understanding of childhood and the rights of the child might have been radically different from the understandings promoted in the Working Group. The final document of the Inter-Parliamentary Conference on Policies, Programmes and Legislation for Children in Africa that took place in 1982, for instance, summarizes: It is difficult, in Africa, to consider children as a clearly differentiated age group. Where there is such differentiation, it varies according to the society concerned. In Africa south of the Sahara, for instance, the group of young people or adolescents, comprises all those who have passed the traditional age of initiation, but have not yet founded a family. The term ‘children’ according to international organizations means the population from 0 to 15 years of age (after the fifteenth birthday).2 Regional conferences where the upcoming CRC was explained and promoted also exhibit drastically diverging images of the child (ANPPCAN, 1988; UNICEF, 1990). Not surprisingly, the documents from these events display a strong influence of the semantic fields of innocence and the immanent child. An economistic vocabulary, frequently depicting children as the most valuable resource of the African nations, was extensively employed (Baquer Namazi, 1990: 5). The more emancipatory elements and, more generally, the image of the child as a social agent are, however, almost completely absent in the various speeches that are reproduced in the documentation. It is here that alternative understandings of childhood emerged which pointed to strong cultural differences in the perception and ‘valuing’ of children: As deeply religious people, Africans believe that all children belong firstly to God and secondly to the community: Thus, there is little thought as to how children are to be properly reared once conceived. [...] Children were not only symbols of wealth, they represented

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insurance for the future of their aging parents. (Chris Nwachukwe Okeke, 1988: 15–16) In most of the lectures given by specialists of African law during a conference in Nairobi in 1988, an emphasis was placed on child welfare, protection and development. Many of the critical comments on the CRC applied to the particular status of children in African societies, differences in terminology (minor, juvenile, child) and, most importantly, relationships of give-and-take duties between parents and children to materially support each other. Concepts of adulthood competing with legal maturity were mentioned: ‘[...] in many African societies the onset of puberty is the transition to adulthood’ (Takyiwaa Manuh, 1988: 57). An emphasis on mutual responsibilities between the adult community and children rather than an understanding of individual rights of the child as legal claims against parents, the community and society as a whole prevailed (Rwezaura, 1998a). These had not, or only very marginally, appeared during the drafting of the CRC.3 The various diverging perspectives on the rights and duties of the child and on the particular realities of children in Africa were laid down in a specific African Charter on the Rights and Welfare of the Child, which, at first sight, seems to be almost a verbatim reproduction of the CRC (OAU, 1990). At second sight, however, it appears that some of its provisions are, indeed, more clearly formulated, while others constitute a decisive departure from the understanding of childhood of the CRC. The Charter contains an extensive Article 31 which enumerates the responsibilities of the child, most importantly as ‘the duty to work for the cohesion of the family, to respect his parents, superiors and elders at all times, and to assist them in case of need’ (OAU, 1990: Article 31(a)). The above-mentioned examples illustrate both the novelty as well as the contested nature of certain of the CRC’s provisions and, again, underline the assumption that the Convention carries a specific image of the child and vision of childhood, rather than trans-cultural principles easily applicable to all legal systems and societies around the world. Those provisions of the CRC that address broader obligations by parents, the community and society at large in particular have given substantial food for thought to all those striving to the make the children’s rights of the CRC a living reality. Opposition to the CRC, however, has not only emerged in cultural spheres outside the US-European context. To date, the United States has not ratified the CRC. Some members of the US Senate continue to obstruct ratification by arguing

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that the CRC’s notion of child’s rights is too liberal and infringing upon the rights of parents (for arguments supporting this opinion see: Hafen and Hafen, 1996; Klicka, 2007).4 Right wing, conservative and Christian fundamentalist attacks against the CRC are ‘extremely vocal and effective in generating grassroots opposition to the Convention’ in the United States (Limber and Flekkøy, 1995; Biblebelievers, 2009; Concerned Christian Americans, 2009). Yet, there are also left-wing voices in the United States, who criticize the CRC for being too weak to protect critical rights of the child (Limber and Flekkøy, 1995: 10). Far-reaching reservations have also been formulated by most Muslim countries (Würth, 2003) and even certain European countries (such as the Federal Republic of Germany) have placed wide-ranging reservations on the CRC with regard to the special status of refugee children. Considering that the United States and Germany have been among the most active members of the open-ended Working Group demonstrates that strong involvement in treaty-making and the desire to advance international human rights legislation often meets deep-seated political and societal resistance at the domestic level. Over the years, the new discursive ecology of the CRC which has come to be part and parcel of a global vision for the protection and promotion of children’s rights has provoked resistance and contestation on numerous levels – not least the level of civil society. Those who have reviewed the progress of the CRC’s implementation during the past 20 years (Fottrell, 2000; Save the Children Sweden and UNICEF Regional Office for South Asia, 2000; Woll, 2000) have noted a particularly weak support at the grass-roots level. Even in cases where governments have undertaken serious efforts to implement the provisions of the CRC in their country’s legislations, certain of the CRC’s clauses seem to ‘encounter a powerful societal resistance’ (Harris-Short, 2003: 177).5 This applies particularly to the participatory dimension of the child’s rights catalogue and Article 12 on the respect for the child’s views, which, in all parts of the world, industrialized and developed, is more lip service than widespread practice.

9.5 Alternative readings of the CRC drafting It has been stressed from the start, that the discursive practices approach suggested in this study does not represent a completely new route in research on international decision-making processes. Rather, it intends to complement existing approaches to institutionalized social interaction by focusing on the multidimensional nature of discursive power

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in intersubjective communication and the facets of exclusion that the funnelling model can help to elucidate. As such, the overall rationale behind such a critical discourse analysis was to show the benefits of a combination of diachronic, historical analysis with synchronic analysis of a specific instance of communicative interaction in the course of which a new understanding of childhood and children’s rights emerged. Examination of intertextuality, for example, complements an institutionalist analysis that looks at the influence of forceful legal norms on the formulation of new documents. The impact of Cold War tensions on the work and efficacy of the UN in general during the period in which the CRC was drafted (Röling, 1979) has come to the fore at several points in the actual analysis of discursive practices in Chapter 6. Naturally, the tensions were also reflected in the drafting process, most strongly in the CHR. Some discussions in the Working Group give reason to assume that the power of discourse, in fact, was the discourse of the materially powerful and that discursive clashes primarily occurred between the United States and the USSR (plus both parties’ allies). Nonetheless, at various points the analysis has contradicted an easy realist explanation to the outcome of the drafting. Above all, the geographical origin of the sponsor of the Convention (Poland), its previous efforts in international child protection and its rather innovative second proposal obstruct an explanation of the outcome as merely a result of the ‘triumph’ of Western, liberal values in 1989. If one ignores the fact that an international treaty-making process like the drafting of the CRC would have been classified as ‘softest’ politics from a traditional realist perspective on international politics and, as such, perhaps all too easily dismissed, a realist interpretation focusing on material power asymmetries between actors could have partly accounted for the process and outcome of the CRC drafting, especially when looking at the speaking position of actors and the asymmetry in dialogue. The US delegation was clearly among the most active and the most uncompromising in many cases. Yet, its ambiguous position as regards excessive liberal rights for children on the one hand and the protection of family sanctity on the other revealed that it did not have a clear line of argumentation. A realist gaze would also have considerable difficulties in accounting for the strong participation of NGOs (as materially quite weak actors) and the strong influence of smaller states (Scandinavian states) on the discursive shift with regard to the evolving child perspective. Asymmetries that are favoured by the institutional framework, by interpretive communities (between state and non-state

