Geraldine Van Bueren, The International Law on the Rights of the Child
Fordham International Law Journal
Copyright c 1995 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Geraldine Van Bueren, The International Law
on the Rights of the Child
Roger J.R. Levesque
ARON BROCHES, SELECTED ESSAYS: WORLD BANK ICSID
AND OTHER SUBJECTS OF PUBLIC AND PRIVATE
Reviewed by Victor Essien*
With the possible exception of international peace and
security, global economic development has been the dominant
theme in international law and international relations since the
end of the Second World War.' The tenor and intensity has
varied over the decades, but the objectives, centering on
institutional arrangements and programs to promote the global
economy, have remained the same.
The institutional arrangements started with the twin
organizations of the Bretton Woods Conference2 and the International
Bank for Reconstruction and Development 3 ("IBRD"), popularly
known as the World Bank and the International Monetary Fund
("IMF").4 While the IMF has been charged with regulating the
international monetary system,5 IBRD's operations have
concentrated on financing for global economic development.6 The
IBRD created the International Finance Corporation7 ("IFC") in
* LL.B.(Hons.) 1973, LL.M. 1976, University of Ghana, LL.M. (Int'l), 1982, J.S.D.,
1955 and the International Development Association' ("IDA") in
1960 in order to enlarge its risk capital portfolio and provide less
burdensome loans.9 The IBRD further launched its dispute
settlement institution by creating the International Centre for the
Settlement of Investment Dispute10 ("ICSID") in 1965 and the
Multilateral Investment Guarantee Agency 1 ("MIGA") in 1988.
These instruments attempt to foster security in international
Apart from MIGA, which was created more recently, Aron
Broches was intimately connected with the formation of each of
the institutions associated with the IBRD. In the case of ICSID,
Broches is frequently referred to as its creator. 3 Broches'
collection of essays, originally written between 1957 and 1992, attests
to his intimate knowledge of the workings of the IBRD and its
related agencies. In addition to providing both the history and
the jurisprudential analysis of these institutions, these essays
constitute a discourse on public as well as private international law.
They contribute, moveover, to a progressive development of the
international law of foreign investment.
This book contains twenty-five essays and is divided into six
parts: (1) the International Bank for Reconstruction and
Development; (2) Registration of Treaties and International
Agreements; (3) the International Center for the Settlement of
Investment of Disputes; (4) International Commercial Arbitration (5)
Investment Disputes; and (6) a section devoted to miscellaneous
The lead essay in Part I is titled "International Legal Aspects
of the Operations of the World Bank." Written in 1959, it was
originally published as part of the courses on international law
given at the Hague Academy.14 Its pedagogical value is at once
perceptible. In a sense, it reads like a course on public
international law using the World Bank as a case study. It touches on
the subjects of, among other things, international law,
statehood, sovereignty, international personality, international
organization, treaty-making capacity, and the registration of
treaties. 1 5
In this essay, the analysis of the term "international
personality" is most instructive. He takes to task those writers like
Oppenheim16 and Lauterpacht 7 who, when at pains to distinguish
between states and international organizations, claim that States
are entities that possess "full, perfect and normal" international
personality while international organizations have less than full
international personality.' 8 In response, Broches flatly states
that "[t]here seems to be no need for gradations in
personality."19 International personality is a quality that an entity either
does or does not possess. Therefore, if an entity possesses
international rights and can act on the international plane, then it is
an international person.20
According to Broches, the World Bank is an international
person. He arrives at this conclusion applying the reasoning of
the International Court of Justice ("ICJ") in the Reparationfor
Injuries Suffered in the Service of the U.N., 1 when the court had to
decide on the international personality of the United Nations
("U.N."). In this case, the ICJ ruled that the U.N .Charter had
conferred on the organization a complex bundle of rights and
obligations where it was impossible to operate "except on the
international plane and as between parties possessing
interna14. ARON BROCHES, SE LECTED ESSAYS: WORLD BANK, ICSID AND OTHER SUBJECTS OF
PUBLIC AND PRIVATE INTERNATIONAL LAW 3 (
16. See 1 LASSA F.L. OPPENHEIM, INTERNATIONAL LAW, A TREATISE 117-18 (1955).
Oppenheim asserted that a "full sovereign state" is an international person, while a
"not-full sovereign state" is only subject to international law in a limited capacity. Id.
