{"id":2907,"date":"2025-04-24T10:42:31","date_gmt":"2025-04-24T08:42:31","guid":{"rendered":"https:\/\/www.okaju.lu\/100-joer-kannerrechter\/les-droits-humains-lenfant-et-la-justice\/"},"modified":"2025-04-28T12:39:52","modified_gmt":"2025-04-28T10:39:52","slug":"les-droits-humains-lenfant-et-la-justice","status":"publish","type":"page","link":"https:\/\/www.okaju.lu\/en\/100-joer-kannerrechter\/les-droits-humains-lenfant-et-la-justice\/","title":{"rendered":"Human rights, children, and justice"},"content":{"rendered":"\t\t
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Human rights, children, and justice<\/h2>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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J\u00f6rg Gerkrath<\/h6>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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After studying law in France (Montpellier I, Paris II, Strasbourg III), J\u00f6rg Gerkrath obtained a doctorate in law in 1996. He began his academic career at Robert Schuman University in Strasbourg before joining the Kulturwissenschaftliches Institut in Essen as a postdoctoral researcher in the \u2018Staatswerdung Europas\u2019 project. From his role as a lecturer in Strasbourg, he went on to become professor of public law at Avignon University in 2000. Since 2006, he has taught public and European law at the University of Luxembourg, where he specialises in European, constitutional, comparative and fundamental rights law. The author of works on European constitutional law and the case law of the Constitutional Court of Luxembourg, he also coordinates publications on the right of asylum and the revision of the Luxembourg Constitution. He is a member of the editorial board of the European Constitutional Law Review. <\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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Thoughts on the sources of children\u2019s rights, in particular the right to justice[1]<\/a><\/p>

Introduction<\/strong><\/p>

As we celebrate the centenary of the recognition of children\u2019s rights, it is worth looking back to understand better the spirit that shaped them.<\/p>

Like universal human rights, children\u2019s rights have their material sources in the philosophy of natural law. Inspired by the great Greek and Roman writers of Antiquity, who taught that human beings \u2013 endowed with reason \u2013 could deduce a certain number of natural laws from their observations of nature, the authors of the so-called Age of Enlightenment built a whole philosophical and legal system of human duties and rights derived from the laws of nature. This philosophy of natural law subsequently influenced the drafters of the first declarations of rights in America and France. Numerous correspondences testify to the direct impact that certain authors had on the drafters of declarations of rights in the eighteenth century[2]<\/a>. The reference to the \u2018pursuit of happiness\u2019 in the American Declaration of Independence can clearly be traced back to the writings of Vattel, for whom life, liberty and the pursuit of happiness were rights inherent in human nature that every civil society should protect.<\/p>

Although children\u2019s rights were thought to have been derived from natural law by philosophers such as Samuel de Pufendorf and Christian Wolff in the mid-eighteenth century, it took much longer for those rights to be enshrined in positive law.<\/p>

It was not until the twentieth century that children\u2019s legal status was enshrined, and their individual rights recognised. Today, the rights of the child are firmly anchored in several declarations covering both universal human rights and the specific rights of the child.<\/p>

Given that children\u2019s rights are also part of the broader context of human rights, their implementation necessarily requires a balance with the rights of others. In the context of justice, this means that the obligation to give primary consideration to the best interests of the child does not mean that children\u2019s rights automatically take precedence.<\/p>

The rights and obligations of children according to the philosophy of natural law of the seventeenth and eighteenth centuries<\/strong><\/p>

The philosophers and jurists belonging to the schools of natural law, in particular those of Swiss Romandy[3]<\/a>, set out primarily the duties of humans arising from natural law. Seeking to establish a coherent system of rules governing civil society, they reasoned in terms of rights, duties, obligations, responsibilities, accountability and discernment. In their search for the foundations of civil society, they contrasted Man\u2019s state of nature with his state as a member of civil society. For them, the transition from one to the other implied the respect of natural laws. Therefore, in civil society, the only duty of the government (the \u2018Leviathan\u2019, according to Hobbes, or the State) is to guarantee the freedom and happiness of all.<\/p>

Naturally, their reflections focused first and foremost on one\u2019s duties to oneself, to one\u2019s family, to civil society and to God. They shared the search for the foundations of any civil society, which they deduced from philosophical reflection on natural law. In their efforts to analyse natural law as a complete system of principles, institutions, rights and obligations, they also looked at the natural laws governing the smallest human society: the family.<\/p>

In a way, their ambition was to show that relations between the members of any society should be organised according to the same principles. For them, natural law, like other \u2018natural sciences\u2019, could be constructed scientifically[4]<\/a>. It was intended to be applied equally to the family, civil society and the society of nations. Natural law and the law of nations were not conceived as two distinct spheres.<\/p>

