6 Major implications of the findings
6.3 A maximalist concept without limitation criteria
In this section, I explore a possible explanation for the problems related to the application of the best interests concept in human rights practice: a minimalist understanding of human rights and the problems of an approach focused on
447 Eg Draghici, The Legitimacy of Family Rights in Strasbourg Case Law: ‘Living Instrument’ or Extinguished Sovereignty? 392.
448 Article II, 253.
limiting rights.449 I argue that the best interests concept aims to maximise human rights and that combined with the unclarity about the criteria under which the best interests of the child can be limited, the maximalist nature of the concept makes it unfit for a context focused on limiting rights, such as decision-making in courts. The tension between the concept’s maximalist nature and the minimalist environment contributes to the concept being sidelined in the argumentation of courts.
Brems has criticised the common ‘border control type’ approach to human rights monitoring, which focuses on the concept of human rights violations.
According to this minimalist logic, a violation takes place if an action or omission crosses the borderline, but the variety of approaches beyond the borderline receives little attention and does not encourage ambitious human rights agendas.
This focus on the border often means that degrees of violations – or degrees of respecting, protecting and fulfilling human rights – are not recognised. Such a situation encourages states to avoid violations instead of looking for best practices.
Another problem is the border’s ‘bottom line’ character; the location of the border is often not clear, and a finding of non-violation by supranational bodies, such as the ECtHR, often results, in practice, to the borderline becoming the bottom line.450 This is visible, for example, in the ECtHR’s immigration jurisprudence, where findings of non-violation are often cited in newer case law, whereas verdicts of violation are regarded as exceptional. In contrast to the minimalist logic, a ‘maximalist’ discourse ‘presupposes a society, or government, or regime, perceiving the protection of human rights as part of their common heritage or identity of their shared goals’. In the maximalist discourse, ‘states actively search for the policy option that least restricts human rights or that contributes most to effective human rights protection and fulfilment’. In practice, states would prioritise the most human rights friendly policy options and conduct human rights impact assessments. Ideally, reporting procedures would be an effective tool with which to measure human rights progress.451
449 The terms minimalist and maximalist can also be used in another meaning, that is, to refer to the relationship between different systems for the protection of human rights. In this meaning, a minimum standard signifies that human rights treaties constitute a minimum level of human rights protection and that national interpretations should aim at better protection. A minimum standard set by a human rights treaty is, therefore, relevant in the context of limiting rights. In Finland, for instance, one of the criteria for limiting fundamental rights enshrined in the Constitution is compliance of the limitation with human rights treaties binding upon Finland. Nevertheless, this is not the only criterion, which means that the permissibility of a limitation in the ECHR system does not automatically result in the permissibility in the national test. For the Finnish criteria, see Constitutional Law Committee 25/1994, 4–5; Ojanen, ‘Human Rights in Nordic Constitutions and the Impact of International Obligations’ 146-147.
450 Eva Brems, ‘Human Rights: Minimum and Maximum Perspectives’ (2009) 9 Human Rights Law Review 349.
451 Ibid 371-372.
As a potential solution to addressing the minimalist logic, Brems proposes extending the concept of progressive realisation to the area of civil-political rights so that in addition to a bottom line of state obligations, there would also be a ‘horizon line’ signalling good practices. Extending the idea of progressive realisation would also contribute to stripping down the artificial division between the dichotomy between civil-political rights, associated with negative obligations, and ESC rights, associated with positive obligations.452 I address this dichotomy in the next section.
Another solution would be the least restrictive alternative criterion, which would necessitate either choosing the option that least restricts human rights or requiring evidence that less restrictive means have been considered; with this solution, a maximisation criterion could be included in the process of a court determining the location of the violations border. A consistent application of the least restrictive alternative criterion, however, appears difficult.453 Despite these suggestions, the tension between the maximalist best interests concept and the minimalist logic of courts is unlikely to disappear.
Simplified, the tension between minimalist and maximalist approaches can be illustrated by court judgments that contrast with the position of the CRC Committee. The different position of the child in the ECHR system and the SAC as opposed to the CRC Committee have an impact on the role that the child’s rights and interests can have in the reasoning. The lens through which the facts of the case are viewed affects the balancing of interests.454 As explained above, the starting point of argumentation in courts is usually whether rights have been violated. The tendency of courts to settle for the minimum standard has been noted, for example, in the Finnish context.455 The ECtHR has to find a balance between different rights and interests, which is complicated by the adult-centric structure of the ECHR in which children’s rights, including the best interests of the child, often appear as exceptions to the rights of adults and the premise is protecting a parent’s rather than the child’s rights.456 The problems are exacerbated by issues related to children’s representation in courts. Representation demonstrates the effect of framing the issue on best interests assessments; who is entitled to represent a child’s interests can prove to be significant in how those interests are understood by courts.457 As Liefaard has noted, assessing the child’s best interests does not
452 Ibid 365-366.
453 Ibid 359-365.
454 Collinson, ‘Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest’ 338-339.
455 Lavapuro, Ojanen and Scheinin, ‘Rights-based constitutionalism in Finland and the development of pluralist constitutional review’ 523.
456 Fenton-Glynn, ‘Children, parents and the European Court of Human Rights’ 647; Jane Fortin, ‘Children’s Rights: Are the Courts Now Taking Them More Seriously?’ (2004) 15 King’s College Law Journal 253, 268.