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actors) or by knowledge deficits could not be covered in a realist interpretation. Most importantly, though, the analysis has shown that even those actors who disposed of greater potential to coerce were by no means consistently advancing one clear-cut position as regards the concept of ‘evolving capacities’ and the liberal (civil and political) rights for children. It was mainly the Scandinavian countries and Canada who advanced the most libertarian ideas of children’s rights, while the United States and other Western countries such as Germany, France or the United Kingdom were more ambivalent regarding the tension between adults’/parents’ rights and children’s rights. A discourse analysis of the drafting process, thus, is in a position to demonstrate the contradictions and tensions in individual agents’ discursive practices – it helps to contextualize the analysis of power, to demonstrate how materially powerful actors depended on already existing meaning-structures and to understand how and when actors were successfully influencing the drafting, and when they were not. The book has also supported a call by Müller and others for a closer inspection of the social dynamics and argumentative processes that characterize international negotiations (Müller, 1994; Zangl and Zürn, 1996). Müller’s argument that such meticulous inspection is particularly needed in cases where actors attempt to create commonly shared values supports the selection of particular dimensions of the CRCdrafting for this study (Müller, 1994: 36). The debates surrounding the definition of a child, his or her individuality and partial protection from parental and State authority clearly represent debates over core values as regards the place of the child in the family and society at large. These debates have also exhibited the uncertainty and uneasiness with which many of the drafters encountered a new children’s rights agenda. Investigating the social dynamics and discursive practices that aimed at resolving this uncertainty and dissipating contradictions can thus contribute to a fuller understanding of the ‘pathologies’ of decision-making processes. Müller’s assumption that the outcomes of negotiations can never be fully understood by simply looking at the initial distribution of interests and capabilities between actors has been strongly confirmed by this particular case where the originally small concern for a children’s rights document eventually resulted in a most comprehensive human rights document and where a communist government opened the floodgates for liberal rights for children. As such, the critical analysis of power and exclusion in the discursive practices that created the CRC has also complemented rather than replaced conventional negotiation analysis, adding a critical focus on

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the interplay between common sense, transformation and exclusion. It has been grounded in the argument that all negotiation processes and all processes of decision-making are characterized by exclusionary dimensions and that every common sense rests upon the silencing of a ‘threatening outside’. The funnelling character of most of these communicative events contributes to the gradual or abrupt expulsion of issues and opinions. Many of the social dynamics that have been described in this study might be considered intrinsic to negotiations between state and non-state actors. Yet, analysis did not envisage revealing that negotiations are characterized by power asymmetries, time pressure and often very strict rules for interaction, decision-making and closure of the debate (in the case of the CRC most visible during the second reading). It rather addressed the question of how these dynamics of power and exclusion made the CRC such a comprehensive and innovative document – a document that is highly constitutive of international concern and action on behalf of children, their protection and their rights.

9.6

Thinking ahead ...

At various points in the writing of this book, it was tempting to make more general and broader inferences about international treaty-making processes and negotiations, particularly with regard to the role of nongovernmental organizations in agenda- and standard-setting and with regard to the asymmetries in dialogue that result partly from social dynamics, partly from the institutional framework in which speaking practice takes place. Yet, like many of the absent or mute participants in the drafting of the CRC, the author lacked time, financial means and staff to academically ‘participate’ in more than one debate and to apply the analytical framework to more than one case. The theoretical argumentation followed when researching the case study called for an in-depth and systematic study of communicative events, agents’ discursive practices and the institutional parameters for discussion. The often time-consuming process of gathering data that, due to its age, was not available electronically (nor systematically), and archive-based work made this case study a laborious but also a thrilling case. Thus, choosing more than one case study would have meant to fall short of the methodological standards advocated in these pages. Even though a particular class of international encounters – negotiations – was chosen for analysis, this was not an attempt to develop an explanatory framework reserved exclusively for international negotiations. That said, as shown above, negotiations are particularly

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rewarding for a critical discourse analysis of the kind suggested in this book. Their often small and clear-cut institutional setting makes it easier to trace the effects of the institutional environment (e.g. standard operating procedures) on communicative action and to identify critical agents in communication. Furthermore, their goal-oriented character contributes to exclusionary practices and discursive constraints and, as such, strengthens moments of discursive power. However, in principle, the funnelling model as a heuristic device for the study of discourse should be applicable to any process of communicative interaction that can be described, most generally, as a teleological process, that is, a communicative process that is geared towards collective decisions or towards the creation of a collective understanding of reality. Ideally, more investigations into the micro-processes of communicative interaction in international politics, into the power of discourse and the power in discourse that sustain and transform international norms and social conventions will be conducted: investigations that attempt to apply a similar framework and methodology onto other case studies or that critically review and, possibly, reject the approach developed in this study. To this end, the thin edges between critical discourse analysts, coming from a sociolinguistic tradition, and international politics deserve greater attention and bear tremendous potential for cross-fertilization. Muntigl, Weiss and Wodak’s book on European Union discourses on unemployment (Muntigl et al., 2000), for example, testifies to the vast overlapping terrain between International Relations scholarship and sociolinguistics. Studying policy-making processes through the discursive lens, Muntigl et al. claim, explains processes of organizational change. The methodological tools of re-contextualization, fact-making and intertextuality in these policy-making processes are, once again, central to the analysis of policy-making. Defined as a process influenced by different ideologies, Muntigl et al. presuppose that the outcomes of policy-making events contribute to the ‘discursive construction’ of a particular problem – in this case unemployment – and, accordingly, are highly constitutive of social reality. Even in the event that other IR scholars might not be convinced of the added-value of sociolinguistics for international political studies, I think that theoretical deliberations and analytical exercises guided by the concept of discourse will anything but disappear from the IR agenda. What is more, the prominence of discourse seems to suggest that the academic interest in language, communication and meaning is likely to expand and, as such, will create room for further cross- disciplinary

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enterprises. The academic disciplines of psychology, media studies or literature studies are probable candidates for such undertakings. With regard to the empirical areas this study has addressed, the current interest in how NGOs contribute to agenda- and standard-setting at the international level should result in more systematic conclusions about NGO participation in international governance structures (among many others: Albin, 1999; Arts, 2001; Betsill and Corell, 2001; Breen, 2003; Brühl, 2003; Burroughs and Cabasso, 1999; Joachim, 2003; Martens, 2005; Short, 1999). Of particular interest here is the question of how international NGOs respond to the highly state-dominated institutional frameworks within which they strive to promote their ideas and opinions as well as the ‘fates’ of others (Hahn and Holzscheiter, 2005; Holzscheiter, 2005; Sikkink, 2005; Risse, 2002b: 264). These examinations might be part of the current second wave of research on NGOs – research that gradually comes to acknowledge that the NGO world is by no means devoid of power struggles over moral authority and public acceptance (Keohane, 2005; Nelson, 2002). As such, the critical inquiry into how NGOs have contributed to the drafting of the CRC (as one of the earliest empirical examples) already matches this new and maybe less benign interest in the transnational dimensions of NGO work. Finally, there is great scope for more research into the international politics of childhood and children’s rights – an empirical area that, so far, has escaped the serious attention of IR scholars. Even though some areas within the field of child protection have been addressed in empirical studies,6 more general inquiries into the identity and status of the child in international politics are missing from the picture. Political stakeholders are frequently accused of valuing children only during election campaigns, when they can use them as trophies during photo shoots in order to elicit public sentiment. For the rest of the time, they only pay lip service to greater protection and visibility of children, nationally and internationally. IR academia seems to have treated the issue, so far, as lowest politics, abundantly reflecting on other special groups in international human rights legislation, particularly the rights of women, refugees or ethnic minorities, but not children. Yet, the wealth of issues of concern in International Relations research that implicitly or explicitly involve children – such as armed conflict, globalization and labour regulations, migration and the issue of unaccompanied minors, or health (particularly HIV/AIDS) – should give reason to think that children deserve a higher priority than they currently enjoy in IR research.