17. SIR HERSCH LAUTERPACHT, THE FUNCTION OF LAW IN THE INTERNATIONAL
COMMUNITY 166 (1966). "The Sovereign State does not acknowledge a central executive
authority above itself." Id.
18. BROCHES, supra note 14, at 16.
20. Id. at 22.
21. 1949 I.C.J. 174 (Apr. 11) (advisory opinion).
tional personality." 22 By the same token, Broches argues that the
Articles of Agreement establishing the World Bank conferred on
the Bank certain rights and obligations. "The Bank, being.., a
subject of international law .... it possesses international
Part I, Chapter Two discusses how the activities of the World
Bank have influenced the development of international law.
This chapter also details the creation of the IFC, the IDA, and
the ICSID.24 With regard to establishing these organizations,
Broches explains that the Bank acted outside of its day to day
operations in order to sponsor the establishment of new
Part I, Chapter Three covers the role of the World Bank in
international transactions. It reflects the missionary zeal with
which Aron Broches undertook his work at the Bank and also
the way the World Bank sees itself in the international
investment process. Essentially, in the relationship between
capitalexporting developed countries and capital-importing developing
countries, the World Bank sees itself as a neutral facilitator
working towards bringing the two parties together in a financially
sound and mutually rewarding partnership.26
Part II addresses the registration of treaties and
international agreements. Article 102 of the U.N. Charter requires the
registration of all treaties and international agreements entered
into by any Member State and provides sanctions for
non-compliance. 27 Broches, after considering the practice of the World
Bank with respect to registration pursuant to Article 102,
concludes that the Bank has not registered any agreements other
than loan and guarantee agreements and related documents.28
Broches then examines the attitude of the ICJ and its failure
to address treaty non-registration by reviewing five cases where
the issue of registration should have been raised but was ignored
by the Court in their resolution of the disputes. 29 These cases
are the Corfu Channel Case,3" The Asylum Case,"1 the Case of the
Monetary Gold removed from Rome in 1943 ,32 The Anglo-Iranian
Case,31 and the Electricitede Beyrouth Case.34 Based on this review,
Broches concludes, first, that the Court will not apply the
penalty of Article 102(2) to every instance of non-compliance with
the mandate of registration 3 and, second, that none of the
instances in which the Court permitted unregistered or belatedly
registered agreements to be invoked violated the spirit of Article
102.36 The better view, of course, is that the non-compliance of
the Article 102 mandate has never been the ratio decidendi of any
known ICJ case.
In truth, this issue has never really been before the ICJ.
Consequently, there is no indication of how the Court would
apply the Article 102(2) sanction. As the 1994 postscript to this
essay indicates, the position of the law on these issues has not
changed since 1957, when the article was first written.
Part III is devoted to the ICSID. In ten essays, Broches
dissects this dispute resolution institution and delves into the
provisions of the Convention on the Settlement of Investment
Disputes Between States and Nationals of Other States3 7
("Convention"), which formed and governs the ICSID. He discusses,
among other things, jurisdiction, applicable law and default
procedure, arbitration clauses versus institutional arbitration, case
studies of ICSID arbitrations and the finality of ICSID awards.
Several of the essays reprise the question of the jurisdiction
of the ICSID. Broches emphasizes that consent is the
"cornerstone of the jurisdiction of the centre"3a and that consent must
be given by both parties and in writing. Using the Report of the
Executive Directors ("Report") that accompanied the text of the
Convention3 9 as travaux preparatoires, Broches delves into the
29. Id. at 130-58.
30. 1949 I.CJ. 244 (Dec. 15) (judgment).
31. 1950 I.C.J. 266 (Nov. 20) (judgment).
32. 1954 LCJ. 19 (june 15) (preliminary question and judgment).
33. 1952 I.CJ. 93 (July 22) (preliminary objection and judgment).
34. 1953 I.C.J. 41 (Oct. 20) (order).