Within this limited framework, it will not be possible to give an account of all the richness of these philosophers\u2019 thought or to include all the relevant authors. We will therefore limit ourselves to citing the writings of Thomas Hobbes, Samuel von Pufendorf, Jean-Jacques Burlamaqui and Christian Wolff, available in French and, in the case of the latter, also in German. The excellent translations of their Latin manuscripts by Jean Barbeyrac, Samuel Sorbi\u00e8re and Samuel Formey give a clear idea of their agreements and disagreements on the subject.<\/p>

Thomas Hobbes (1588\u20131679) is probably best known for his Leviathan<\/em>, published in English in London in 1651. However, he wrote two other important works in Latin during his forced stay in France. De Cive<\/em>, published in Latin in 1642[5]<\/a>, was later translated by Samuel Sorbi\u00e8re and published in French in 1649 under the title Elemens philosophiqves du citoyen. <\/em>Traict\u00e9 politiqve, o\u00f9 Les Fondements de la Societ\u00e9 civile sont decouverts <\/em>(Philosophical Elements of the Citizen. Political treatise, in which the Foundations of Civil Society are Discovered)[6]<\/a>. In his preface, which he devotes in large part to the wickedness of humanity, he considers that \u201cIf you do not give children everything they desire, they cry, they get angry, they hit their nurses, and nature leads them to use it in this way. However, they are not to blame […] being deprived of the use of reason, they are exempt from all the duties of other men\u201d[7]<\/a>. He therefore makes allowances for their ignorance, which in a way exempts them from human obligations and from the consequences of their ignorance.<\/p>

Later, in the body of the work, he devotes another chapter to the subject of \u201cDu droict des P\u00e8res & des M\u00e8res sur leurs Enfants. Et du Royaume Patrimonial\u201d (\u201cOn the Rights of Fathers and Mothers over their Children. And of the Patrimonial Kingdom\u201d)[8]<\/a>. In it, he defends the idea that although a mother brings up her child, she is also the child\u2019s mistress and remains free to dispose of any children that belong to her.<\/p>

Hobbes continues this reasoning in a second work, entitled De Corpore politico<\/em>. According to him, \u201cWhether they are brought up by the father, by the mother, or by anyone else, children are therefore absolutely subject to the person who brings them up, or preserves them. They can even alienate them, meaning give up their domination, by selling them, or giving them up for adoption or servitude; they can give them as hostages, kill them for rebellion, or sacrifice them for peace, according to the laws of nature, when in their soul and conscience they deem it necessary to do so\u201d[9]<\/a>. As we can see, in Hobbes\u2019s very pessimistic view of human nature, a child who has no obligations does not have rights of their own. In this, he was quickly contradicted by other eminent thinkers of the time.<\/p>

Samuel Baron von Pufendorf (1632\u20131694) published an abridged version of his 1672 masterpiece in 1673[10]<\/a>. Entitled De officio hominis et civis<\/em> and translated by Jean Barbeyrac in 1707 under the title Les devoirs de l\u2019homme et du citoyen tels qu\u2019ils lui sont prescrits par la loi naturelle<\/em> (On the Duty of Man and Citizen According to Natural Law)[11]<\/a> Pufendorf devotes an entire chapter to the \u201creciprocal duties of a father & a mother & their children\u201d[12]<\/a>. He puts forward the idea that paternal power rests on natural law and on \u201cthe tacit consent of Children. For there is reason to presume that if a child had the use of reason when coming into the world, and could consider that, without the care of his parents and without the authority that this care requires, he would infallibly perish, he would willingly submit to their direction, on condition that, for their part, they undertook to give him a good education\u201d[13]<\/a>.<\/p>

Jean-Jacques Burlamaqui (1694\u20131748) stands out among the philosophers and jurists of the eighteenth century for having excelled in the clear and systematic presentation of the principles of natural law. Burlamaqui, who remained in the shadow of Jean-Jacques Rousseau, the other great \u2018citizen of the Republic of Geneva\u2019, is certainly the most original of the two and is often regarded as Rousseau\u2019s teacher. He was in poor health and published only one work during his lifetime. His Principes du droit naturel<\/em> (Principles of Natural Law) of 1747, a book compiled from his lecture notes at the University of Geneva, was a veritable sum of natural law that was to foreshadow a Syst\u00e8me complet sur le droit de la nature & des gens <\/em>(Complete System of Natural Law and the Law of Nations), which he never had time to write.<\/p>

