The Sovereignty of Children in Law
Editor: Farhad Malekian and Kerstin Nordlöf
Date Of Publication: Mar 2012
The system of the United Nations, as well as many international and regional bodies, imposes various duties on states that consequently have obligations towards the rights of their individuals. This is particularly significant in the case of children who are not only considered one of the most valuable subjects of international regulations, but are also an integral part of the legislation of domestic laws. Despite the fact that laws concerning the rights of children are well settled in the international sphere, and are recognized under the jus cogens norms, national laws about children, or national laws having an effect on children, are still not completely adequate. Many legislative and cultural practices expose the fact that children are not recognized as the holders of rights. National legal authorities should not, in accordance with the existing international legislations, plead provisions of their own laws or deficiencies of those laws in response to a request against them for alleged violations of children’s rights that have occurred under their jurisdiction. In fact, the absence of appropriate legislation within national legal systems and the reluctance of legal authorities to seriously take children’s rights into consideration, have been two of the key reasons for the contraventions of children’s rights in national or international conflicts. Strange as it may seem, when we do not respect the rights of others, it might be considered a civil violation or a crime. But when the rights of children are violated it has, on many occasions, been dismissed as custom or argued that they gave their express consent. For example, in the nineties, when a child of 11 was raped in Sweden, the judgment concluded that there was an implicit consent. Similarly, when a child of seven was raped by an Iranian priest in a Mosque, it was judged as the victim receiving spiritual enlightenment. By analogy with the rules which exist to provide legal, social and economic aid to the victims of national or international crimes, it may be possible to suggest that there is an established legal duty for all states to provide access to resources which can, under reasonable criteria, protect children from the improper conducts of individuals, organisations, and the administration of justice.
It is, in principle, true that literally millions of people believe that children are their property or that a child has no rights of his or her own, and thus the conduct of parents, guardians, representatives of organisations, and the administration of justice relating to children are permitted as a matter of law or nature. This book examines many different areas within the law which deal with the specific rights of children such as the philosophy of law, civil law, social law, tax law, criminal law, procedural law, international law, human rights law and the humanitarian law of armed conflict. The intention is to show that there are many rules, provisions, norms, and principles within various areas of the law that relate to the rights of children. The extent of these rights implies the existence of certain regions of law which have to be acknowledged and respected by national authorities. However, the acknowledgement of rights is also a matter of intention, and may be implied or expressed by the practice of authorities. The question of the child constituting a self-ruling subject of justice and its legal ability to create an independent individual legal personality for the protection of its rights, but not necessarily for the exercise of those rights, are the central issues of this book.
Distinguished Visiting Professor Farhad Malekian is the founder and director of the Institute of International Criminal Law, Uppsala, Sweden. He was already in the twentieth century “recognized as leader” and one “of the most distinguished publicists in the field of international criminal law who has significantly contributed to the advancement of world community values and expectations” (Over A Century of Dedication to Criminal Justice and Human Rights; Crimes Against Humanity, Cherif Bassiouni, 1997, 1992). Malekian is the author of outstanding “major treatises” (Ohio State University), a considerable number of books and articles which have been an integral part of reading literature in different universities. He is known for his enthusiastic lectures and “dynamic presentations” (Cornell Law School, 2005).
Professor and Dr of Laws Kerstin Nordlöf is a distinguished leading authority in defending children’s rights in the Nordic countries and an expert in criminal and criminal procedure law in Sweden. Her research interests also include international law and social law, with a particular focus on children’s rights before the criminal justice system. She is engaged in questions about the trafficking of women and children. Nordlöf has also been an adjunct judge in the Court of Appeal in Stockholm.
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Sample pdf (including Table of Contents)