35. BROCHES, supra note 14, at 144.
37. Convention, supra note 10, 17 U.S.T. at 1270, 575 U.N.T.S. at 159.
38. BROCHES, supra note 14, at 168.
39. Report of the Executive Directors on the Convention on the Settlement of
meaning and significance of Article 25(1) of the Convention.4"
He suggests that the context of Article 25(1) indicates that one
of the parties to the dispute must be a Contracting State and the
other a national of another Contracting State.41 In other words,
private versus private and state versus state disputes are excluded
from the jurisdiction of the ICSID. Furthermore, the non-state
party must be a "national of another Contracting State."42
Article 25(2) (b), however, provides an exception for
juridical persons that, by reason of requirements of local
incorporation, may be nationals of the state party to the dispute. In such a
situation, it maymeet the jurisdictional requirements if the state
party to the dispute had agreed to treat it as a national of
another Contracting State because of foreign control.43
In discussing jurisdiction ratione materiae, Broches sheds
light on what Article 25(1) defines as a "legal dispute arising
directly out of an investment." Broches confides that during the
negotiations surrounding the formation of the Convention, the
drafters considered and rejected several definitions of
"investment." Ultimately, the drafters decided to dispense with a
definition for "investment" because it would be taken care of by the
consensual nature of the jurisdiction."
The Report also indicates that the legal dispute must involve
a "conflict of rights" as opposed to a "conflict of interests." In
addition, "[t]he dispute must concern the existence or scope of
a legal right or obligation, or the nature or extent of the
reparation to be made for breach of legal obligation."45 Broches
exInvestment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 4
I.L.M. 524, 524-32 [hereinafter Report].
40. Convention, supra note 10, art. 25(1), 17 U.S.T. at 1280, 575 U.N.T.S. at
Article 25(1) states:
The jurisdiction of the Centre shall extend to any legal dispute arising directly
out of an investment, between a Contracting State (or any constituent
subdivision of agreement of a Contracting State) and a national of another
Contracting State, which the parties to the dispute consent in writing to submit to
the Centre. When the parties have given their, consent, no party may
withdraw its consent unilaterally.
41. BROCHES, supra note 14, at 167.
43. Id. at 168.
44. Id. at 208.
45. Report, supra note 39, 4 I.L.M. at 528; BROCHES, supra note 14, at 208.
plains how the parties give their consent and notes that a
consent once given cannot be unilaterally withdrawn. 46
Broches further explains that, under the Convention, the
home country of the investor may not invoke diplomatic
From the legal point of view, the most striking feature of the
convention is that it firmly establishes the capacity of a private
individual or a corporation to proceed directly against a State
in an international forum, thus contributing to the growing
recognition of the individual as a subject of international
After a closer study of Convention Article 27,11 which deals with
invocation of diplomatic protection, Broches concludes that the
Article does not operate as a permanent bar to diplomatic
protection and that it may be revived if the Contracting State fails to
abide by and comply with an award in favor of the investor5. 0
Furthermore, it is within the rights of the investor's home state
to engage in informal diplomatic exchanges in order to facilitate
the settlement of a dispute. 5 1
In discussing applicable law, Broches distinguishes between
procedural and substantive law.5 2 With respect to the
procedural law, Broches takes the view that the Convention, being a
treaty, constitutes the lexfori55 and as such excludes the
applicability of any national la loi de l'arbitrag5e4 except where the
Convention specifically refers to it.55
On the question of the applicable substantive law, Broches
points out that unlike the procedural law provisions, which are
scattered throughout the Convention, only Article 42 deals with
substantive law.56 Article 42 acknowledges the party autonomy
principle. In the absence of an agreement by the parties,
however, the law of the Contracting State party, including its rules
on conflict of laws and relevant rules of international law, will
With regard to the question of the hierarchy between
international and national law within the context of Article 42,
Broches concludes that international law is superior to national
law.58 This conclusion, however, is arrived at through a
self-contrived analytical process. Broches asserts that an arbitral tribunal
will first look to the law of the host state and that state law will, in
the first instance, be applied to the merits of the dispute. The
result will then be tested against international law to determine
whether or not it violates international law. If it does, then the
substantive law will not be applied.59
While Broches argues that the Report supports his position
with regard to the supremacy of international law in this realm,6 °
in actuality, the Report does not contribute to this contention.
