How best interests entered human rights law

This section introduces the context of the study, that is, the concept of the best interests of the child in human rights law. The background is crucial because it highlights the development of the concept, the interpretation of the CRC Committee and some problems associated with that interpretation. The section discusses the drafting history of the best interests concept in the CRC, the concept’s inclusion in the CRC’s ‘general principles’, the CRC Committee’s General Comment on best interests (GC14) and other general comments, and, finally, the questions that the Committee’s approach leaves unanswered. The section focuses on the CRC as the concept became a human rights law concept upon inclusion in the CRC.

According to my understanding, the CRC changed the best interests concept in three important ways: it broadened the scope of the concept, made best interests a primary consideration, and established a connection between best interests and human rights.⁷⁶

Even though the role of travaux préparatoires is not as central in interpreting international treaties as in interpreting national legislation,⁷⁷ understanding where the concept came from is essential. The drafting records of the CRC help to reveal how the drafters conceived of the best interests concept, its place in the CRC in relation to other provisions and what kind of connotations were attached to it.

It is also interesting to observe whether the elevated status of Article 3(1) in the interpretation of the CRC can be traced to the drafting phase.

The notion of best interests was not created by those who drafted the CRC.

‘Best interests’ have existed in many national jurisdictions for a long time, although they were narrow in scope and usually arose in matters related to family law. The Universal Declaration of Human Rights does not grant children any special rights, but it provides in Article 25(2) that ‘Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection’. The CRC was preceded by two declarations, the 1924 and the 1959 Declarations of the Rights of the Child.

Drinan articulates the prevailing view that the international human rights community did not speak about children’s rights until the drafting of the CRC,

76 In Article I, I claimed that there were two major changes. However, I currently think that the primacy of best interests deserves to be mentioned as one of the three.

77 According to Article 32 VCLT, travaux préparatoires are included in ‘supplementary means of interpretation’.

claiming that the law regulating families was ‘the most local of all laws’, which is why internationalising it was a big step.⁷⁸ According to common understanding, the agenda of the children’s rights movement underwent a transformation from protecting children to protecting their rights,⁷⁹ and both agendas are visible in the CRC.⁸⁰ The drafting of the CRC was initiated by Poland, who proposed to the UN Commission on Human Rights in 1978 that a convention on the rights of the child be adopted. Several states expressed their support for drafting such a convention to celebrate the International Year of the Child of 1979.⁸¹ Alston sees the Polish proposal as motivated by politics of Cold War and communist countries’ emphasis on economic and social rights.⁸²

Unlike some other central articles of the CRC, Article 3 was present from the beginning of the drafting process.⁸³ The formulation in the first Polish proposal was identical to the respective ‘principle 2’ of the 1959 Declaration on the Rights of the Child,⁸⁴ and it had been Poland who suggested including this principle in the Declaration.⁸⁵ The similarity with principle 2 was assumedly due to a tight

78 Robert F Drinan, The Mobilization of Shame: A World View of Human Rights (Yale University Press 2001) 45-46.

79 See eg Michael Freeman, ‘The Sociology of Childhood and Children’s Rights’ (1998) International Journal of Children’s Rights 433, 434-435.

80 Didier Reynaert, Maria Bouverne-De Bie and Stijn Vandevelde, ‘Between “believers” and “opponents”:

Critical discussions on children’s rights’ (2012) 20 The International Journal of Children’s Rights 155, 158.

81 Commission on Human Rights, ‘Report on the thirty-fourth session (6 February – 10 March 1978)’

E/CN.4/1292, paras 305-311. For analyses of the drafting history of the CRC in previous research, see eg Anna Holzscheiter, Children’s rights in international politics: The transformative power of discourse (Springer 2010); Zoe Moody, Les droits de l’enfant. Genèse, institutionnalisation et diffusion (1924-1989) (Editions Alphil 2016); Cynthia Price Cohen, ‘The Developing Jurisprudence of the Rights of the Child’

(1993) 6 St Thomas Law Review 1, 2-25; Cynthia Price Cohen, Stuart N. Hart and Susan M. Kosloske,

‘Monitoring the United Nations Convention on the Rights of the Child: The Challenge of Information Management’ (1996) Human Rights Quarterly 439; Sylvie Langlaude, ‘Children and Religion under Article 14 UNCRC: A Critical Analysis’ (2008) 16 The International Journal of Children’s Rights 475.

82 Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ 6.

83 Elaine E. Sutherland, ‘Article 3 of the United Nations Convention on the Rights of the Child: The Challenges of Vagueness and Priorities’ in Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane (eds), Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (Cambridge University Press 2016).

84 According to principle 2, ‘The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration’. Best interests are also mentioned in principle 7 concerning its guiding function for parents. See also Nigel Cantwell, ‘The Origins, Development and Significance of the United Nations Convention on the Rights of the Child’ in Sharon Detrick (ed), The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires” (Martinus Nijhoff Publishers 1992) 19; Jaap Doek, ‘The Current Status of the United Nations Convention on the Rights of the Child’ in Sharon Detrick (ed), The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires” (Martinus Nijhoff Publishers 1992) 632.