Regarding the state of the family, Burlamaqui considers that, because of their weakness, children \u201care naturally subject to their Parents; & that Nature gives the latter all the authority & all the necessary power to govern those whose benefit they must procure\u201d[14]<\/a>. Parental authority is therefore neither absolute nor arbitrary. It must aim to provide the child with everything the child needs. Burlamaqui develops this idea in Chapter 7 dealing with \u2018Du Droit pris pour Facult\u00e9 & de l\u2019Obligation qui y r\u00e9pond\u2019 (On the Law as a Faculty and the Obligation that Responds to it\u2019. For him, right<\/em> and obligation<\/em> are \u201ctwo correlative terms, as the Logicians say\u201d. How, he asks himself, \u201ccould one attribute to a Father the right to train Children in wisdom and virtue, through a good education, without at the same time recognising that Children must submit to their Father\u2019s authority; and that not only are they obliged not to resist, but they must also contribute, through their docility and obedience, to the execution of the goals their father sets in relation to them?\u201d. The idea of a right to education was already underlying his work, as it was in that of Pufendorf. Burlamaqui reasons that although children will only have obligations once they have reached the age of reason and discernment, they are entitled to rights from birth. For example, he wrote, \u201cthe right to demand that no one mistreats or offends us belongs no less to children, and even to those who are still in their mother\u2019s womb, than to fully grown men\u201d[15]<\/a>.<\/p>

Christian Wolff (1679\u20131754) is probably the author who went the furthest in taking account of the child within the family. His Institutiones juris naturae et gentium<\/em>, published in Halle in 1750, was quickly translated into both French and German. The German translation, by Gottlob Samuel Nicolai in 1754, includes a chapter dedicated to paternal society[16]<\/a>. But far from discussing parental authority alone, he extensively develops the obligations of parents towards their children. In the French translation of 1758, we read that \u201cChildren naturally have the right to demand that their parents do not set them bad examples\u201d[17]<\/a>.<\/p>

Wolff goes so far as to consider that every parent of a child, whether natural or legitimate, must ensure the child\u2019s education. Each parent must contribute as much as they can. Following Wolff\u2019s logic, a society should be established between man and woman for the \u201cgeneration and education of children\u201d. This is a marital society[18]<\/a>.<\/p>

As we can see, the foundations for recognising children\u2019s rights are to be found in the philosophy of natural law. However, it was not until more than two centuries later that these rights were enshrined in positive law.<\/p>

Multiple sources of positive law in force<\/strong><\/p>

Today, in 2024, we can celebrate the first centenary of the recognition of children\u2019s rights at the international level. We have come a long way. We can even rejoice in the fact that numerous declarations, treaties, charters and conventions have enshrined children\u2019s rights as binding legal norms.<\/p>

However, this poses some challenges. Where there is a multiplicity of sources, there is also a need for coordination and conciliation. For those people, such as judges, who have to apply the current norms to a given case, there will often be questions about how exactly a recognised right applies, or even whether a treaty or charter is applicable in domestic law. Moreover, lawyers are well aware of the difficulties that can arise when multiple norms are likely to apply simultaneously while stating the right in question in different ways or allowing for divergent interpretations. That said, they also have enough imagination to arrive at a comprehensive application and ensure that interpretation is consistent in practice.<\/p>

The enshrinement of children\u2019s rights in specific legal documents also raises questions arising from the long-standing controversy around the difference between universal human rights and \u2018categorical rights\u2019, the enshrinement of which must be justified. Dani\u00e8le Lochak has made a very convincing contribution to this debate[19]<\/a>. She writes that: \u00a0<\/p>

a \u201ccategorical\u201d mode of enunciation appears in some cases to be a way of taking into account the vulnerability of certain groups in order to guarantee the true effectiveness of rights proclaimed as universal on a basis of equality. […] Thus, the recognition of children\u2019s rights in the 1989 Convention is a way of acknowledging their particular vulnerability in order to reaffirm, on the one hand, that they enjoy all human rights (the right to respect for private and family life, the right to a name and nationality, freedom of thought and religion, the right to health, the right to education…) and, on the other hand, that they must be granted the specific protection they need because of their minority (protection against violence, particularly sexual violence, ill-treatment, exploitation\u2026).[20]<\/a><\/p>

We can only agree with this approach, which is now clearly reflected in the relevant texts that have been adopted over the past century.<\/p>

From the nineteenth century onwards, children began to benefit from special protection. The first regulations were adopted at the national level in the fields of work, justice and education. However, it was not until the twentieth century that international texts covering all their rights were adopted.<\/p>

In 1919, the League of Nations set up a Committee for the Protection of Children. On 26\u00a0September\u00a01924, the Committee adopted the Declaration of Geneva[21]<\/a>, the first international text on the specific rights of the child. The text was inspired by the work of Janusz Korczak, considered to be the father of children\u2019s rights. Written by Eglantyne Jebb, this brief Declaration, composed of a preamble and five articles, states that men and women of all nations have a duty to respect child\u2019s right to have the means necessary for their development, to receive special assistance when needed, to be the first to receive aid, to have economic freedom, to be protected against exploitation and to have an education that instils social awareness and a sense of duty.<\/p>

