This chapter considers the role of rights in decisions concerning the health of children who are not yet competent to consent to their own medical treatment. The medical treatment of children is particularly contentious in cases involving disagreement between parents and medical professionals over the provision of life-sustaining treatment. These fraught disputes have often become a site of disagreement over the extent of parental freedom and state intervention in determining children’s best interests. Despite the obvious implications for the child’s own rights to life and bodily integrity, those rights rarely play an overt role in such decisions. A further area of contention is in the extent of parental discretion to consent to non-therapeutic intervention, such as tissue donation or circumcision. These decisions are again treated primarily as a matter of parental discretion; in practice, again the law is content to tolerate significant intervention without adequate protection for the child’s own rights.

It is well recognised in international children’s rights law that children have a right to participate in decisions concerning them. This chapter considers that right and the extent to which it is protected in domestic law. Many working within the family justice system are committed to improving children’s participation and there has been significant progress in including children in some decisions. This includes increasing judicial willingness to meet children, hear children’s evidence, grant them party status and allow competent young people to give direct instructions. Nonetheless, the system provided for representing children in family proceedings is extraordinarily complicated and the extent to which children are heard in practice varies considerably, particularly for children caught in private parental disputes. As a result, many children find that significant decisions are made about their lives without the opportunity for them to be heard or represented in the decision. Where children have been heard, the weight given to their views remains inconsistent and unpredictable, despite greater commitment in the higher courts to taking children seriously.

This chapter assesses the extent to which children’s rights are protected in domestic law. The heart of the problem for children’s rights in domestic law is that those international rights that are designed for children are not directly enforceable, while those rights that are directly enforceable have not been written for children. Further, the central place of the welfare principle in domestic child law has often been interpreted as being in conflict with a rights-based approach to children. Nevertheless, the Human Rights Act 1998 has been the vehicle for some real advances in protecting children, especially through the use of international instruments in interpreting its rights to be more effective for children. In the political sphere, children’s rights have gained greater influence, especially through the enhanced role of the Children’s Commissioner. This chapter assesses these developments and analyses the continuing weaknesses in the protection for children’s rights in law and policy.

The right to education is one of the most important rights for children, providing the foundation upon which the child’s future is built. The primary responsibility for ensuring that a child receives an education is that of the parents. That responsibility takes on particular significance in circumstances in which the convictions of the parents, or the child, are at variance with those held by the majority in society. The extent to which parents may insist that the child is educated in a way that conforms to parental values remains contentious. The law on the right to education has sought to find a balance between protecting pluralism and upholding the state’s right to run an efficient education system reflecting society’s shared values. The child’s own right to education has often been neglected in these debates. These concerns are considered with particular attention to home education, British values, religious worship and school uniform. A children’s rights approach would ensure that the children whose education is at stake are placed at the centre of a debate which is often dominated by tensions between parental freedoms and state interests.

This chapter charts the development of children’s rights in international human rights law. The centre piece of international children’s rights law is the United Nations Convention on the Rights of the Child (CRC). This chapter explores and assesses the content and principles of the CRC and its ability to remain effective in the modern law. Particular consideration is given to the implementation and enforceability of the CRC, including the development of the individual communications procedure. The chapter then turns to the European Convention on Human Rights (ECHR) and assesses the extent to which it has been able to respond to the development of international children’s rights. Through creative interpretation, the unpromising ECHR text has become a more effective means of protecting children’s rights. Nonetheless, the limitations of the text and the practical obstacles to litigation continue to hinder children who look to enforce its rights.

This chapter considers the child’s right to identity. It is for good reason that the Convention on the Rights of the Child requires that core aspects of a child’s legal identity are in place soon after birth. A legal identity secures the child’s place in society, nation and family, providing the foundations for the child’s sense of self and relationships with others. The fact that these crucial aspects of identity are put in place when the child is an infant means that particular care must be taken to ensure that the child’s interests are not lost; not least because adults often have powerful interests in the way in which a child’s identity is determined and recorded. This chapter considers the formation of a child’s legal identity through recognition of parenthood and the challenges posed by changing reproductive technology and social norms such as the growth of international surrogacy arrangements. Further, a child’s knowledge of their genetic origins and the circumstances of their birth may be important to their sense of self and personal identity. The extent to which the right to identity incorporates a right to knowledge of origins is also considered.

Building upon my previous account of the antecedents of statehood, this chapter establishes five procedural principles that further condition the emergence of new states. These principles can be split into two sets: those that establish means for state creation through which valuable politics can either be instantiated or enhanced, and those that either prohibit or restrict state creation through means that violate or disrupt political action. The first set comprises the 'recognition principle' and the 'referendum principle', which determine the legal salience of foreign recognition and independence referendums. The second set comprises the 'negative self-determination principle', the 'international peace principle', and the 'territorial integrity principle'. These three relate, respectively, to the international legal prohibitions against mass disenfranchisement and political subordination, the unlawful threat or use of force, and the violation of an established community's territorial integrity. These five principles provide a procedural framework for state creation, which, along with the antecedents of statehood, collectively comprise 'statehood as political community'.

This chapter develops an original account of political ethics, which details not only what it means to belong to a political community but also the normative contribution that politics makes to the lives of private individuals. Advancing discrete conceptions of authenticity and reasonableness, it discusses two fundamentally political duties that we owe to those who share our communities with us: duties that partly define our membership within those groups and inform the ethical value of politics as a discrete form of human activity. It also describes two ways in which politics enhances our ethical lives in instrumental terms, articulating a conception of political action that foregrounds its objective value. This argument forms the normative core of 'statehood as political community', the conception of state creation advanced within the first part of the overall text.

This chapter draws upon the normative resources of political community to construct an account of the 'antecedents' of statehood: the factual prerequisites that nascent entities characteristically must demonstrate in order to mount a plausible statehood claim. These antecedents, which will be familiar to doctrinal lawyers from sources such as the 1933 Montevideo Convention on the Rights and Duties of States, are: a permanent population, a relatively determinate territory, an 'effective' government, and some degree of governmental independence. In addition to grounding each antecedent within both historical and contemporary practice, this chapter demonstrates their coherence with the ethical value of politics, thereby reconstructing these elements of international law into a normatively coherent whole. Several aspects of this reconstruction will strike readers familiar with state creation as controversial. In particular, I advance a novel conception of governmental 'effectiveness' that turns upon the capacity of nascent states to facilitate ethically valuable political action.

The Introduction establishes the topic of the book - the creation of states in international law - as well as the method adopted when investigating that topic. It argues that doctrinal debates over state creation have become deadlocked as a result of the prevailing method of 'legal positivism' and that this approach, which focuses exclusively upon the factual provenance of putative laws, should be abandoned. Advocating a form of 'rational reconstruction', whereby the normative appeal of putative laws must be assessed alongside their provenance within international legal practice, it connects this method of law identification to the earlier 'Grotian tradition' developed by scholars such as Hersch Lauterpacht. To aid readers who might be unfamiliar with the details of international legal reasoning, an extended summary of the legal framework endorsed by the text is then presented, followed by a brief overview of the structure of the argument to follow.