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Notes 1

Introduction

1. ‘Local’ and ‘global’ do not refer to geographical positions but rather to the breadth of the context – these terms are widely used in sociolinguistic discourse-analytical frameworks. 2. Institutions in their formal dimension are those, ‘with a street address’ (Risse, 2002a: 604), that is, intrastate, non-state and supranational organizations, negotiation series taking place in specific institutional frameworks, world conferences and so on. 3. (Fairclough, 1992; Fairclough, 2001a; Fairclough, 2001b; Fairclough and Wodak, 1997). 4. (Weiss and Wodak, 2002; Wodak, 1989; Wodak, 1996; Wodak, 1998; Wodak, 2001a; Wodak, 2001b; Wodak and Meyer, 2001). 5. There is only one publication that has explicitly dealt with the ‘linguistic facets’ of the Convention on the Rights of the Child. The book chapter by Price Cohen, however, interprets certain core concepts and articles of the CRC with regard to their legal applicability rather than in terms of the ‘meaning’ of childhood they transport (Price Cohen, 1990a). The ‘making-of’ of the CRC has to date not been subjected to a discourse analytical framework.

2 Power and exclusion in discourse approaches to international relations 1. For the theory of communicative action see (Habermas, 1983; Habermas, 1984; Habermas, 1992; Habermas, 1994; Habermas, 1999a; Habermas, 2001). 2. For the most popular writings on Critical Discourse Analysis see (Fairclough, 1992; Fairclough, 2001a; Fairclough, 2001b; Fairclough and Wodak, 1997; Jäger, 2001a; van Dijk, 1997a; van Dijk, 1997b; van Dijk, 2001; van Dijk, 2008; Weiss and Wodak, 2002; Wodak, 1996; Wodak, 2001a; Wodak, 2001b; Wodak, 2009; Wodak and Chilton, 2005; Wodak and Meyer, 2001). 3. One of the most well-known theorists of the role of dialogue and conflict in communication is the Russian Marxist Mikhail Bakhtin, see (Bakhtin, 1981). 4. (Banchoff, 1997; Banchoff, 1999a; Christiansen et al., 1999; Crawford, 2002; Larsen, 1999; Luoma-aho, 2004; Marcussen et al., 1999; Risse et al., 1999a; Rosamond, 1999; Waever, 1998; Weldes and Saco, 1996). 5. (Campbell, 1993; Campbell, 1998; Chilton, 1996; Fierke, 1996). 6. (Ashley and Walker, 1990; Bartelson, 1995; Biersteker and Weber, 1996; Walker, 1993; Walker, 2002). 7. (Fuchs, 2002; Kratochwil, 2002; Rosamond, 1999). 8. (Brysk, 2002; Epstein, 2008; Finnemore and Sikkink, 1998; Khagram et al., 2002; Risse et al., 1999b). 253

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254

Notes

9. See most recently (Nanz and Steffek, 2004a; Nanz and Steffek, 2004b; Steffek, 2000; Steffek, 2003). 10. For an insightful critique of the analytical separation between ‘arguing and bargaining’ see (Holzinger, 2001a; Holzinger, 2001b). 11. See (Risse, 2000: 2). This also allows classifying arguing-approaches as ‘thin constructivism’. 12. (Ashley, 1987; Ashley and Walker, 1990; Der Derian, 1987; Walker, 1989; Walker, 1993; Walker, 1994). 13. (Bourdieu, 1990; Bourdieu, 1993; Cox, 1993; Laclau, 1981; Laclau, 1996; Laclau and Mouffe, 2000; Laclau and Mouffe, 2001).

3

Discursive transformation and the role of institutions

1. A term commonly associated with the writings of Gramsci whose political theory included deliberations on the role of ‘organic crisis’ in political and social transformations; see particularly excerpts of Gramsci’s Prison Notebooks in part II, chapter VI.12 on ‘Observations on Certain Aspects of the Structure of Political Parties in Periods of Organic Crisis’; in (Forgacs, 1988). 2. Weldes and Saco, for instance, in their analysis of the ‘Cuban Problem’ before and after the end of the Cold War only look at the authoritative speech-acts of those actors that are already in the position to make their speech-acts dominant in world politics (Castro, Johnson, McNamara) (Weldes and Saco, 1996: 374). In the end, their discourse analysis amounts to a realist account of whose ‘might makes reality’. 3. See also (Campbell, 1998; Pellizzoni, 2001; Walker, 1993). 4. See also a Millennium special issue on ‘Facets of Power in International Politics’, Millennium 33: 3 (2005). 5. This notion of power commonly goes back to Weber’s well-known theory of power: ‘Power is the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance, regardless of the basis on which this probability rests’ (Weber, 1947: 152). 6. On Lukes’ multidimensional notion of power see also (Kratochwil and Ruggie, 1986: 123). 7. Risse even claims that there are as many definitions of institutions as there are theoretical perspectives (Risse, 2002a: 604). 8. For one of the most influential articles on institutionalism in IR see (Martin and Simmons, 1998). 9. By nature of the more and more frequent participation of non-governmental organizations in these negotiations – organizations that operate across national borders – these negotiations can also be defined as transnational meaning-making events. 10. The term Lebenswelt, which denotes an intersubjectively shared reality, is commonly associated with the writings of Jürgen Habermas (Habermas, 1999b: 32). 11. In fact, one of the most fundamental criticisms the advocates of the theory of non-decisions saw themselves confronted with was the seemingly

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Notes 255 unmanageable task of operationalizing these non-decisions, since identifying absence or silence seems to be an utterly problematic academic undertaking. 12. See fn. 2, Chapter 2. 13. They also tend to specify in their publications that they are written for students and researchers with very little (or none) linguistic background (see: Fairclough, 2003: 1). 14. Bracketing denotes the methodological ‘move’ to break down a social process of mutual constitution between agents and structures into successive time periods and to examine the co-constitutive relationship between the various temporal sequences, that is, how does actors’ speaking practice influence the social structure and vice versa (Archer, 1985; Bieler and Morton, 2001: 9–10).

4

Global childhood – an essentially uncontested concept?

1. United Nations Convention on the Rights of the Child, General Assembly Resolution 44/25, 20 November 1989, Article 37(2). 2. Roper vs Simmons, 543 U. S. 551 (2005), quoted in (Death Penalty Information Centre, 2009). 3. This makes it even harder to defend as a case for a female researcher who has to confront frequent side-remarks on how this seems to be a ‘typical’ topic to choose for a woman studying International Relations. 4. An item that, nevertheless, has attracted some scholarly interest in recent years is the strong influence that non-governmental organizations have had on the negotiations to the UN CRC (see for instance: Schmitz and Sikkink, 2002: 525). 5. Only the United States and Somalia have not ratified the treaty. 6. For accounts of this discursive change see (Alston et al., 1995; Bennett, 1987; Cantwell, 1992b; Detrick, 1992; Fottrell, 2000; Freeman, 1996; Freeman and Veerman, 1992; Hafen and Hafen, 1996; Heinze, 2000; Longford, 1996; Rwezaura, 1998a; Veerman, 1994; Verhellen, 1994). 7. For a discussion of how rights-based approaches and a focus on child participation have influenced some of the largest NGOs in the development sector see (Child Rights Information Network, 2005). 8. Optional protocol on the involvement of children in armed conflict, adopted by General Assembly resolution 54/263 of 25 May 2000, entered into force on 12 February 2002; Optional protocol on the sale of children, child prostitution and child pornography, adopted by General Assembly resolution 54/263 of 25 May 2000, entered into force on 18 January 2002. 9. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, opened for signature on 3 December 1997, entered into force on 1 March 1999. 10. Predominantly Defense for Children International, Raedda Barnen Sweden, Save the Children Alliance UK, Save the Children US, Bernard van Leer Foundation, the International Catholic Child Bureau, Plan International, ECPAT, World Vision, Terre des Hommes.

