The child as an independent member of society

Prof. Dr Fabian Kessl on the Geneva Declaration, which recognised children's rights for the first time

In 1900, the Swedish reform pedagogue Ellen Key proclaimed the century of the child. From then on, many educators campaigned for children's rights. On 26 September 1924, the Geneva Declaration recognised children's rights for the first time. What were they granted back then?

Kessl : The Geneva Declaration is often cited as the beginning of the history of children's rights. In 1924, it primarily stipulated the protection of children, in that children should be guaranteed a certain standard of living. Specifically, it stated that children should be enabled to 'develop naturally' in material and spiritual terms. However, hardship should also be prevented, such as the hunger to which children can be exposed. The Geneva Declaration thus recognised that 'being a child' means something that is not unconditional. Rather, society must make childhood possible. The participating states in the League of Nations agreed on this in 1924. As important as the Geneva Declaration, which is now celebrating its 100th anniversary, was for the history of children's rights, it was not without a history. The first international agreements were concluded as early as the beginning of the 20th century, e.g. to combat the trafficking of girls or on guardianship.

However, the Geneva Declaration on the Rights of the Child had one major shortcoming. It had no legal basis whatsoever. Why not?

Kessl : On the one hand, there are reasons under international law, because the Geneva Declaration is, as the name suggests, a declaration and not a human rights treaty. We have only had this in relation to children's rights since 1989, when the United Nations General Assembly adopted the UN Convention on the Rights of the Child. However, a declaration such as that of 1924 does not have to be ratified and implemented, so it has more of a moral force. However, this and the symbolism of an international declaration should not be underestimated. With hindsight, we can see that 1924 was indeed a milestone that led, albeit almost a century later, to children's rights actually being enshrined internationally. This required the Geneva Declaration. It can be said that it was still legally weak, but at least 50 states had already signed this declaration at the time, thus emphasising the relevance of the issue of children's rights. That was historic.

The UN was founded in 1945. The Geneva Declaration expired with it and it was not until 1959 that the UN General Assembly once again adopted a Declaration of the Rights of the Child, but again without any legal binding force. How can this be explained?

Kessl : After the experience of German and European fascism, other issues were initially on the agenda in terms of international law. At the same time, it is important to remember that children's rights cannot only be considered on an international level. In the German case, we still do not have explicit children's rights enshrined in the Basic Law, but at the same time there have also been legal obligations to protect the welfare of children and to enable education and upbringing at national level since 1924. This parallelism should not be lost sight of. In 1924, not only was the Gender Declaration adopted internationally, but the Reich Youth Welfare Act was also enacted in the Weimar Republic. This not only made the protection of children's welfare legally binding, but also established the infrastructure of public youth welfare for the first time: Youth welfare offices were now to be set up at local authority level to support and monitor the upbringing of children on the part of the state. Historically, we are therefore dealing with parallel international and national processes.

After the Second World War, children's rights were expanded; in 1956 the assertion of maintenance claims abroad and in 1961 the Hague Convention, which regulated the jurisdiction of the authorities and the applicable law for the protection of minors. Why did it take so long?

Kessl: International agreements are lengthy and time-consuming. In addition, momentum is always needed to reach an agreement. At the time of the Weimar Republic, after the end of the First World War, there was such momentum. And to a certain extent, the same applies here at an international and national level: the enforcement of laws always requires historical preparation and laws are agreements that are only possible on the basis of social agreements. Historically, however, there is a field of tension: as early as the 18th century, there were representatives who saw the child as an independent member of society and emphasised this. Others, on the other hand, advocated an image of the child as a small adult or as an incomplete human being - and associated with this a certain traditional image of the family that emphasised the rights of parents alone. This struggle between different concepts of childhood can also be found in more recent history. At the same time, after 1945 and in the 1950s and 1960s, a new conservatism tended to prevail in society, which made it difficult for an emancipatory image of children to prevail. It was not until 1968 that there was a cultural upheaval in this context too, which allowed an image of the child in a position of equality to become more influential.

Corporal punishment was not banned across the board in Germany until 1983, and in the GDR it had been banned since 1949. Why didn't anyone dare to tackle this for decades?

Kessl : The educational ideas that prevailed at certain times are decisive for social debates about children's rights - including for those who represent political opinions and positions in parliament, in political parties and in professional associations. In the 1950s and 60s, the idea that corporal punishment was a necessary and legitimate sanction still prevailed. Parents had the right to chastise their children. This is also reflected in the fact that this right to chastise could even be transferred. If children lived in a children's home, for example, or in similar constellations, the parental right to chastise could be transferred to the educators and teachers there. This reflected the social consensus that corporal punishment of children was an appropriate means. This convention first had to be overcome and it often takes at least a generation to do so. In addition, the protection of the child is an old idea and historically this was also the driving force behind the discussion about children's rights and, in parallel, for national youth welfare policy. But for a long time, the idea that the protection of children was not only necessary outside the family, but also within it, was not accepted.