The 1948 Universal Declaration of Human Rights accords a relatively modest place to the rights of the child. It states that \u201cmotherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection\u201d[22]<\/a>. Regarding the right to education, it adds that \u201cparents have a prior right to choose the kind of education that shall be given to their children\u201d[23]<\/a>.<\/p>

The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, on the other hand, contains no provision on children\u2019s rights[24]<\/a>. Although Article 8, insofar as it guarantees the right to a normal family life, does not contain any explicit procedural requirements, the European Court of Human Rights has ruled that the child must be sufficiently involved in decisions relating to his or her family and private life. The general principles, set out in the landmark Sahin v. Germany and Sommerfeld v. Germany judgments in 2003[25]<\/a>, were defined to ensure the child\u2019s right to be consulted and heard in order to protect the child\u2019s best interests. Depending on the age and maturity of the child, interviews with experts, who are then responsible for reporting back to the judge, may be considered sufficient.<\/p>

After the Second World War, a second Declaration of the Rights of the Child was adopted by the United Nations on 20 November 1959[26]<\/a>. Like the Universal Declaration of Human Rights, this declaration by the United Nations General Assembly is not legally binding.<\/p>

It was not until the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which were signed in 1966 and came into force in 1976 for those States that had ratified them, that international treaty provisions explicitly enshrined several children\u2019s rights. The International Covenant on Civil and Political Rights contains two provisions that provide protection for children, both in terms of public access to justice (article 14) and in terms of their protection in the event of the dissolution of their parents\u2019 marriage (article 23)[27]<\/a>. The major contribution comes from article 24 of the Covenant, which directly recognises the right of the child to have access, without any discrimination, \u201cto such measures of protection as are required by his status as a minor\u201d, the right to a registered name and the right to acquire a nationality[28]<\/a>.<\/p>

The Covenant adds two other provisions concerning the obligation of States to take measures to protect children \u201cfrom economic and social exploitation\u201d[29]<\/a> and to ensure \u201cthe reduction of the stillbirth-rate and of infant mortality, and for the healthy development of the child\u201d[30]<\/a>.<\/p>

The major step was not taken until 1989 with the adoption of the New York Convention on the Rights of the Child. This introduced the cardinal principle that \u201cin all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration\u201d[31]<\/a>. More specifically, this means that States Parties \u201cshall 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\u201d[32]<\/a>. The child must also be given \u201cthe opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body\u201d[33]<\/a>.<\/p>

More specifically, regarding the rights of the child \u201cin justice\u201d, article 40 sets out a number of obligations for State Parties. They recognise: the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child\u2019s respect for the human rights and fundamental freedoms of others and which takes into account the child\u2019s age and the desirability of promoting the child\u2019s reintegration and the child\u2019s assuming a constructive role in society[34]<\/a>.<\/p>

The Convention also mentions that States must ensure respect for the rights of the child in matters of justice, considering \u201cthe relevant provisions of other international instruments\u201d[35]<\/a>.<\/p>

This reminder is indeed useful, given the multiplicity of existing instruments designed to ensure that children can effectively enjoy the same rights as any other litigant has, in particular the rights of the defence.<\/p>

In the field of labour law, the International Labour Organization adopted the Worst Forms of Child Labour Convention in 1991[36]<\/a>, which called for the prohibition and immediate elimination of all forms of work that are likely to harm the health, safety or morals of children. Here, too, we can see that there is a concern with protecting children in all contexts.<\/p>

More recently still, the Charter of Fundamental Rights of the European Union reaffirms in its articles 14 (the right to education) and 24 (the rights of the child) the rights of the child as they result from the New York Convention. Under Article 24 of the Charter, children \u201cshall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity\u201d[37]<\/a>. In all actions concerning children, whether taken by public authorities or private institutions, \u201cthe child\u2019s best interests must be a primary consideration\u201d[38]<\/a>. Finally, every child has the \u201cright to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests\u201d[39]<\/a>. The value of the Charter lies in the fact that it benefits from the primacy of European Union law over the domestic law of the Member States. However, it is important to bear in mind that, unlike the Convention for the Protection of Human Rights and Fundamental Freedoms, the Charter is intended to apply only when the State is acting within the scope of European Union law.<\/p>

The new text of the Constitution of Luxembourg, which came into force on 1\u00a0July 2023, also incorporates the main principle of the Convention on the Rights of the Child, specifying in its new Article 15 that in any decision concerning the child, \u201cthe interests of the child shall be given primary consideration\u201d[40]<\/a>. Surprisingly, however, the interests of the child are not described as \u201cbest\u201d. At least the new text also recognises that every child \u201cmay express their views freely on any matter affecting them. Their views shall be taken into account, having regard to the child\u2019s age and understanding\u201d and that the child \u201chas the right to such protection, measures and care as are necessary for the child\u2019s wellbeing and development\u201d[41]<\/a>.<\/p>