Neither the text of the Convention nor the Report provide a
hierarchy of national and international law. Rather, this is a
position that has worked its way through as a result of ICSID case
law, and, in particular, the decision of the first ad hoc
Committee in Klockner et al. v. The United Republic of Cameroon6.1 Klockner,
which interprets Article 42 of the Convention, states that rules of
international law are given a dual role to complement and
correct state law.6" Subsequent ICSID decisions have relied on
Klockner on the issue of hierarchy of norms.6"
Broches discusses the finality of ICSID awards in the last
chapter of Part III. Admittedly, Broches wrote this piece in
response to the slew of criticisms that greeted the annulment
proceedings in Klockner, Amco Asia Corp. v. Republic of Indonesia6,4
and MINE v. The Republic of Guinea6." While Broches is quick to
point out that the annulment proceedings have been instituted
in only three out of the twenty-four disputes submitted to ICSID
arbitration,6 6 his criticisms, nevertheless, predicted the
breakdown of the ICSID system.
In examining the sections of Article 52 that provide for the
annulment remedy, Broches notes that: Section 52(1) (b)
addresses violations of the excess of power provision; Section
52(1) (d) permits a request for annulment where there are
serious departures from fundamental rules of procedure; and
recovery for failure to state reasons is found under section 52(1) (e). 67
Broches discusses how each of the annulment proceedings have
treated these issues and concludes, reassuringly, that the ICSID
annulment process is "on track"6 8 and will fulfill the limited
purposes for which it was established. He reckons that there is no
basis for the position that the finality of awards is taking a back
seat to annulment.69
Part IV deals with international commercial arbitration.
Here, Broches flirts with other arbitral fori, in particular, the
U.N. Commission on International Trade Law ("UNCITRAL")
system. In Part IV, Chapter Sixteen, Broches undertakes what he
calls a "superficial treatment" of other arbitration conventions
and makes suggestions for their improvement.70 Then in Part
IV, Chapter Seventeen, Broches gives a detailed account of the
1985 UNCITRAL Model Law on International Commercial
Arbitration.71 His discussion is steeped in the legislative history of
UNCITRAL'S model law. He first tells of the Commission's
choice to work toward a convention, a uniform law, or a model
65. ICSID Case No. ARB/84/4.
66. BROCHES, supra note 14, at 309.
67. Id. at 311-33.
68. Id. at 352.
70. Id. at 363.
71. Id. at 375-432. In Part IV, Chapter Seventeen Broches focuses his discussion
on the development, adoption, and effect of the Model Law on Commercial
PUBLIC AMD PRIVATE INTERNATIONAL LAW
law and how the Commission eventually settled on a model law.
Broches then discuses a comment made in one of the working
sessions about the difficulty of unifying procedural law.7" While
this concept may be true as a matter of general proposition,
Broches argues that it does not apply to the law of arbitration.
He notes that in arbitration national traditions, such as the
differences between common law and civil law jurisdictions, play a
relatively minor role.7"
It is also in this section where Broches delves into a
discussion of features of the model law including competence,
conduct of proceedings, rules applicable to substance of dispute,
setting aside, recognition, and enforcement of arbitral awards."4
He then ends on his characteristicly optimistic evaluation of the
model law and praises Canada for being the first country to
adopt federal legislation based on the model law.75
Part V deals with investment disputes. Part V, Chapter
Nineteen shows the link between arbitration of investment
disputes and the plethora of bilateral investment protection treaties
that have evolved between capital importing and capital
exporting countries. The remaining three chapters discuss the
regional perspectives to the investment dispute settlement process.