85 Commission on Human Rights, ‘Report of the Fifteenth Session (16 March – 16 April 1959)’ E/CN.4/789, paras 136-140.

schedule and the expectation of little debate over a proposal based on principles already agreed upon.⁸⁶

Article 3(1) CRC in its final form, however, differs from the best interests principle in the 1959 Declaration. Alston claims that a central difference is that in the 1959 Declaration, the principle appears ‘in a context in which the child is more the object than the subject of rights’. The scope of Article 3(1) is also broader as it does not apply solely in the context of legal and administrative proceedings.⁸⁷ The crucial difference between the CRC and the declarations is that the CRC is binding and has an implementation mechanism, which the declarations lacked. Cohen has argued that, unlike nearly every other treaty based on a previous declaration, the CRC ‘totally revised the previously accepted notion of children’s rights, bearing only a slight resemblance to the Declaration of the Rights of the Child that inspired it’.⁸⁸ Cantwell considers the CRC Committee’s statement that the concept ‘was already enshrined’ in the 1959 Declaration as well as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)⁸⁹ misleading because the formulations were much narrower in the declaration.⁹⁰ While it is true that the formulation of the best interests concept in the CRC is more extensive than in the declaration, the CRC also contains the tension between children’s agency and care needs found in the 1959 Declaration⁹¹ and portrays the child as ‘both dependent and independent’.⁹² Tobin argues that the need to protect children, which derives from their special vulnerability – a central part of the moral justification of the CRC –, consists of two ideas: protecting children, firstly, against potential harm from others and, secondly, against potential harm from themselves.⁹³

During the drafting process that started in 1979,⁹⁴ the Polish proposal underwent a number of changes as several states were concerned that, for example,

86 Cantwell, ‘The Origins, Development and Significance of the United Nations Convention on the Rights of the Child’ 21.

87 Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ 4.

88 Cohen, ‘The Developing Jurisprudence of the Rights of the Child’ 3-5.

89 GC14, para 2.

90 Cantwell, ‘Are “Best Interests” a Pillar or a Problem for Implementing the Human Rights of Children?’

62-63.

91 Wouter Vandenhole, Gamze Erdem Türkelli and Sara Lembrechts, Children’s Rights: A Commentary on the Convention on the Rights of the Child and Its Protocols (Edward Elgar Publishing 2019) 31.

92 Solveig Hägglund and Nina Thelander, ‘Children’s rights at 21: policy, theory, practice – Introductory remarks’ (2011) 2 Education Inquiry 365, 365.

93 John Tobin, ‘Justifying Children’s Rights’ (2013) 21 The International Journal of Children’s Rights 395, 426-429.

94 An ‘Open-ended Working Group on the Question of a Convention on the Rights of the Child’ was set up by the Commission on Human Rights and started to draft the CRC in 1979. The working group was

‘open-ended’ because any of the 43 states represented on the Commission were allowed to participate, see Cantwell, ‘The Origins, Development and Significance of the United Nations Convention on the Rights of the Child’ 21-22.

the language lacked the preciseness and clarity required in legally binding texts.⁹⁵ However, the implementation of the rights guaranteed was not discussed. The problems of consensus-based law-making also characterised the drafting of the CRC. The records only communicate the views of those who spoke, and a view expressed by one state was not necessarily endorsed by others.⁹⁶ The CRC was unanimously adopted by the General Assembly on 20 November 1989, and it entered into force on 2 September 1990.⁹⁷ The convention is the first human rights treaty to go against tradition by safeguarding both civil-political and economic, social and cultural rights (ESC rights) in a single text.⁹⁸

Tracking references to ‘best interests’ in the CRC’s drafting records reveals two important points concerning the best interests concept. Firstly, the meaning of best interests was little discussed during the drafting.⁹⁹ Compared to several other articles of the CRC, the discussions related to Article 3(1) were relatively brief. The scope of the provision was discussed: the list of bodies that are obliged by the provision to take best interests into account was amended several times, and the delegates noted the difference between public and private bodies.¹⁰⁰ This seems reasonable, although the structure of human rights conventions as creating state obligations already places strong emphasis on public decision-making. One can, therefore, assume that the broad scope, which is one of the most significant characteristics of the provision, was intentional. Secondly, the drafting process concentrated on the hierarchical status of best interests. Different wordings were considered regarding the primacy of Article 3(1) – should best interests be the paramount, the primary or a primary consideration, or should they be of primary consideration? From the perspective of human rights law, best interests as ‘a primary’ instead of ‘the paramount’ consideration seems justified. It is quite clear that other interests and rights can – at least sometimes – be preferred over

95 Commission on Human Rights, ‘Question of a Convention on the Rights of the Child. Report of the Secretary-General’ E/CN.4/1324 (27 December 1978); see eg submissions by Denmark, the Netherlands and the United Kingdom.