However, regarding the Grand-Ducal succession, the same Constitution establishes direct discrimination between legitimate and illegitimate children. Article 56, paragraph 1 states that the office of Head of State \u201cis hereditary in the direct descendants of His Royal Highness Adolphe, Grand Duke of Luxembourg, Duke of Nassau, by order of primogeniture and by representation. Only children born of marriage have the right of succession\u201d[42]<\/a>. On this point, the Luxembourg Constitution clearly does not comply with the International Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, or the New York Convention. Insofar as the Grand Duchy scrupulously respects the primacy of ratified treaties over domestic law, we might expect some interesting legal debates. Is there any justification for such discrimination, or at least any legitimate interest that would require this derogation from a fundamental right?<\/p>

The need to balance children\u2019s rights<\/strong><\/p>

When considering the practical application of a specific human right in a given situation, it is inevitable that the legal issues of its scope, the restrictions that may be imposed on it (including the intrinsic limits of those restrictions) and the possible balancing of that right against the rights of others will arise. This applies to all rights that are not non-derogable, including the rights of the child in the 1989 Convention, with the notable exception of the prohibition of torture and cruel, inhuman or degrading treatment or punishment (article 37), which is non-derogable.<\/p>

In matters of justice, where several parties are likely to be able to assert interests worthy of protection or particular rights, it will thus be necessary to guarantee the rights and freedoms of each party. As children have a clear legal personality[43]<\/a>, they will be able to assert their rights \u2013 either personally, if they have the necessary discernment to do so, or through a representative, who will have the task of defending their rights. Adults will still make the decision on whether a child is mature enough to defend themselves, to testify or to take responsibility for their actions. It is therefore difficult to assume that no age-based discrimination will result in practice in specific cases.<\/p>

States that have ratified the various legal instruments mentioned above will be responsible for meeting both their positive obligations, including procedural obligations, and their negative obligations. In concrete terms, this means that they must put in place a set of legal rules designed to ensure in practice that the rights of the child are effectively respected by all stakeholders. The example of climate litigation teaches us that the best interests of the child can and must also mean that States currently have an obligation to protect the rights of future generations in the face of climate change and environmental protection. Any inaction or ineffective measures taken will therefore be contrary to the best interests of the child, because this will pass the burden of combating climate change and adapting to that change to the future generations to which the child belongs[44]<\/a>.<\/p>

The question of respect for children\u2019s rights within the justice system will arise in different ways depending on the child\u2019s status in the system. Whether a child is involved as a witness, defendant, civil party, victim, litigant or claimant obviously changes the child\u2019s status and, therefore, the extent of the child\u2019s rights and duties. Some of these statuses have already been analysed in depth, while others have attracted less attention from researchers and experts[45]<\/a>.<\/p>

The rights of the child may then be recognised as having what is known as a horizontal direct effect (Drittwirkung<\/em> in German). This means that these rights can be invoked against other people involved in a given procedure. While the State must ensure that children\u2019s rights are respected, the same applies to any other natural or legal person, private or public. The special vulnerability of children in relation to institutions and adults should always be borne in mind.<\/p>

Whether a child is considered to be the victim or the alleged perpetrator of an offence or a crime, the objective of protecting the child must always be weighed against that of protecting the victims. The rights of any litigant must therefore be interpreted and applied in the light of the principle of the best interests of the child.<\/p>

Setting an age of criminal responsibility that takes account of a child\u2019s degree of discernment at the various stages of development is certainly necessary in the interests of legal predictability and security. The existence of such a legal age should not, however, prevent the judge from assessing in concreto<\/em> the degree of discernment of a juvenile offender.<\/p>

The concept of the best interests of the child is therefore likely to be complex and often difficult to implement. The 1959 Declaration on the Rights of the Child already referred to the principle, stating that \u201cthe best interests of the child shall be the paramount consideration [in the enactment of laws for this purpose]\u201d and \u201cthe guiding principle of those responsible for his education and guidance\u201d[46]<\/a>. It can be considered that the Convention on the Rights of the Child \u201cextends the principle of the best interests of the child to \u2018all\u2019 decisions affecting them. This is a radical turning point\u201d[47]<\/a>.<\/p>

The concept is nevertheless difficult to grasp. The different language versions of the Convention on the Rights of the Child are a proof of this. The German version refers to the \u201cWohl des Kindes\u201d (\u201cWelfare of the Child\u201d), while the French version is concerned with the \u201csuperior interest of the child\u201d (\u201cl\u2019int\u00e9r\u00eat sup\u00e9rieur de l\u2019enfant\u201d). It is easy to see that these terms do not necessarily have the same meaning.<\/p>

