In this section, I briefly discuss the central concepts of the thesis. Firstly, for brevity and due to the international human rights law focus of the thesis, I use the term ‘human rights’ rather than ‘fundamental rights’ or ‘constitutional rights’, even though these expressions are commonly used to refer to rights guaranteed by domestic constitutions. Human rights and fundamental rights are similar in many ways, and their difference lies mostly in whether the rights are safeguarded in an international convention or a national constitution (or the CFREU).61 Human rights originate from domestic constitutional documents, which further accentuates the
57 Article II, 250-251.
58 For children’s representation and standing before the ECtHR, see Fenton-Glynn, ‘Children, parents and the European Court of Human Rights’ 649-652.
59 Alice Margaria, ‘Going beyond judgments: exploring the jurisprudence of the European Court of Human Rights’ in Rossana Deplano (ed), Pluralising International Legal Scholarship The Promise and Perils of Non-Doctrinal Research Methods (Edward Elgar Publishing 2019); see also Simona Florescu, ‘Justice from the Perspective of an Applicant: meeting Ms Neulinger’ (Strasbourg Observers, 12 November 2018)
<https://strasbourgobservers.com/2018/11/12/justice-from-the-perspective-of-an-applicant-meeting-ms-neulinger/> accessed 21 January 2021; Marie-Bénédicte Dembour, ‘What It Takes to Have a Case:
The Backstage Story of Muskhadzhiyeva v Belgium (Illegality of Children’s Immigration Detention)’ in Elisabeth Lambert Abdelgawad (ed), Preventing and Sanctioning Hindrances to the Right of Individual Petition before the European Court of Human Rights (Intersentia 2011).
60 Margaria, ‘Going beyond judgments: exploring the jurisprudence of the European Court of Human Rights’
102.
61 For a similar usage, see eg Tuomas Ojanen, ‘Human Rights in Nordic Constitutions and the Impact of International Obligations’ in Helle Krunke and Björg Thorarensen (eds), The Nordic Constitutions: A Comparative and Contextual Study (Hart Publishing 2018) 134-135.
similarities between fundamental and human rights.62 By ‘human rights’, I refer to legal human rights, that is, rights that are included in international and regional human rights instruments.63
An important concept for the thesis is human rights practice. All the different actors analysed in this thesis participate in the creation of the ‘human rights practice’ or the ‘practice of human rights’.64 Buchanan defines this practice in a broad way. He notes that the practice is variegated and lists an array of processes and activities covered by it, including (to cite examples relevant to this thesis)
‘the activities of international organizations that monitor compliance with the treaties (Treaty Bodies)’, ‘the actions of international and regional courts when they make reference to human rights in their decisions’, as well as ‘the recourse to international human rights law by judges in domestic courts’. Furthermore, Buchanan points to the central role of the international legal human rights system – meaning UN-based human rights law and the institutions supporting it – in the practice of human rights.65 Despite using the term ‘human rights practice’, however, it is important not to assume that more human rights jurisprudence necessarily equates to increased respect for human rights on the ground.66 While the decisions of human rights treaty bodies that find a violation may lead to positive results for the victims and contribute to positive future developments more generally, the link is not automatic. Human rights practice, as used in this thesis, does not describe the grassroots level. The concrete process of the contextualisation of human rights, an essential step in transforming universal rights to the concrete level,67 falls outside the scope of this thesis, even though Articles I and IV address the national level in addition to the international level.
The use of the term ‘concept’ when referring to the best interests of the child is another terminological choice. In previous research, the terminology varies, with several researchers referring to best interests as a ‘principle’.68 The CRC
62 Olivier De Schutter, International Human Rights Law (3rd edn, Cambridge University Press 2019) 13, 36.
63 I discuss my understanding of human rights in more detail in section 3.2.
64 Allen Buchanan, The Heart of Human Rights (Oxford University Press 2013) 5; De Schutter calls it
‘international human rights jurisprudence’, see De Schutter, International Human Rights Law 36. See also Todd Landman, Studying Human Rights (Routledge 2006) 5, although Landman does not focus on courts but rather on ‘human rights practices’ on the ground. Engle Merry, too, uses ‘practice of human rights’ to refer to local actors, which is different from my use here, see Sally Engle Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’ (2006) 108 American Anthropologist 38.
65 Buchanan, The Heart of Human Rights 5-6.
66 Fons Coomans, Fred Grünfeld and Menno T Kamminga, ‘Methods of Human Rights Research: A Primer’
(2010) 32 Human Rights Quarterly 179, 182.
67 On the contextualisation of human rights, see eg Ann Quennerstedt, ‘The Political Construction of Children’s Rights in Education – A Comparative Analysis of Sweden and New Zealand’ (2011) 2 Education Inquiry 453.
68 Eg Zermatten, ‘The Best Interests of the Child Principle: Literal Analysis and Function’; Freeman, ‘Article 3: The Best Interests of the Child’.
Committee often does the same, which sometimes seems to be a conscious decision to understand best interests as a principle69 and sometimes a pattern that does not necessarily reflect a deeper ideology.70 In Article I, which was written in the early stages of this thesis, I referred to best interests as a principle. I later decided against using the term because, in my opinion, ‘concept’ is more neutral and does not express any particular understanding of the nature of the best interests of the child. I also do not use the term ‘best interests norm’ because ‘norm’ refers to the outcome of interpreting a provision.71 In addition to referring to best interests as a concept, ‘provision’ is, therefore, used in this thesis when referring to Article 3(1) CRC. ‘Principle’, however, is a loaded term. According to Dworkin’s division of standards into rules and principles, a rule is either valid or not, whereas a principle ‘states a reason that argues in one direction, but does not necessitate a particular decision’. When applied, principles have weight in relation to one another, whereas rules do not. Dworkin identifies policies as a third category of standards and distinguishes them from principles as advancing a certain goal, whereas principles serve as requirements of ‘justice or fairness or some other dimension of morality’.72 Alexy, however, submits that constitutional rights are principles and, as such, ‘optimization requirements, characterized by the fact that they can be satisfied to varying degrees’. In contrast, rules are either fulfilled or not.73 In Alexy’s model, Article 3(1) would inevitably be a principle. However, even if Article 3(1) seems at face value like a prototype of principle, it has been argued that in the Dworkinian division, Article 3(1) is a rule because it prescribes a step in the decision-making process.74 As the findings of this study point in the same direction, I prefer to use terminology that is more neutral.
69 See, in particular, Article III.
70 When conducting the research for Article IV, for each concluding observation, I documented whether the CRC Committee referred to best interests as a principle, as I initially thought that the terminology might offer insight into how the Committee views the concept. Later, however, I abandoned this line of thought and did not address the question in Article IV because I found the use of the term ‘principle’ to be rather incidental.
71 I thank Visa Kurki for this observation.
72 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1977) 22-28.
73 Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2010) 47-48.
74 Bruce Abramson, ‘A Commentary on the United Nations Convention on the Rights of the Child’ in André Alen and others (eds), Article 2: The Right of Non-Discrimination (Martinus Nijhoff Publishers 2008) 53-54, 66.