In 1989, 30 years after the first Declaration on the Rights of the Child came into force, the United Nations General Assembly adopted the Convention on the Rights of the Child. It is the most important international human rights instrument for children. How can you recognise that?

Kessl : It can be recognised above all by the fact that children's rights are now comprehensively set out in the UN Convention on the Rights of the Child. The protection of children continues to play a central role, but now also in a differentiated way, as protection against discrimination, as protection against violence - and also as protection against violence in a private context. However, this is only one of the issues covered by the UN CRC. Another crucial complex is that the UN CRC stipulates that favourable conditions must be provided for children to grow up. For example, access to infrastructure should be made possible, including access to media, access to educational facilities should be guaranteed and non-discriminatory. Last but not least, there is a complex of topics in which freedom rights, i.e. the right to opinion, assembly and religious freedom, are now also granted to children. The power and innovation of the 1989 Convention on the Rights of the Child lies in the totality of all these rights, as they are translated and concretised here as children's rights.

The Convention on the Rights of the Child now has three additional protocols. One of these concerns child trafficking, child prostitution and child pornography (Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography), expressly prohibits these and calls on states to prosecute this form of exploitation as a crime and make it a punishable offence. This additional protocol came into force in January 2002 with 32 signatory states; 176 states have already ratified it. However, 17 states are still missing. That's hardly bearable, is it?

Kessl : If you put it like that, it's a moral question. But if you also try to look at the facts scientifically and analytically, then you first have to realise relatively simply that the Convention on the Rights of the Child, as well as the additional protocols, are among the most ratified UN human rights treaties of all. We are dealing here with human rights treaties that have been ratified by more states than almost any other. It is also helpful to look at who has ratified them. We find global political players such as the United States, China, India, Brazil, Russia and all European states side by side. What is missing, however, are certain states such as North Korea. It would certainly be desirable for the convention to be ratified on a truly global scale, but I would first of all emphasise that it has already been ratified to a relatively large extent and has already developed a force that is difficult to ignore.

Mr Kessl, you yourself were a member of a commission of enquiry in Hamburg that drew up recommendations in 2019 to strengthen the protection and rights of children and young people in Hamburg. In your experience, what are the biggest hurdles in protecting children and their rights?

Kessl : One of the biggest hurdles is probably still the fact that when implementing the UN Convention on the Rights of the Child - including now - the relationship between children, parents and the state needs to be focussed on and, to a certain extent, re-discussed and re-regulated. That seems to me to be the most difficult point. For example, we need to look at the relationship between parental rights, the state's right to intervene and control parental education and child-raising activities, and children's rights. If you want to make changes here, it has very specific consequences. For my area, youth welfare, i.e. the whole area of youth work, educational support, school social work or family support, we would then have to ask ourselves: shouldn't the laws be based on the children? And what would that mean? How do you organise an infrastructure if you think about it from the children's perspective? How would state authorities be allowed to regulate what and when? Will the children's positions take priority, or will they remain those of the parents?

Children's rights are still not enshrined in the German constitution. This has a lot to do with the fact that the entire structure of how we think about society, from the family to the state to civil society, would be set in motion if we really took children's rights seriously. And that's where, among other things, the previous images of parenting keep popping up. So if I really want to pursue the idea that the child can be an equal partner, then this has radical consequences for families, schools and youth work. And that's not all: it's not enough to assume that the child has equal rights; the child must not be thought of as an adult with equal rights either. This is because children have different protection needs than adults and are vulnerable in a different way than adults. All of this must inevitably be taken into account, which opens up another area of tension.

At the time, we also discussed in the Hamburg Enquete Commission what it would mean to enshrine children's rights in the Basic Law. It is clear that this only makes sense if the consequences are also considered and addressed, and we are probably not yet at that stage socially. This is at least indicated by the fact that two coalition agreements have already flagged the implementation of children's rights in the Basic Law as a project, and yet this has not yet materialised. In addition, children themselves are only marginally involved in the discussion and decision on the anchoring of children's rights. To this day, it is mainly adults who are leading the relevant discussions. This is another area where we need to take another look.

Uwe Blass

Fabian Kessl studied educational science and political science at the University of Heidelberg and received his doctorate from the Faculty of Education at Bielefeld University in 2004. After ten years as a professor at the University of Duisburg-Essen, he has been teaching as a professor of "Social Pedagogy with a focus on socio-political foundations" in the School of Human and Social Sciences at the University of Wuppertal since 2018.