While this concept naturally leaves a wide margin of interpretation, its scope is general. The United Nations Committee on the Rights of the Child went even further, defining the best interests of the child as a \u201cgeneral principle\u201d to guide the interpretation of the Convention as a whole[48]<\/a>.<\/p>

The use of the word \u201cchildren\u201d in the plural form in the first line means, according to the interpretation of the Committee on the Rights of the Child, that the article is applicable both to a particular child and to groups of children or children in general, thereby increasing its relevance in terms of policy guidance and action while allowing for targeted application in individual cases.<\/p>

The idea that the interests of the child are \u201csuperior\u201d[49]<\/a> can in no way mean that the rights of the child systematically take precedence over the legitimate interests or fundamental rights of others. Interpreted in the light of the principle of the \u201cbest interest\u201d of the child, the normative clauses of the Convention gain both clarity and depth. It is also clear that the principle of the best interests of the child cannot be invoked to justify a violation of the child\u2019s rights.<\/p>

However, the Convention does not determine what, in a given situation, is in the best interests of a child. It is conceivable, for example, that child labour may be justified in certain situations, in particular to help meet the needs of the whole family, as long as this does not prevent access to education.<\/p>

The implementation of this concept will necessarily be delicate in terms of justice. It requires a whole series of precautionary measures concerning communication with the child and how they are treated by the bodies and staff involved. Good cooperation between the police, justice and child protection services will be crucial in this respect. It must also be ensured that the people who will be dealing with the child are trained.<\/p>

The conventional concept of the child now grants children a new legal status. Their actual capacities are taken into account, as well as the need to grant children evolving responsibilities and freedoms. The child is recognised as a legal person in their own right, whose own interests must be \u201cdiscovered\u201d in order to be protected.<\/p>

In matters of justice, the primary task of ensuring that the best interests of the child have been taken into account will ultimately fall to judges. Read in the light of this principle, Articles\u00a012 and 40 tell them what is in the child\u2019s best interests and what is not. The purpose of Article\u00a012 is not to leave all powers to the child, but to ensure that the child is consulted and involved in the decision-making process.<\/p>

What is meant by making this \u201cbest\u201d interest \u201ca primary consideration\u201d? In practice, it will be necessary to carefully weigh up the various interests involved. But how do we strike the right balance when one child\u2019s interests conflict with those of other children?<\/p>

The Convention does not lay down precise norms on how to assess the best interests of the child. This principle should be understood as defining a procedural requirement: the obligation for decision-makers to verify, before any decision is taken that has an impact on a child or a group of children, whether the proposed solution is compatible with the best interests of the child, after the child has been heard.<\/p>

Because children are no longer legally incompetent, they must be able to defend their rights personally before the courts; and it is children, rather than their parents, who will be liable for any abuses they may commit in the exercise of those rights. Children may express their opinion on any matter concerning them[50]<\/a>, for example, in divorce proceedings, parentage, educational assistance, guardianship or emancipation. However, Article 12 does not require the decision to be taken in accordance with the wishes expressed by the child. The child may intervene directly or through a representative. But who listens to the child: the judge or a third party? Should the child be left alone to express their views, or should they be given a spokesperson? If so, should it be a lawyer or should a new profession of \u2018mediator-representative\u2019 be created?<\/p>

These are the many questions that the legislator or judge will have to find answers to. Positive legal texts, international instruments in particular, provide them with some guidance. Legislators can also draw inspiration from the writings of natural law philosophers. Indeed, positive law must continually be judged against the yardstick of natural law, which serves as our frame of reference and awareness of truly \u2018just\u2019 law.<\/p>

Footnotes<\/h3>

[1]<\/a> Written text of the opening speech given on 17 July 2024 at the OKAJU summer seminar on the current challenges of children\u2019s rights; see: https:\/\/www.summerseminar.lu.<\/span><\/p>

[2]<\/a> We know that the ideas developed by Emer de Vattel in his Droit des Gens<\/em>, republished posthumously in 1775 by Charles Guillaume Fr\u00e9d\u00e9ric Dumas, directly influenced the authors of the United States Declaration of Independence. Cf. Brian Richardson, \u201cThe Use of Vattel in the American Law of Nations,\u201d The American Journal of International Law <\/em>106, no.\u00a03 (July 2012): 547\u2013571. Dumas and Hamilton exchanged some very interesting letters on this subject.<\/span><\/p>

[3]<\/a> Emer de Vattel, Jean-Jacques Burlamaqui, Jean Barbeyrac and Jean-Jacques Rousseau.<\/span><\/p>