One of the issues first highlighted here is the promotion of
pacific settlement of investment disputes through such instruments
as multilateral and bilateral conventions, guidelines, draft codes
of conduct, and U.N. resolutions in the area of economic
Broches explains that the use of these various instruments is
reflective of the differing viewpoints on the subject. The 1967
OECD Draft Convention on the Protection of Foreign
Property,77 for example, aims to assure the security and protection of
foreign investment. 78 This draft convention served as the basic
model for the bilateral investment treaties. 79 The OECD was to
follow this in 1976 with its Guidelines for. Multinational
Enterprises.8" In addition, there were the various U.N. resolutions on
foreign investment, beginning with the more conciliatory 1962
Resolution on Permanent Sovereignty Over Natural Resources8'
and ending with the hotly contested 1974 Charter of Economic
Rights and Duties of States. 2 Between these polarities lies the
Draft United Nations Code of Conduct for Transnational
Corporations.8" As Broches notes, this Draft Code reached an impasse
on account of the lack of agreement with respect to the
treatment of transnational corporations, and he predicts that even
when concluded, this Code is not likely to be anything but a soft
law much like the OECD Guidelines. 4
In Part VI, which he classifies as miscellaneous, Broches
ironically puts the rest of the essays in their natural context, the
context of development. In Chapter Twenty-Three he writes
about the dimensions of development. Originally written in
1973, the themes he sounds still resonate with equal clarity and
fidelity. He chastises the international community for having
failed to improve the quality of life of its poorer and weaker
members. The reasons he offers for this state of affairs are
sobering. He writes:
[W]e failed to meet adequately the moral obligations
accepted in all civilized societies since the beginning of time,
the obligations of the strong to help the weak. These moral
obligations which international law is moving, however
slowing and painfully, to recognize as legal obligations, exist not
only between rich and poor societies, but also between any
given society and its poor members.85
In the end, Broches challenges his audience, the membership of
the International Law Association, then meeting in Brussels in
August 1973, to take up the task of rectification. He asked them,
"to help create the conditions for economic and social progress,
with dignity and in freedom, remembering that the ultimate
ob80. Id. at 500.
81. GA. Res. 1803, U.N. GAOR, 17th Sess., Supp. No. 17, at 15, U.N. Doc. A/5217
82. GA. Res. 3821, U.N. GAOR, 29th Sess., Supp. No. 31, at 50, U.N. Doc. A/9631
83. U.N. Doc. E/1990/94 (1990).
84. BROCHES, supra note 14, at 503. Regulations promulgated by the OECD are
considered "soft law" because they have no binding force.
85. Id. at 514.
ject of law is the welfare of mankind."86
The subject of development is addressed again in Chapter
Twenty-Four, this time in relation to one of the principal actors
in global development: the multinational corporation. This
essay begins with a discussion about the appropriateness of the
term "multinational corporation." Broches states flatly that
"from a lawyers' point of view the term ...has... no validity."87
His reason is that "there is no corporation that is created and
exists under the law of more than one state."88 From an entity
theory perspective89 this position is incontrovertible. From an
enterprise theory perspective, 90 however, a corporation can exist
under the law of more than one state. Better still, more than
one state might assert legislative competence over a
corporation." Although Broches, in 1974, could not foresee a
"multinational control or regulation" of foreign investment as a
realistic possibility,92 in 1995 it is believed to be inevitable that
multinational corporations or transnational enterprises are subject
to some form of international regulation.93
In this section Broches also refers to and comments on the
issues raised by the Group of Eminent Persons appointed by the
United Nations to report on "Multinational Corporations in
World Development."94 Moreover, Broches touches upon the
unequal bargaining position between the foreign investor and
the developing countries in negotiating the entry of investment.
He believes that strengthening the bargaining capacity of host
countries is in the interest of both the investor and the host
country, and that inequitable agreements are strictly
non-viable. 95 To clarify, it appears that Broches meant to describe the
inequalities between parties with regard to the negotiating skills
or bargaining skills, not bargaining positions. In fact, the
bargaining positions of the various sides to the investment process
are bound to be unequal.96
In addition to bargaining skills, there are other factors that
may affect the position of each party at the negotiating table. As
Smith & Wells, in their seminal book, Negotiating Third World
Mineral Agreements9 point out, bargaining positions tend not
only to be unequal but also to be dynamic. 98 For the developing
host country, this may depend on the quantity and global
availability of national resources, the amount of control it wants in the
investment, whether it desires downstream or upstream
integration, and other localization concerns.99 For the foreign investor,
their bargaining position will be influenced by the importance
of the technology to be transferred, its financial resources, its
managerial resources, the investor willingness to share control of
the investment, and how the particular investment relates to the
investor's overall goals.100
Broches next draws attention to the need for review of long
term development contracts. Apparently, Broches' advice has
been heeded by development lawyers, as renegotiations are now
a regular feature in most development contracts. 10 1 Broches
then raises the problem of transfer pricing but mixes his
discussion with the issue of host country participation in
joint-ventures. 10 2 Ultimately, it is difficult to say what his "interesting
approach to a solution" relates to.10 3
When Broches waltzes into the realm of extraterritorial
application of U.S. legislation to U.S. owned subsidiaries abroad, it
becomes obvious that he is out of his league. Again his
ments are strictly based upon an entity theory'0 4 and are
innocent of the growing extraterritorial application of antitrust
legislation, securities legislation, tax legislation, and an enterprise
doctrine 10 5 that is embraced with different degrees of
enthusiasm in the developed world.