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256

Notes

11. The impact of the NGO Group on the outcome of the negotiations has been prolonged until the present day through the NGO Group for the CRC. 12. Examples for research institutes with a strong focus on the CRC are the London-based Child’s Rights Information Network (CRIN) or the Childhood Research and Policy Centre (CRPC), Institute of Education, University of London. For a recent discussion of how four of the largest international organizations in the field of child protection (Plan, UNICEF, CARE and Save the Children) have sought to restructure their work applying a rights-based approach (RBA) to their programmes see (CRIN, 2005). It becomes clear in these publications that the adoption of a RBA is still a challenging enterprise for all of these organizations. 13. I am acutely aware that using the term ‘Western’ entails a particularly essentializing enterprise, artificially creating cultural antagonism. However, since most of the authors cited here use the term Western when referring to those childhood concepts that emerged in the modern, industrialized democracies of Western Europe and Northern America, this term has been adopted here. 14. For an in-depth discussion of the concept of ‘autonomous identity’ in occidental and oriental cultures see (Oerter and Oerter, 1995). 15. The concept of ethnomethodology goes back to Harold Garfinkel, who was interested in the fact that persons use ‘shared methods of practical reasoning (“ethno-method”) to build a shared sense of their common context of action, and of the social world more generally’ (Heritage, 2001: 49, 50). 16. Interviews with (Florence Bruce, 2004; Marta Santos Pais, 2004; Nigel Cantwell, 2003a; Nigel Cantwell, 2003b). 17. See the following accounts of the drafting (Bennett, 1987; Cantwell, 1990; Cantwell, 1992a; Cantwell, 1992b; Hammarberg, 1990; Longford, 1996; Lopatka, 1992; Lopatka, 1996; Miljeteig-Olssen, 1990; Price Cohen, 1985; Price Cohen, 1990a; Price Cohen, 1990b; Price Cohen, 1990c; Price Cohen, 1996; Price Cohen, 1997). 18. For a critical discussion of this assumption see (Chambers, 2004: 2). 19. An expression used by Verhellen: ‘This process is called the sociogenesis of the age group of children: the fact that social changes led to children and adults being regarded as separate groups’ (Verhellen, 1997: 14).

5 Discourses of childhood – the ‘communicative ecology’ of the child 1. The notion of ‘discursive ecology’ follows a terminology employed by Roberts and Srikant, who claim that the discourse researcher has to become familiar with the ‘communicative ecology’ – that is the various sub- discourses and different semantic fields – of the issue-area under scrutiny through the study of context (Roberts and Srikant, 1999: 391). 2. Other seminal publications include Cunningham (1995), Zelizer (1985), Pollock (1983) and Steedman (1994). 3. Ariès (1914–1984) was one of the most well-known critical historians in France in the second half of the twentieth century. His historical account of

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Notes 257

4. 5.

6.

7.

8.

9. 10.

11. 12.

13.

14.

15. 16.

17. 18.

childhood covers the time period from roughly the sixteenth to the twentieth century. De Mause (1931–) is an American historian and director of The Institute of Psychohistory in New York. His edited historiography of childhood starts in fourteenth-century Italy and finishes with the early twentieth century. Predictably, this book was also among the few ‘education bibles’ of the 1968 movement. See (Boyden, 1997; Burr, 2002; Cunningham, 1995; Dekker, 2000; Depaepe, 1997; Freeman, 1997; Freeman and Veerman, 1992; Hodgson, 1992; James and James, 2001; James and Prout, 1997a; Nieuwenhuys, 1998; Qvortrup, 1997a; Stainton Rogers and Stainton Rogers, 1992; Steiner and Alston, 2000: 511–538; Veerman, 1994). Marshall states that in 1920, at its very first session, the General Assembly of the League of Nations ‘was asked to make child welfare for victims of war one of its major concerns’ (Marshall, 1999: 106). These stages begin instantly after birth with sensory-motor intelligence, followed by pre-conceptual thought, intuitive thought, resulting in a ‘normal’ person in formal operations (cf. Jenks, 2001: 30). For rare examples see (Balagopalan, 2002; Hollos, 2002; Honwana and De Boeck, 2005; Hunt, 1993; Kabeberi-Macharia, 1998; Levine et al., 1994; Ncube, 1998a; Ncube, 1998b; Neary, 2002; Rwezaura, 1998a; Rwezaura, 1998b; Sall, 2002). Expression used by Mnookin (Mnookin, 1978) and seized by van Bueren (van Bueren, 1998). Garinger reports that the National Clearinghouse on Child Abuse and Neglect in 1974 reported approximately 200,000 cases (Garinger, 1977: 33). Gillick vs West Norfolk and Wisbech Area Health Authority, [1986] AC 112, see (Freeman, 1997: 19). The first article referring to the rights of children was, in fact, published in 1852: ‘The Rights of Children’, Knickerbocker, No. 36 (1852), p. 432; quoted in (Freeman, 1997: 84). This has also been confirmed in interviews with child’s rights NGO activists who participated in the drafting of the CRC; interviews with Florence Bruce (ICCB) and Nigel Cantwell (DCI). For comprehensive discussions of international documents relating to children see (Bennett, 1987; Rosenblatt, 2000; van Bueren, 1993; van Bueren, 1998). For children’s rights in private international law see (Dyer, 1991). This all the more so since the book does not envisage a critical discussion of the legal implications of the CRC. The nineteenth century saw the slow emergence of the child as a legal personality. As early as June 1852, an article was published titled ‘The Rights of Children’ (Slogvolk, 1852). The article is mentioned both in (Freeman, 1997: 84, fn.5) and (Hodgson, 1992: 256). (ILO, 1919), entered into force on 13 June 1921. International Agreement for the Suppression of the White Slave Traffic, signed in Paris on 18 May 1904, amended by the Protocol signed at Lake Success, New York, 4 May 1949.

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258

Notes

19. For an overview of the contemporary status of the child in international humanitarian law see (Kuper, 2005). 20. See Article 77 on ‘protection of children’ contained in Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims in Armed Conflict (Protocol 1), adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. 21. 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons that May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects; entered into force in 1983. 22. Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect and Understanding between Peoples, proclaimed by General Assembly resolution 2037 (XX) of 7 December 1965. 23. UN Doc A/RES/1680(XVI), entered into force in 1964. 24. Ibid. 25. See (Rosenblatt, 2000: 61). 26. For an excellent account of the coming-into-being of the League of Nations Declaration of Children’s Rights and related activities of the Welfare Committee of the League of Nations see (Marshall, 1999). 27. For an excellent in-depth study of the drafting of the 1959 Declaration on the Rights of the Child see (Marshall, 1998). 28. Among legal experts there is an ongoing debate considering this issue of non-discrimination clauses and the omission of age (see for example: Campbell, 1995; Flekkøy, 1993). 29. Declaration on the Rights and Welfare of the African Child (AHG/ST.4 Rev.l) adopted by the Assembly of Heads of State and Government of the Organization of African Unity, at its Sixteenth Ordinary Session in Monrovia, Liberia from 17 to 20 July 1979. 30. In 1990, the same year in which the CRC entered into force, the OAU adopted the African Charter on the Rights and Welfare of the Child. As shall be seen later, this document was basically a reproduction of the CRC with a few notable re-arrangements of articles and a few but decisive specificities. 31. Since the author of this book is not acquainted with all legal provisions affecting children, she relies on Rosenblatt’s argument here. 32. As compared, for instance, with CEDAW, which does not refer to the rights of women in its title. 33. Gillick vs West Norfolk and Wisbech Area Health Authority, [1986] AC 112, quoted in (Freeman, 1997: 19). 34. For a discussion of these and other most influential court decisions speaking in favour of the interests of the child see first (Mnookin, 1978), but also (Eekelaar, 1986; Fionda, 2001; Freeman, 1983).

6 Origins of the drafting of the UN Convention on the Rights of the Child 1. The ICCPR, for instance, took 10 years to obtain the 35 ratifications necessary to enter into force (adopted in 1966, entered into force 1976).