96 On the idea of consensus in the drafting, see Ann Quennerstedt, Carol Robinson and John I’Anson, ‘The UNCRC: The Voice of Global Consensus on Children’s Rights?’ (2018) 36 Nordic Journal of Human Rights 38-54.

97 Sharon Detrick, The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires” (Martinus Nijhoff Publishers 1992) 1.

98 See eg Eugeen Verhellen, ‘The Convention on the Rights of the Child: Reflections from a historical, social policy and educational perspective’ in Wouter Vandenhole and others (eds), Routledge International Handbook of Children’s Rights Studies (Routledge 2015) 49.

99 Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ 10-11.

100 Commission on Human Rights, ‘Report of the Working Group on a Draft Convention on the Rights of the Child’ E/CN.4/L.1575 (17 February 1981), paras 22-24; Commission on Human Rights, ‘Report of the Working Group on a Draft Convention on the Rights of the Child’ E/CN.4/1989/48 (2 March 1989), paras 117-126.

children’s rights, and consequently the use of a vocabulary that implies that children’s rights and interests always prevail would be misleading.¹⁰¹

It is noteworthy that the meaning of interests, or best interests, was not discussed in the drafting. As Alston has observed, it seems that the delegates assumed for some reason that the term itself did not need clarification, or they considered the meaning unimportant.¹⁰² Some submissions, however, indicated that the concept is vague and of a general nature and, therefore, open to multiple interpretations.¹⁰³ The interaction between best interests and children’s rights was not explicitly addressed in the drafting either. Even though the notion of best interests was present from the beginning of the drafting, it was not reviewed after including a comprehensive set of rights in the convention.¹⁰⁴ What is perhaps even more significant, however, is that none of the delegates appears to have questioned the implications of according best interests such a prominent role in the convention (although France suggested that best interests be included in the preamble rather than in the body of the convention).¹⁰⁵ With the benefit of hindsight, these questions should have received more attention than the records suggest they did.

However, the lack of attention given to the definition of best interests in the context of Article 3(1) is not the full picture: discussions regarding other, more context-specific and, therefore, concrete provisions can provide insight. The drafting records of these provisions reflect some kind of a general agreement over the case-by-case nature of the concept. However, one can naturally question the extent to which the understanding of best interests as a concept with a case-by-case nature can be attributed to the structure of any legal norm applicable to different situations. Furthermore, the concept often appears to justify an exception from a practice that is in most situations in accordance with children’s rights; but this is not always the case, which is why a possibility to deviate is needed. Several

101 The use of the modal auxiliary ‘shall’ in the provision may create confusion as to how binding the obligation to consider best interests is as ‘shall’ has been considered imprecise in general, see eg Christopher Williams, Tradition and Change in Legal English: Verbal Constructions in Prescriptive Texts, vol 20 (Linguistic insights, 2nd edn, Peter Lang 2007); however, ‘shall’ is commonly used in treaties, eg the ECHR, to express obligation, see Germana d’Acquisto and Stefania d’Avanza, ‘The Role of SHALL and SHOULD in Two International Treaties’ (2009) 3 Critical Approaches to Discourse Analysis across Disciplines 36. It, thus, seems clear that ‘shall’ creates a binding obligation.

102 Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ 10-11.

103 Similarly, see Sutherland, ‘Article 3 of the United Nations Convention on the Rights of the Child: The Challenges of Vagueness and Priorities’ 29. See eg the submission of three nongovernmental organisations indicating that the general nature of the provision may induce states to interpret the concept so that it allows discriminatory practices, Commission on Human Rights, ’Question of a Convention on the Rights of the Child: Proposals Submitted by the Following Non-governmental Organizations in Consultative Status: International Federation of Human Rights, International Federation of Women in Legal Careers, Pax Romana (Category II)’ E/CN.4/1984/WG.1/WP.6 (30 January 1984).

104 Cantwell, ‘Are “Best Interests” a Pillar or a Problem for Implementing the Human Rights of Children?’ 65.

105 Ibid 63.

examples of this can be found in the discussions, such as in the context of the deprivation of children’s liberty and whether children deprived of their liberty should always be separated from adults or whether there is room for exceptions.¹⁰⁶

It is interesting to compare the drafting process of Article 3(1) with those of other themes. Sabatello has shown that questions related to bioethics constantly surfaced in the drafting of the CRC and argues that the absence of provisions regulating children’s bioethics in the CRC ‘indicates the controversial nature of the subject rather than a lack of care or attention’.¹⁰⁷ Another debated issue was the status of the unborn child, which was eventually left open in the convention.¹⁰⁸ While the intuitive idea could be that important issues are discussed and less important ones are not, in the case of the CRC, the element that distinguishes the issues discussed does not seem to be importance but controversiality. The more controversial an issue, the more it was discussed during the drafting – and the more likely it never found a place in the CRC. In contrast, the more the drafters assumedly agreed on an issue, the less need there was to discuss it, as in the case of best interests.