[4]<\/a> In this regard, see: Heinrich Mitteis, \u00dcber das Naturrecht<\/em> (Akademie Verlag, 1948), 6.<\/span><\/p>

[5]<\/a> Thomas Hobbes, Elementorum Philosophi\u00e6: sectio tertia; de cive<\/em> (n.p., 1642).<\/span><\/p>

[6]<\/a> Thomas Hobbes, Elemens philosophiqves du citoyen<\/em> (chez Jean Blaev, 1649).<\/span><\/p>

[7]<\/a> Editor\u2019s note: Unless otherwise specified, translations are based on the French version of the article.<\/span><\/p>

[8]<\/a> Hobbes, Pr\u00e9c\u00e9d\u00e9<\/em>, 157.<\/span><\/p>

[9]<\/a> Thomas Hobbes, \u201cDe Corpore Politico,\u201d chap.\u00a023, \u00a7\u00a08, in \u00c9l\u00e9ments de loi<\/em>, trans. Arnaud Milanese (Allia, 2006), 149.<\/span><\/p>

[10]<\/a> Subsequently translated into French by the tireless Jean Barbeyrac, Baron de Pufendorf, Le droit de la Nature et des Gens; ou Syst\u00e8me g\u00e9n\u00e9ral des principes les plus importans de la morale, de la jurisprudence, et de la politique<\/em>, 2nd ed. (chez Pierre de Coup, 1712), 2 vols.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/span><\/p>

[11]<\/a> Samuel Pufendorf, Pufendorf: On the Duty of Man and Citizen According to Natural Law<\/em>, trans. M. Silverthorne, ed. James Tully (Cambridge University Press, 1991).<\/span><\/p>

[12]<\/a> Baron de Pufendorf, Les devoirs de l\u2019homme et du Citoyen, tels qu\u2019ils lui sont prescrits par la Loi Naturelle<\/em>, 6th ed., trans. Jean Barbeyrac (chez Henri-Albert Gosse, 1748), 273.<\/span><\/p>

[13]<\/a> de Pufendorf, Les devoirs<\/em>, 274.<\/span><\/p>

[14]<\/a> Jean-Jacques Burlamaqui, Principes du droit naturel<\/em> (chez Barrillot & Fils, 1748), 46.<\/span><\/p>

[15]<\/a> Burlamaqui, Principes<\/em>, 80\u201384.<\/span><\/p>

[16]<\/a> Christian Wolff, Grunds\u00e4tze des Natur \u2013 und V\u00f6lkerrechts worinn alle Verbindlichkeiten und alle Rechte aus der Natur des Menschen in einem best\u00e4ndigen Zusammenhange hergeleitet werden<\/em>, trans. G.S. Nicolai (Rengerische Buchhandlung, 1754), 648: \u201cVon der v\u00e4terlichen Gesellschaft und v\u00e4terlicher Gewalt<\/em>\u201d (\u201cOn paternal society and paternal violence\u201d).<\/span><\/p>

[17]<\/a> Christian Wolff, Principes du droit de la nature et des gens. Extrait du grand ouvrage latin de Mr. De Wolff. Par Mr. Formey<\/em>, trans. Samuel Formey (chez Marc Michel Rey, 1758), 226, 229.<\/span><\/p>

[18]<\/a> Wolff, Principes<\/em>, 628\u2013629: \u201c[\u2026] so m\u00fcssen die, welche ein Kind zeugen, dasselbe auch erziehen [\u2026] Da zur Erziehung so wohl der Mutter, als des Vaters Sorge und Flei\u00df erfordert wird; so muss ein jeder zur Erziehung des Kindes so viel beytragen, als er kann<\/em>.\u201d (\u201c[\u2026] those who father a child must also bring it up [\u2026] Since the upbringing of a child requires the care and diligence of both mother and father, each must contribute as much as they can to the upbringing of the child\u201d).<\/span><\/p>

[19]<\/a> Dani\u00e8le Lochak, \u201cPenser les droits cat\u00e9goriels dans leur rapport \u00e0 l\u2019universalit\u00e9,\u201d Revue des Droits de l\u2019Homme<\/em>, 3 (2013): 1\u201310.<\/span><\/p>

[20]<\/a> Lochak, \u201cPenser,\u201d 1\u201310 [translated from French].<\/span><\/p>

[21]<\/a> League of Nations, Geneva Declaration of the Rights of the Child (1924), http:\/\/www.un-documents.net\/gdrc1924.htm<\/a>.<\/span><\/p>

[22]<\/a> G.A. Res. 217 (III) A, Universal Declaration of Human Rights (10 December 1948), art.\u00a025 \u00b6\u00a02.<\/span><\/p>