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Notes 259 2. This was also the case with CEDAW and the Convention against Torture. 3. The Third Committee of the General Assembly is concerned with questions of social, humanitarian and cultural nature. 4. In this regard, the CRC’s coming-into-being has also been very different from its predecessor, the 1959 Declaration, which was adopted only after the Commission for Social Affairs, the Commission on Human Rights and the Third Committee of the GA had had lengthy debates on the document and modified the Declaration (cf. Dorsch, 1994: 73). 5. For an excellent discussion of the difficulties faced by the Committee on the Rights of the Child with regard to cultural argumentations invoked by reporting signatories of the Convention see (Harris-Short, 2003). 6. See for instance, a 2004 Conference organized by Defence for Children International and hosted by the Christian Children’s Fund on ‘The Rights Based Approach to International Cooperation: A Child Rights Perspective’, 22–23 November 2004, Geneva, Switzerland. 7. Price Cohen, however, preferred a different partition for her analytical aims. 8. See Figure 4.1 in Chapter 4 that summarizes the proceedings of analysis. 9. On Article 16 (protection of privacy) see for instance (Alston, 1993; Montgomery, 2001: 84); on ‘best interests of the child’-clause see (Alston and Gilmour-Walsh, 1996; Breen, 2002); on Article 12 the cornerstone of the ‘participation’-dimension of the CRC see (Kjorholt, 2002; MiljeteigOlssen, 1990; Rwezaura, 1998b; van Bueren, 1998). 10. ‘Travaux préparatoires’ being synonymous with the ‘official reports of a negotiation’. 11. See also the Implementation Handbook, whose guidelines heavily build upon the Travaux Préparatoires (UNICEF, 2008). 12. Most notably the International Catholic Child Bureau (ICCB), the International Union for Child Welfare (IUCW), the World Council for Churches and the World Young Women’s Christian Association (YWCA). 13. For accounts of UNICEF’s history see most notably (Black, 1986; Black, 1996). 14. Frambach (GDR), (ECOSOC, 1978b: paras 68–69); Garvalov (Bulgaria), (ECOSOC, 1978b: para. 73) and Zorin (USSR), (ECOSOC, 1978b: para. 76). 15. Rowe (Canada), (ECOSOC, 1978b: paras 60 and 84); Danelius (Sweden), (ECOSOC, 1978b: paras 70–72 and 78); and Davis (Australia), (ECOSOC, 1978b: para. 75). 16. Comments by Bahrain, Bulgaria, Beylorussian Soviet Socialist Republic, Central African Empire, Chad, Dominican Republic, Hungary, Madagascar, Mauritius, Morocco, Pakistan, Peru, Turkey, Ukrainia Soviet Socialist Republic, USSR, United Arab Emirates and Zambia, (ECOSOC, 1978a). 17. Comments by Australia and United Kingdom, (ECOSOC, 1978a). 18. Comment by United Kingdom, (ECOSOC, 1978a). 19. Comment by Denmark, (ECOSOC, 1978a). 20. Comments by France and FRG, (ECOSOC, 1978a). 21. Comments by Bahrain, Bulgaria, Beylorussian Soviet Socialist Republic, Central African Empire, Chad, Dominican Republic, Hungary, Madagascar, Mauritius, Morocco, Pakistan, Peru, Turkey, Ukrainia Soviet Socialist Republic, USSR, United Arab Emirates, Zambia, (ECOSOC, 1978a).

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Notes

22. Comment by Sweden, (ECOSOC, 1978a). This opinion was also expressed by Hans Danelius, representative for Sweden, in the Commission on Human Rights in 1978, see (ECOSOC, 1978b). 23. While the ICJ was among the most influential legal associations of the ‘West’, the IADL represented the ‘East’. Olive Stone, in her report on the Warsaw Conference, states that this was the first time that an attempt at collaboration was made between these two International Legal Associations (Stone, 1979). 24. For a detailed account of participating countries and organizations see the note by the Secretary General, ‘European Conference on the Rights of the Child in Warsaw’, (Secretary General, 1979). 25. Working paper presented by Maître Roland Weyl (France, International Association of Democratic Lawyers), ‘The Evolution of the Concept of the Rights of the Child’, see note by the Secretary General, ‘European Conference on the Rights of the Child in Warsaw’ (Secretary General, 1979). 26. ‘Statement of principles on the legal protection of the rights of the child’, contained in (Secretary General, 1979: para. 3). 27. Comment by Sweden, (ECOSOC, 1978a). 28. 1978: International Union of Child Welfare; 1985: International Federation of Human Rights and Pax Romana; 1989: International Movement ATD Fourth World, World Movement of Mothers, International Council of Jewish Women, Rädda Barnen International, Four Directions Council, International Right to Life Federation, Caritas Internationalis, International Save the Children Alliance, Friends World Committee for Consultation, International Association of Educators for World Peace, Defence for Children International, International Youth and Student Movement for the United Nations, Latin American Disappeared Foundation of Associations of Relatives of Disappeared Detainees, International Indian Treaty Council, International Committee of the Red Cross. 29. Then Poland’s Minister of Religious Affairs. 30. See proposal made by the USSR (already in 1983), (ECOSOC, 1983b): ‘The States parties to the present Convention recognize that the child should enjoy all the basic human rights in the spirit of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights’.

7 Discursive practices within the UN and the transformation of a global childhood paradigm 1. See for instance, comment by Norway, (ECOSOC, 1978a) and argumentation of Australian delegate in Discussion in the Working Group 1986, (ECOSOC, 1986a: para. 24). 2. Kalinowski (Poland), (ECOSOC, 1983e: para. 67); Gay (Pax Romana), (ECOSOC, 1985b: paras 6 and 8); Bezabih (Ethiopia), (ECOSOC, 1988g: 30); Topwik (Observer for Poland), (ECOSOC, 1989i: para. 39); Ronquist (Sweden), (ECOSOC, 1989g: para. 40); Holmes (Canada), (ECOSOC, 1989g: para. 58); Markhus (Observer for the Libyan Arab Jamahiriya), (ECOSOC, 1989i: para. 45); Ben Malek (Observer for Tunisia), (ECOSOC, 1989i: para. 46).

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Notes 261 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

15.

16.

17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28. 29. 30. 31.

Konate (Senegal), (ECOSOC, 1985c: para. 113). Pearce (Australia), (ECOSOC, 1985c: para. 123). Gay (Pax Romana), (ECOSOC, 1985b: para. 8). Ksentini (Algeria), (ECOSOC, 1987d: para. 14). Sherwin (International Right to Life Federation), (ECOSOC, 1989i: para. 93). Romero (International Federation of Human Rights), (ECOSOC, 1985b: para. 4). Ibid. Konate (Senegal), (ECOSOC, 1985c: para. 116). Chowdury (Bangladesh), (ECOSOC, 1986b: para. 14). Ibid. Vittachi (Deputy Executive Director of UNICEF), (ECOSOC, 1986b: para. 12). Karl (Observer for Austria), (ECOSOC, 1989i: para. 32): ‘Children in many parts of the world were economically exploited, sexually abused, bought and sold or recruited to fight in wars. Such abhorrent practices and more common phenomena such as neglect and deprivation of basic rights, such as the right to food and education, must be addressed and provisions adopted to remedy the situation’. For particularly emotional passages see the statement of Williams (the United Kingdom), (ECOSOC, 1987d: para. 10); and the statement of Ksentini (Algeria), (ECOSOC, 1987d: para. 14). See for instance, Markhus (Observer for the Libyan Arab Jamahiriya), (ECOSOC, 1989i: para. 43); Bryce (Observer for Australia), (ECOSOC, 1989i: para. 60); Ogurtsov (Beylorussian Soviet Socialist Republic), (ECOSOC, 1987d: para. 27). See in particular the 1985 session of the Commission on Human Rights (ECOSOC, 1985c). Bryce (Observer for Australia), (ECOSOC, 1989i: para. 60). See for instance, Konate (Senegal), (ECOSOC, 1985c: para. 116); Lomeiko (USSR), (ECOSOC, 1987d: para. 22). Vittachi (Deputy Executive Director of UNICEF), (ECOSOC, 1986b: para. 12). Colliard (France), (ECOSOC, 1987d: para. 5). Al-Khadi (Iraq), (ECOSOC, 1987d: para. 18). Pacheco Egea (Observer for Uruguay), (ECOSOC, 1989i: para. 63); see also Comment of the Women’s Democratic Federation on the First Polish draft Convention, (ECOSOC, 1978a). Pars pro toto as a literary device is commonly defined as a part of the whole which is used synonymously with the whole. Ksentini (Observer for Algeria), (ECOSOC, 1985c: para. 129). Harder (International Save the Children Alliance), (ECOSOC, 1989i: para. 100). Sene (Senegal), (ECOSOC, 1989g: para. 16). Sene (Senegal), (ECOSOC, 1989g: para. 14). Zhang (China), (ECOSOC, 1989g: para. 52). Topwik (Observer for Poland), (ECOSOC, 1989i: para. 39). Lomeiko (USSR), (ECOSOC, 1987d: para. 22). Benhima (Morocco), (ECOSOC, 1989g: para. 61). For similar constructions of the child as ‘the future of mankind’ see: Bandier (International Association of Educators for World Peace), (ECOSOC, 1989i: para. 105); Ksentini, (Algeria) (ECOSOC, 1987d: para. 13); Markhus (Observer for the Libyan Arab Jamahiriya), (ECOSOC, 1988g: para. 50).

