15 US-China L. Rev. 1 (2018)

handle is hein.journals/uschinalrw15 and id is 1 raw text is: 




US-China Law Review, January 2018, Vol. 15, No. 1, 1-17
doi: 10.17265/1548-6605/2018.01.001



        Theoretical and Normative Foundation of Child Rights*



                                             Uchenna Emelonye
                       Office of the United Nations High Commissioner for Human Rights, Liberia


      Based on the conceptual appreciation of human rights as explicitly normative, this paper sets out the philosophical
      and normative foundation of human rights as a basis for extrapolating the philosophical and normative foundation
      of child rights. It views human rights as those broadly recognized fundamental global standards of morality that
      inhere in human beings by virtue of their humanity and which are normatively instituted. Predicated on the
      argument that child rights share a philosophical heritage with human rights, child rights are construed to be those
      rights that are normatively established and are specifically and affirmatively applicable to children because of their
      age, level of mental development, inherent vulnerability, and mitigated culpability.

      Keywords: child rights, juvenile justice, theory, foundation


                              Philosophical Foundation of Child Rights

     The philosophical foundation of child rights is very contestable. Langlois's (2009; 2002) postulated that
there are several philosophical foundations of human rights which could be stretched to apply to the
philosophical foundation of child rights. Although the classical philosophical divides of human rights may not
specifically speak to child rights, the latter could be extrapolated from the general philosophical foundations of
human rights. There is no gainsaying the fact that since child rights are an integral component of human rights,
the philosophical foundation of child rights is essentially linked to the broad philosophical foundation of human
rights (Bunch, 1990; Binion, 1995).
     There are several philosophical foundations of law that present distinct and most times interrelated
heritage of human rights. They include the natural law, positive law, sociological, Marxism, realism,
utilitarianism, and historical and anthropological foundations. While all of these theoretical foundations have
bearing on the conception of law in general and human rights in particular, they are not uniformly relevant to
the universalist conception of child rights. Consequently, this paper will not explore all the available theoretical
foundations of human rights but will focus on those deemed very useful in extrapolating the theoretical
foundation of child rights and also essential in illuminating and contextualizing the philosophical preferences of
this paper.1

                                                Natural Law

     There are various strands of natural law with their theoretical underpinning based on the existence of a


 Acknowledgement: This paper is written in a personal capacity and does not represent the views of the United Nations.
 Uchenna Emelonye, Dr., country representative, Office of the United Nations High Commissioner for Human Rights, Liberia.
 This article excludes the review of the historical and anthropological foundations of human rights because they are amongst
 other things based on the inner conscience of the people and somewhat opposed to the universal application of human rights in
 general and child rights in particular.

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