Fortunately, Broches promptly returns to arbitration and
dispute settlement where his brilliance shows once again.
Essentially, this is a book about arbitration and dispute settlement,
with its history told and explained by one who was present at its
creation. Broches puts international arbitration into both the
contexts of private and public international law. Even though
we may disagree with him on occasion, there is a lot of passion
and scholarship displayed in his two decades of writing.
104. See supra note 89 (defining entity theory).
105. See supra note 90 (defining enterprise theory).
GERALDINE VAN BUEREN, THE INTERNATIONAL LAW ON
THE RIGHTS OF THE CHILD
Reviewed by RogerJ.R. Levesque*
A great deal of ambition and optimism characterizes the
current international children's rights movement. The
sentiments are well justified; nothing short of a revolution is taking
place. A prominent sign of this revolution is the almost
universal ratification of the United Nations Convention on the Rights
of the Child.' This Convention recognizes and seeks to ensure a
series of substantive and procedural rights, making it the most
comprehensive United Nations human rights treaty in force.2 In
addition to enumerating the entire range of civil, political,
economic, psychological, social, and cultural rights of children, the
Convention proposes a series of important, perhaps even
radical, guiding principles. When nations design and implement
policies affecting children and their families, they now must
consider the children's best interests,' take into account individual
children's evolving capacities,4 and respect and ensure the
inherent dignity of all children.5
* Assistant Professor of Criminal Justice, Indiana University, J.D., Columbia School
of Law, 1993; Ph.D., University of Chicago, 1990. Part of the funding for writing this
Book Review has been provided by Columbia University School of Law.
1. Convention on the Rights of the Child, Nov. 20, 1989, U.N. GAOR, 44th Sess.,
Supp. No. 49, at 1, U.N. Doc. A/RES/44/25 (1989), 1992 Gr. Brit. T.S. No. 44 (Cm.
1976) [hereinafter UNCRC].
2. No other international human rights document reaches the comprehensiveness
of the United Nations Convention on the Rights of the Child. For a compilation of all
major U.N. international treaties, see HUMAN RIGHTS: A COMPILATION OF
INTERNATIONAL INSTRUMENTS, U.N. Doc. ST/HR/i/Rev. 5, U.N. Sale No. E.94.XIV.1 (Vol. I)
3. The best interests standard affects other children's rights. See, e.g., UNCRC,
supra note 1, arts. 9, 21, 37, U.N. Doc. A/RES/44/25, at 6, 10-11, 17, 1992 Gr. Brit. T.S.
No. 44, at 5, 8, 12. For a thorough examination of this standard, see THE BEST
INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS (Philip Alston ed.,
4. This is perhaps the most radical aspect of international children's rights.
Although it is explicitly stated in Article 12, its focus on allowing children to participate
in decisions that affect them effects most rights enumerated in the Convention.
UNCRC, supranote 1, art. 12, U.N. Doc. A/RES/44/25, at 8, 1992 Gr. Brit. T.S. No. 44,
5. This standard, of course, is a fundamental aspect of human rights law: the
promotion of human dignity; UNCRC, supra note 1, 2nd pblr para. See Roger J.R.
Levesque, Sexual Use, Abuse and Exploitation of Children: Challenges in ImplementingChildren's
Human Rights, 60 BROOK. L. REv. 959, 997 (
) [hereinafter Implementing Children's
These developments are truly remarkable and momentous.