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32. Ulloa de Duoue (Colombia), (ECOSOC, 1986b: para. 18). 33. Proposal by Finland in the Working Group discussion 1985, (ECOSOC, 1985a: para. 61). 34. First Polish Draft, Article VII, (ECOSOC, 1978c: para. 124). 35. Proposal by the NGO Ad Hoc Group submitted to the Working Group in 1984, (ECOSOC, 1984a: para. 1). 36. Proposal by Canada in 1984, (ECOSOC, 1984c: annex II). 37. Modified proposal submitted by Poland in 1982, A/C.3/36/6, part II. 38. Jaeger (FRG), (ECOSOC, 1989g: para. 78). 39. Martin (Observer for Canada), (ECOSOC, 1985c: para. 133). 40. Fairweather (Canada), (ECOSOC, 1986b: para. 26). 41. Al-Khadi (Iraq), (ECOSOC, 1987d: para. 18). 42. Revised Polish draft, Article 3 (1), (ECOSOC, 1979b). 43. Ibid., para. 24. 44. Argumentation of the United States of America, (ECOSOC, 1981b: para. 20); similar argumentations advanced by the delegates of Canada, Japan and Argentina, see (ECOSOC, 1989f: para. 122). 45. See technical review comment by UNICEF, (ECOSOC, 1989j). 46. Discussion and adoption at second reading, (ECOSOC, 1989f: para. 121). 47. (ECOSOC, 1985a: para. 40). 48. Proposal by Venezuela, (ECOSOC, 1989e). 49. Proposal submitted by the Children’s Legal Centre through Defence for Children International in (Defence for Children International, 1983a: 19). 50. For most famous discussions of this principle from the 1970s and 1980s see especially (Goldstein et al., 1973; Goldstein et al., 1979; Goldstein et al., 1986). 51. Overall, it appears that the concept of the evolving capacities of the child emerged 16 times during the official debate, particularly during the discussions of Article 5, Articles 12–16 and Article 28 on education. 52. Konate (Senegal): ‘A final difficulty concerned politics. Since it was generally admitted in all systems of education, that children did not engage in politics, the rights granted to them should be less politicized’; (ECOSOC, 1985c: para. 118). 53. Martin (Observer for Canada), (ECOSOC, 1985c: para. 134). 54. Ibid., para. 135. 55. dos Santos Pais (Portugal), (ECOSOC, 1989g: para. 35). 56. Kramarczyk (GDR), (ECOSOC, 1989h: para. 49). 57. Bryce (Observer for Australia), (ECOSOC, 1989i). 58. Article 1 of Revised draft Convention on the Rights of the Child in (ECOSOC, 1979b). 59. Discussion of Article 1 by the Working Group in (ECOSOC, 1980: para. 28). 60. See also argumentation of Australian delegate, (ECOSOC, 1988f: para. 28). 61. Mostly the Nordic delegates, Canada and Australia; see especially 1987 discussion in the Working Group (ECOSOC, 1987c: paras 111–118). 62. Discussion and adoption in the Working Group, (ECOSOC, 1988f: para. 56). 63. Article 3 ‘best interests clause’; Article 9 (1) and 9 (3) Separation from parents; Article 18 (1) Parental responsibilities; Article 21 Adoption; Article 37 (c) Deprivation of liberty; Article 40 (b) (iii) Administration of Juvenile Justice.

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Notes 263 64. Article II and Article VII (2) of the first Polish draft, Article 3 (1) of the second Polish draft. 65. Proposal submitted by the representative of Canada at the 1983 session of the Working Group, contained in (ECOSOC, 1984c: para. 82). 66. Representative of Amnesty International in the drafting. 67. Gay (Representative of Pax Romana) at 1985 session of the CHR, (ECOSOC, 1985b: para. 8). 68. When asked in an interview about the participatory dimension of the CRC, Florence Bruce, permanent UN representative of the ICCB, answered, quite surprised, that draft Article 7 on the respect for the child’s views was one of the earliest to be drafted and accepted by the Working Group, see interview with (Florence Bruce, 2004). 69. CRC Article 12 (1). 70. See drafting history of Article 16 on ‘protection of privacy’ in (United Nations, 2007: 473–479). 71. Frambach (Observer for the GDR), (ECOSOC, 1978b: para. 68). 72. Sheikh Fadli (delegate of the Syrian Arab Republic), (ECOSOC, 1978b: para. 66). 73. Konate (Senegal), (ECOSOC, 1985c: para. 115). 74. Sene (Senegal), (ECOSOC, 1989g: para. 14).

8 The exclusionary facets of the social environment and their effects on the new image of childhood 1. 1981 session Zaire; 1982 Senegal; 1983 Senegal; 1984 no African country; 1985 Gabon, Liberia, Senegal; 1986 Ethiopia, Senegal; 1987 Senegal; 1988 Kenya, Nigeria, Senegal, Zimbabwe; 1989 Angola, Ethiopia, Libyan Arab Jamahiriya, Mozambique, Senegal. 2. Here particularly France, the Netherlands, Norway and the United Kingdom, all of which participated in every session between 1981 and 1989. 3. Interview with (Nigel Cantwell, 2003a). 4. Also confirmed in interviews with (Florence Bruce, 2004; Nigel Cantwell, 2003a; Nigel Cantwell, 2003b). 5. The information given here is taken from the detailed account of the NGO participant Price Cohen (Price Cohen, 1997). 6. These IGOs were: ILO, UNHCR, UNICEF, Inter-American Children’s Institute of the Organization of American States, Centre for Social Development and Humanitarian Affairs of the UN Secretariat, UNESCO, FAO, WHO, League of Arab States. Of these IGOs, only ILO and UNICEF participated regularly in the sessions of the Working Group, while the other organizations restricted themselves to issuing written statements. 7. Longford, UK representative to the drafting, states that none of the NGO representatives came from developing countries, ‘although there are many NGOs in developing countries which are active in the field of children’s rights’ (Longford, 1996: 232). 8. To be granted consultative status, NGOs must fulfil essential requirements related to their organizational structure and their international outreach. The 1968 resolution was replaced by ECOSOC resolution 1996/31 that extended NGOs’ rights to participate in the UN governance system.