[23]<\/a> G.A. Res. 217\u00a0(III)\u00a0A, art. 26 \u00b6 3.<\/span><\/p>

[24]<\/a> Convention for the Protection of Human Rights and Fundamental Freedoms (4\u00a0November\u00a01950), CETS\u00a0005.<\/span><\/p>

[25]<\/a> Sahin v. Germany, 30943\/96, \u00b6\u00a072\u201374, Eur. Ct. H.R. (2003); Sommerfeld v. Germany, 31871\/96, \u00b6\u00a070, \u00b6\u00a072, Eur. Ct. H.R. (2003).<\/span><\/p>

[26]<\/a> G.A. Res. 1386\u00a0(XIV), Declaration on the Rights of the Child (20\u00a0November\u00a01959).\u00a0<\/span><\/p>

[27]<\/a> G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights (16 December 1966), arts.\u00a014 and 23.<\/span><\/p>

[28]<\/a> G.A. Res. 2200A\u00a0(XXI), art.\u00a024.<\/span><\/p>

[29]<\/a> G.A. Res. 2200A\u00a0(XXI), art.\u00a010 \u00b6\u00a03.<\/span><\/p>

[30]<\/a> G.A. Res. 2200A\u00a0(XXI), art.\u00a012 \u00b6\u00a02.<\/span><\/p>

[31]<\/a> G.A. Res. 44\/25, Convention on the Rights of the Child (20 November 1989), art.\u00a03.<\/span><\/p>

[32]<\/a> G.A. Res. 44\/25, art.\u00a012, \u00b6\u00a01<\/span><\/p>

[33]<\/a> G.A. Res. 44\/25, art.\u00a012, \u00b6\u00a02.<\/span><\/p>

[34]<\/a> G.A. Res. 44\/25, art.\u00a040.<\/span><\/p>

[35]<\/a> G.A. Res. 44\/25, art.\u00a032.<\/span><\/p>

[36]<\/a> International Labour Organization, Worst Forms of Labour Convention, 17 June 1999, no. 182, UNTS 2133, 161.<\/span><\/p>

[37]<\/a> O.J. 2000 C 364\/3, Charter of Fundamental Rights of the European Union, art.\u00a024, \u00b6\u00a01.<\/span><\/p>

[38]<\/a> O.J. 2000 C 364\/3, art.\u00a024, \u00b6\u00a02.<\/span><\/p>

[39]<\/a> O.J. 2000 C 364\/3, art.\u00a024, \u00b6\u00a03.<\/span><\/p>

[40]<\/a> Constitution du Grand-Duch\u00e9 de Luxembourg, 1 July 2023, art. 15.<\/span><\/p>

[41]<\/a> Constitution du Grand-Duch\u00e9 de Luxembourg, 1 July 2023, art.\u00a015.<\/span><\/p>

[42]<\/a> Constitution du Grand-Duch\u00e9 de Luxembourg, 1 July 2023, art.\u00a056 \u00b6\u00a01.<\/span><\/p>

[43]<\/a> Cf. Patricia Buirette, R\u00e9flexions sur la Convention internationale des droits de l\u2019enfant<\/em> (RBDI, 1990), 54.<\/span><\/p>

[44]<\/a> Cf. the judgments of the European Court of Human Rights of 9 April 2024 in the cases of Klimaseniorinnen v. Switzerland and Duarte Agostinho v. Portugal and 33 other States.<\/span><\/p>

[45]<\/a> As for young people in conflict with the law, see the excellent publication by OKAJU: Charel Schmit, Fanny Dedebbach, Renate Winter, and Siliva Allerezza, eds., Jeunes en conflit avec la loi et droits de l\u2019enfant. <\/em>Acquis et futurs d\u00e9fis pour le syst\u00e8me de justice<\/em> (OKAJU \u00e9ditions, 2022), 297.<\/span><\/p>

[46]<\/a> G.A. Res. 1386\u00a0(XIV), principles\u00a02 and\u00a07.<\/span><\/p>

[47]<\/a> Thomas Hammarberg, \u201cLe principe de l\u2019int\u00e9r\u00eat sup\u00e9rieur de l\u2019enfant: ce qu\u2019il signifie et ce qu\u2019il implique pour les adultes,\u201d Journal du Droit des Jeunes<\/em> (March 2011): 10.<\/span><\/p>

[48]<\/a> Hammarberg, \u201cLe principe\u201d: 11.<\/span><\/p>

[49]<\/a> Editor\u2019s note: for the purpose of the translation into English, given that the text was written in French, we can consider that the author intended to use the term \u201csuperior\u201d, even if the appropriate translation in the legal framework in English would be \u201cbest\u201d.<\/span><\/p>

[50]<\/a> G.A. Res. 44\/25, art.\u00a012.<\/span><\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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