457 Fenton-Glynn, ‘Children, parents and the European Court of Human Rights’ 649-652.
equate to legal representation, and legal representation is needed to ensure that the child has an opportunity to express his or her views also on which procedural steps are taken.458
In contrast to courts, the COs often manifest a ‘maximalist’ approach to human rights monitoring; instead of focusing on whether a violation took place, the Committee guides states in shaping legislation and policies to optimally ensure children’s rights. Having analysed the CRC Committee’s general comments in terms of their usefulness for national courts, Couzens has concluded that the division between lawful and unlawful is not clear; general comments ‘often tell us what advances the rights and well-being of children but not what the state is legally bound to do’.459 The Committee’s reluctance to spell out clearly the state’s legal obligation may result in part from an unwillingness to reduce the CRC to a minimum level. Khaliq and Churchill have noted that the CRC Committee considers all CRC rights justiciable, even the vaguer ones, but does not explain why.460 Such an approach is possible because the CRC Committee does not have to consider conflicting interests, except when handling individual communications.
In its emerging jurisprudence concerning individual communications, too, the Committee’s position is child-centred.
Based on the findings of this study, the concept of the best interests of the child does not fit in a minimalist framework. The concept does not seem to work well in a setting where rights are limited. I suggest that a partial explanation for this is the combination of the maximalist nature of the best interests concept and the unclarity concerning the criteria under which the best interests of the child can be limited. The maximalist nature of the concept is reflected in the wording of Article 3(1) CRC: the concept aims to enable the best possible solution for the child, and the CRC Committee’s guidelines for balancing start from the idea that children’s interests have to be prioritised.461 What, then, is an acceptable minimum level for Article 3(1)? This is an important question because the ideal of prioritising children’s interests is rarely reached in human rights practice, as demonstrated in this thesis and elsewhere. I suggest that if Article 3(1) is used as a yardstick to
458 Liefaard, ‘Access to Justice for Children: Towards a Specific Research and Implementation Agenda’ 207.
On the complex nature of legal assistance and challenges related to it, see ibid 207-213.
459 Couzens, ‘CRC Dialogues: Does the Committee on the Rights of the Child “Speak” to the National Courts?’
118.
460 Urfan Khaliq and Robin Churchill, ‘The protection of economic and social rights: a particular challenge?’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012) 222.
461 Some have proposed that the idea of determining what is best for a child could be ‘supplanted by the opposite notion of the “least pain,” or the principle of precaution’ in situations where children’s interests conflict with other interests. See Jean Zermatten, ‘Best Interests of the Child’ in Said Mahmoudi and others (eds), Child-friendly Justice: A Quarter of a Century of the UN Convention on the Rights of the Child (Brill Nijhoff 2015) 39.
measure the outcome of a decision, the legal content of Article 3(1) in the case at hand should be defined, after which the criteria for limiting human rights (instead of balancing) should be applied.462 I outline the difference between balancing and using limitation criteria in section 6.4.
As discussed above, the difficulty of providing efficient human rights protection while looking for the violations borderline is not limited to the best interests of the child only; decision-making in courts is, in general, of such nature that promoting human rights is often left out of the agenda. Nevertheless, the best interests concept seems to be particularly ill-fitted to such a context because it invites picturing the best circumstances for the child concerned without guidance on how to assess a situation in which other interests or rights possibly weigh more than those of the child. Claims about something being in a child’s best interests will rarely hold if a child does not have a right to something that is in his or her best interests. As Crock has noted, the problem is that the ‘over-arching principle does not create an absolute right’.463
In light of this study, a minimalist approach is particularly striking in the context of migration law. The finding that children’s best interests are often set aside in migration cases can be explained by the strong state-centric tradition in the ECHR system464 and in migration law in general, where ideas such as security, state sovereignty and privileging citizens over non-citizens play a prominent role.465 The tension between human rights and sovereign self-determination claims466 underlies the argumentation of actors interpreting human rights law, including the SAC and the ECtHR. As a supranational court, the ECtHR needs to find a balance between subsidiarity and advancing human rights.
In other case groups, too, considerations related to legitimacy and the role of courts set limits on maximalist interpretations. In migration law, however, such considerations appear particularly strong. Previous research has demonstrated that the internal structure of migration law limits the scope of case-by-case best interests assessments. Consequently, there may be an inherent conflict between
462 Collinson, who argues that the best interests of the child can be understood as a substantive human right in national expulsion decisions, has composed a broadly similar list of limitation criteria, although he does not explicitly comment on the difference between balancing and limiting rights nor on how best interests should be determined. See Collinson, ‘Making the best interests of the child a substantive human right at the centre of national level expulsion decisions’ 177-178.
463 Mary E Crock, ‘Justice for the Migrant Child: The Protective Force of the Convention on the Rights of the Child’, Child-friendly Justice: A Quarter of a Century of the UN Convention on the Rights of the Child (Stockholm Studies in Child Law and Children’s Rights, Brill Nijhoff 2015) 225.
464 Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint.
465 See eg Elspeth Guild, Security and Migration in the 21st Century (Polity 2009).
466 Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge University Press 2004).
immigration law and the rights of the child.467 A similar argument has been made in relation to ECtHR deportation case law concerning foreign national offenders with children, although on somewhat different grounds; the argument is that the ECtHR’s decision-making structure is built in such a way that it does not allow the Court to assess the best interests of the child as a separate criterion nor to genuinely consider all relevant rights.468 The ECtHR’s stance on nationality in cases concerning the deportation of long-time foreign residents has been criticised for operating ‘within a racially discriminatory paradigm’ and for strengthening the logic of state sovereignty by not examining the conditions of access to nationality nor recognising the constructed nature of nationality law, among other reasons.
In retrospect, regarding discrimination based on nationality as legitimate may one day appear as incomprehensible as gender inequality.469
However, migration law is not the only context dominated by the minimalist logic, as discussed above; in general, decision-making in courts is prone to looking for the borderline. As the maximalist formulation of the best interests concept and the unclarity regarding the criteria for limiting best interests complicate its application in a minimalist setting, it is all the more important in the context of migration law, too, to understand whether the best interests of the child can be limited or not.