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9. Interview with (Nigel Cantwell, 2003a). 10. For a very good description of the increasing participation and input by NGOs see (Price Cohen, 1985: 6–13). 11. Interview with (Nigel Cantwell, 2003a). 12. Examples in the same working paper 1983, pp. 10, 11 and 13. 13. Interview with (Nigel Cantwell, 2003b). 14. Interview with (Florence Bruce, 2004). 15. Interview with (Florence Bruce, 2004). 16. French original letter reads: ‘[i]ls pourraient faire connaître leurs opinion et leurs observations sous forme de rapports périodiques transmis à la Commission des droits de l’homme’, Letter of H. Veillard-Cybulska (Member of the General Committee of the Association Internationale des Magistrats de la Jeunesse et de la Famille) to Nigel Cantwell, 29 April 1983, archived in DCI Archives, Geneva. 17. Such issues were, for example, adoption, intra-familial maltreatment, health and health services. 18. Interviews with (Marta Santos Pais, 2004; Nigel Cantwell, 2003a). 19. Interview with (Marta Santos Pais, 2004). Santos Pais herself was Head of the Human Rights Division in the Office of Comparative Law of the Attorney Generals Office, not a legal specialist for children’s issues. Nevertheless, she described herself as someone with a general human rights background, coming from an office in which ‘we had to address very often the situation of children and the rights of children’; interview with (Marta Santos Pais, 2004). 20. In a paper addressed to the NGO Consultation on the Drafting of the CRC, Human Rights Internet explicitly stated that it ‘has no specific expertise on the rights of the child per se’; see (Price Cohen, 1983). 21. See Cantwell in (Longford, 1996: 223). 22. Interviews with (Florence Bruce, 2004; Nigel Cantwell, 2003a). 23. Interview with (Nigel Cantwell, 2003a); see also a summary of the 1984 meeting of the Informal Ad Hoc Group on the Draft Convention, in which it is reported that the representative of ICG mentioned three areas that needed further attention, in order to ensure ‘that the formulation of the Convention did not undermine provisions of existing international legal instruments’ (Cantwell and Bruce, 1984b). 24. Interviews with (Florence Bruce, 2004; Nigel Cantwell, 2003a). 25. Interview with (Nigel Cantwell, 2003b). 26. Interview with (Nigel Cantwell, 2003b). 27. Interview with (Marta Santos Pais, 2004). 28. Text introduced by Sweden on behalf of Sweden, Norway and Finland and proposal by Canada; (ECOSOC, 1984c: 13). 29. See Annex III to the Legislative History of the CRC, ‘Participants in the Working Group by year’, (United Nations, 2007: 933–935). 30. Paper submitted by the Permanent Representative of Bangladesh to the United Nations Office in Geneva with the request that the paper be annexed to the report of the Working Group, contained in (ECOSOC, 1986a: annex IV). 31. For insightful recapitulations of these culturally sensitive issues see most notably (Harris-Short, 2001; van Bueren, 1997). 32. This environment includes the wider family, community, even the village.

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Notes 265 33. See for example comments of France, Greece and Sweden on the first Polish proposal, (ECOSOC, 1978a: Add. (d.), (f) and (k)). 34. See also (Defence for Children International, 1988). In this background document the NGO Group stated that it shared ‘the concern of those who feel that, as presently drafted, the Convention may not take sufficient account of the traditional or customary responsibilities towards children that fall in particular to family-members other than the parents in many societies’, p. 2. 35. Interview with (Florence Bruce, 2004). 36. See the full discussion of Article 2 (non-discrimination clause) in the Working Group, contained in (United Nations, 2007). 37. Interview with (Nigel Cantwell, 2003b). 38. Interview with (Marta Santos Pais, 2004). 39. Discussion of final Article 18 in the Working Group in 1981, (ECOSOC, 1981b: paras 86–87). 40. See drafting history of Article 24 in (United Nations, 2007: 580–603).

9 The Convention and beyond – future prospects for an analysis of norm change through discourse 1. In 2002, UNICEF held its First Global Consultation on Human-Rights Based Approaches to Programming in Tanzania, 4–8 August 2002. 2. Conclusions and Recommendations of the Inter-Parliamentary Conference on Policies, Programmes and Legislation for Children in Africa, Yaoundé (United Republic of Cameroon), 22–26 November 1982, p. 2. 3. For example, the Senegalese proposal to refer to the child’s ‘duty to respect his parents and to give them assistance, in case of need’, see (ECOSOC, 1989f: para. 705) which provoked quite a positive response by several drafters but, after a suggestion by the Canadian delegate, was considered to be more appropriate within the framework of Article 29 (aims of education). Here, however, it was not taken up again. 4. In 1995, US Secretary of State Madeleine Albright signed the CRC on behalf of the Clinton Administration. 5. See the very interesting results of a UNICEF household survey carried out in Iran in 2001. The survey reveals that many of the core principles of the CRC do not apply to societal attitudes towards children and intra-familial practices in child-rearing; (UNICEF, 2001). 6. For research on children in armed conflict see for example (Carpenter, 2003; Carpenter, 2005; Fox, 2004; Goodwin-Gill and Cohn, 1994; Snyder, 2001; Sorger and Hoskins, 2001). For child labour see (Hanson and Vandaele, 2003; Liese, 2003; Ulbert and Wisotzki, 2001).

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Index adolescence, 133, 176–7, 182, 195, 208, 223, 238 maturity, 120, 130–7, 148, 150, 173, 176–84, 193–4, 231–4 process of maturation, 120, 150, 176, 182, 195, 233 agent-structure relationship, 29 Amnesty International (AI), 145 arguing vs bargaining, 4, 33–6 Ariès, Philippe, 99–100, 103, 113 Bachrach, Peter, 53–5 Baratz, Morton, 53–5 Barnett, Michael, 52–3 best interests of the child, see child, best interests of the child as individual/active rights-holder, 86, 116, 129, 160, 170, 175, 192, 195 best interests of the, 110, 116, 121–7, 133–7, 167, 170–3, 179–82, 188, 194, 201, 221 competence of the, 107, 130–6 consent of the, 171–2 definition of the, 125, 175, 224, 249 dependence of the, 122, 130–1, 136, 187, 233 evolving capacities of the, 149–51, 188, 194, 201, 221 identity of the, 16, 46, 86, 161, 201, 252 in international humanitarian law, 117–20 in international law, 115–30, 158 in international politics, 85–6, 150–2, 159, 189, 201, 244, 252 participatory rights of the, 134, 142, 153, 192, 204, 206, 238 triangular relationship between child, family and the State, 141, 143, 169, 186–7, 189, 243

child abuse and neglect, 105, 110, 164, 188, 209, 213, 225, 230 child emancipation, 109–10, 122, 158, 173, 178, 181, 192, 208, 239 child labour, 17, 86, 104, 118, 164 child participation, see participation of children child trafficking, 17, 86, 104, 118, 126, 164 childhood as contested concept, 85, 112–13, 193 end of, 143, 176–8, 190, 229, 231 historical images of, 99–104 in non-Western regions, 17, 108–9, 112–14, 206, 210 in science, 107–8 internationalization of, 98, 105–6, 109 standardization of, 98, 105, 107 universalization of, 107–9 Western ideal of, 88, 90, 114, 161–4 child images, 98, 100, 101–3, 109, 113, 160, 164, 245 evolving child, 20, 109, 116, 134–6, 173–80, 191, 223, 239 immanent child, 102, 116, 137, 164–7, 195, 245 innocent child, 102, 128, 161–4, 175, 191, 239 irrational child, 137, 161, 167–73, 182 child rights concept of, 115–16, 130–7, 142, 144, 163, 168, 185, 191, 238 moral rights vs legal claims, 133–4 Cohen, Howard, 109, 111 Cold War, 19, 157–8, 243, 248 Commission on Human Rights, see UN Commission on Human Rights

297

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298 Index Committee on the Rights of the Child, see UN Committee on the Rights of the Child constructivism linguistic constructivism, 35, 38–41 arguing approaches, 4, 20–1, 33–9, 59–62 structural approaches, 4–7, 12–14, 20–1, 39, 43–50, 236 linguistic turn in International Relations, 10, 59 thick constructivism, 39 communicative interaction, 3, 14, 20–3, 29, 33, 37, 48, 55, 68–9, 73–9, 237, 248 context global vs local, 3, 28, 66–8, 70, 97–8, 151, 237 Crawford, Neta, 35–6 Critical Discourse Analysis, see discourse analysis, Critical Discourse Analysis (CDA) De Mause, Lloyd, 99–100 Declaration on the Rights and Welfare of the African Child (1979), 129 Defence for Children International (DCI), 145, 203–4, 209, 216, 255 Der Derian, James, 42–3 Diez, Thomas, 43, 45 discourse and institutions, 66, 72–3, and transformation, 47–50 as movement and order, 70–3 definition of, 27–9, 34, 70–1, political, 13, 29–31, 45, 55, 112 power of, 4, 14, 21, 43, 46–58, 67–73, 91, 98, 197, 237, 240, 242, 251 power in, 3, 5, 14, 21, 46–58, 69–78, 91, 98, 197, 238, 240, 242, 251 theory in International Relations, 10–14, 27, 31–4 discourse analysis sociolinguistic, 6, 10–12, 19, 21, 27, 69–70, 235–7, 251

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Critical Discourse Analysis (CDA), 6, 11–14, 21, 47, 69–80, 91, 237, 253, 270 synchronic vs diachronic, 45, 67, 71, 80 discourse approaches interdisciplinary, 10–11 macro-structural, 39, 76, 80 micro-interactional, 33, 45, 50 discursive formation see Foucault, Michel discursive practices, 58–60 discursive resources, 69, 182–4, 188, 195 Doty, Roxanne Lynn, 44 Duvall, Raymond, 52–3 Elster, John, 34 European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children (1980), 122–3, 132, 134 exclusion in negotiations, see negotiations, and exclusion of alternative concepts, 55, 231–3 of modes of speaking, 54–5, 76–7, 215–16, 241 of semantic participants, 76–9, 219–24, 241 of speaking subjects, 79–80, 201 fact construction, 74–5, 80, 189–94, 238–40 Fairclough, Norman, 74 family in international law, 128 in the UN Convention on the Rights of the Child (CRC), 168–73 nuclear vs extended, 89, 208, 225–8 sacred/private family sphere, 110, 135, 151, 167–8, 182, 189, 195, 223, 239 Farson, Richard, 109 Foucault, Michel, 31, 38, 41–2, 44, 53, 76 archaeology, 44–5 discursive formation, 10, 48–9, 57 genealogy, 44

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Index funnelling model, 14, 21–2, 67–9, 72–3, 91, 97, 142, 237, 240, 251, 248 process, 73, 151, 219, 241 gender adolescent parenthood, 232–3 child marriage, 120, 129, 228, 232, 243 girl child, 120–1, 127, 224, 228–32 Geneva Declaration on the Rights of the Child (1924), see League of Nations Declaration on the Rights of the Child Habermas, Jürgen, 4, 27, 34, 60, 66 ideal speech-situation, 35 power of the better argument, 32–3, 37 Theory of Communicative Action, 27, 60 Hague Convention on the Civil Aspects of International Child Abduction (1980), 132, 180, 183, 214 Hobbes, Thomas, 101 Holt, John, 109 institutions as conventionalized discourse, 13, 57, 61, 67, 69, 80, 92, 164, 181, 195, 237 as proceduralized discourse, 13, 57–8, 62, 64, 66–7, 72, 80, 92, 201, 237, 241 as social environments, 15 definition of, 56–8 sociological institutionalism, 13, 56–7, 59 interdiscursivity, 74–5, 80, 160, 171, 181, 194 International Association of Democratic Lawyers (IADL), 148 International Catholic Child Bureau (ICCB), 144, 209 International Commission of Jurists (ICJ), 148

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299

International Covenant on Civil and Political Rights (ICCPR) (1966), 127–9, 158, 184–9 International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966), 127–9, 158, 186–9 International Union for Child Welfare (IUCW), 125, 145 International Year of the Child (1979), 85, 94, 129, 134, 142, 144–5, 151–2, 203 intertextuality, 73–4, 80, 182–9, 194, 239–40, 248, 251 Jebb, Eglantyne, 106 Key, Ellen, 105 League of Nations, 106, 118, 125, 163 Declaration on the Rights of the Child (1924), 123–4 linguistic turn in International Relations, see constructivism Locke, John, 102, 106 logic of appropriateness, 57 Lukes, Stephen, 53–5 Lynch, Marc, 34, 37 Milliken, Jennifer, 7–8 Mnookin, Robert, 112, 173 Müller, Harald, 249 Muntigl, Peter, 251 negotiation analysis conventional, 5, 20, 62, 249 sociological, 62–4 negotiations and exclusion, 66 as policy-making arenas, 64 Neill, Alexander Sutherland, 109, 103 non-decisions, see power, nondecisions non-governmental organizations (NGOs) status at the United Nations, 154–5 participation of children, 84, 86, 110, 134–7, 149, 174, 179, 232 Piaget, Jean, 102, 107

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300

Index

power and non-decisions, 14, 53–5, 219, 224, 231, 243 power in discourse vs power of discourse see discourse theories of, 52–5 theory of non-decisions, 53–5 practice, 57–8 Price, Richard, 44, 47 re-contextualization, 76–8, 80, 215–18, 240–1, 251 regime theory, 13, 15, 56 Risse, Thomas, 18, 36, 59 Rousseau, Jean-Jacques, 102–3, 106 Saco, Diana, 43, 254 Save the Children International Union (SCIU), 105–6, 125 Schattschneider, Elmer, 53–5 UN Commission on Human Rights, 153–4, 163, 167–8, 212, 215 Working Group for the UN Convention on the Rights of the Child (CRC), 11, 143–4, 148, 150–7, 161–3, 166–83, 189–248 UN Committee on the Rights of the Child, 144, 242 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1985), 153, 157 UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1963), 120 UN Convention on the Elimination of All Forms of Discrimination Against Women (1979), 121, 123 UN Convention on the Rights of the Child (CRC) contestation of, 17–18, 88–9 individual articles Article 1 – definition of the child, 150, 170, 208 Article 2 – non-discrimination, 228

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Article 3 – best interests clause, 124, 129, 150–1, 167, 170, 171, 180, 194 Article 5 – parental responsibilities, 121, 167, 171, 186, 187, 193, 224 Article 9 – separation from parents, 262 Article 10 – rights of a child deprived of a family, 225 Article 12 – right to express own views, 86, 175, 247 Article 13 – freedom of expression, 184, 186 Article 14 – freedom of thought, 220–3 Article 15 – freedom of association and peaceful assembly, 186 Article 16 – protection of privacy, 179, 184, 186, 189, 239 Article 17 – access to appropriate information, 186, 217 Article 18 – parental responsibilities, 226 Article 19 – child abuse and neglect, 213, 230 Article 20 – children without parental care, 164 Article 21 – adoption, 262 Article 22 – refugee children, 164 Article 23 – handicapped children, 164, 203 Article 24 – health issues, 171–2, 203, 226, 229, 230 Article 27 – standards of living, 233 Article 28 – education, 262 Article 29 – aims of education, 166, 265 Article 30 – children of minorities and indigenous groups, 164 Article 32 – child labour, 164 Article 33 – illicit use of narcotic drugs, 164 Article 34 – sexual exploitation, 164

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Index UN Convention on the Rights of the Child (CRC) – continued Article 35 – child trafficking, 164 Article 37 – deprivation of liberties, 83 Article 38 – protection in armed conflict, 164, 200 Article 40 – administration of juvenile justice, 262 optional protocols to, 86 reservations to, 89 UN Declaration on the Promotion among Youth of the Ideals of Peace (1965), 119 UN Declaration on the Rights of the Child (1959), 91, 125–7, 134, 160, 183, 198, 213 UNICEF, 87, 125, 162, 190–1, 194, 203–5, 210, 213, 218, 241, 246–7

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301

Universal Declaration of Human Rights (1948), 127–9, 140, 183 Van Dijk, Teun, 67 Warsaw Conference on the Rights of the Child (1979), 143, 148–50, 152–3 Weldes, Jutta, 43 Wodak, Ruth, 65 Working Group for the UN Convention on the Rights of the Child (CRC), see UN Commission on Human Rights, Working Group for the UN Convention on the Rights of the Child (CRC)

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