They essentially make one demand. Simply stated, the
international children's rights movement asks individual governments
to take children's interests seriously when enacting laws for
them. In order to enact policies that take children's interests
seriously, all laws must be evaluated and examined from the
child's point of view.6
An examination of the current international children's
rights movement from the child's point of view, however, reveals
considerable schisms between international principles and the
state of the world's children.' Indeed, in several instances,
children are in much greater peril than they were before the
children's rights movement blossomed.' The gap between rhetoric
and reality illustrates the need to move beyond examining broad
legal mandates and lofty principles. This discrepancy forces
each nation to examine their existing laws and to focus their
energies on implementing children's rights in a manner that truly
protects children's interests.
If the proper standard to evaluate the international
children's rights movement is the extent to which it encourages
countries to take children's interests seriously and the extent to
which it provides an adequate guide for reform, then a text
examining international law should be evaluated by a similar
stanHuman Rights]. "Ifconsensus exists among nations, it is that the official doctrine
underlying the international law of human rights is in principle universal and is based on
human dignity." Id. See generally Gary B. Melton, Socialization in the Global Community:
Respect for the Dignity of Children, 46 AM. PSYCHOLOGIST 66 (1991).
6. This task is much more difficult than it may appear. Indeed, taking children's
interests seriously often means enacting somewhat "radical" policies. See generally Roger
J.R. Levesque, ProsecutingSex Crimes Against Children: Time For "Outrageous"Proposals?2,0
L. & PSYCHOL. REV. (forthcoming Spring 1995) (proposing that current child
protection system is doomed to continued failure because of its inability to approach child
protection "from the child's point of view"); Roger J.R. Levesque, The PeculiarPlace of
Adolescents in the HIV-AIDS Epidemic: UnusualProgress& Usual Inadequaciesin "Adolescent
Jurisprudence," 27 Loy. U. CHI. L. J. (forthcoming 1996) (attributing failure to address
dramatic increase in adolescent HIV-AIDS cases to inability to respect adolescents'
needs and ensure that adolescents' perspectives are taken into account when decisions
are being made on their behalf).
7. See UNICEF, The State of the World's Children (
). "The State of the
World's Children" is the title used by UNICEF's yearly report of progress in ensuring
children's rights. Id.
8. See Implementing Children'sHuman Rights, supra note 5, at 959-60 (citing
examples which indicate that despite initial optimism, there are signs that children's rights
are not being taken seriously).
dard. More specifically, a text examining children's rights in
international law should detail existing international principles,
should document the disparity between current law and
international standards, should address needed reforms, and should
never lose sight of the reality of children's situations. While
there are several texts examining children's rights,9 only
Professor Van Bueren's The InternationalLaw on the Rights of the Child'°
has attempted this complex task. Given the challenges facing
such an endeavor, Professor Van Bueren's text is simply
Professor Van Bueren directly examines the complex issues
involved in defining and understanding children's rights. Her
analysis of formal international law relating to the rights of the
child is invaluable and would stand on its own. The text,
however, does more than meticulously detail the rights of children
in international law as enshrined in U.N. documents. Van
Bueren also explores how other international fora and different
countries are struggling with children's rights, both in theory
and in practice. Those interested in international children's
rights as they are applied in different countries will welcome the
elusive citations. This research is useful for exploring critical
principles and themes as well as future trends and obstacles in
children's rights. These citations also indicate the immense
progress in recognizing children's rights.
The InternationalLaw on the Rights of the Child is a text of
mammoth proportions, containing fourteen well researched
chapters. The first three chapters are devoted to examining the
international children's movement 1' and defining the place of
children in international law, both in terms of legal definitions
of children 2 and in terms of children's rights and their relation
9. See generallyJo BOYDEN & PAT HOLDREN, CHILDREN OF THE CITIES (1991); THE
IDEOLOGIES OF CHILDREN'S RIGHTS (Michael D.A. Freeman & Philip E. Veerman eds.,
1992); PHILIP E. VEERMAN, THE RIGHTS OF THE CHILD AND THE CHANGING IMAGE OF
CHILDHOOD (1991); CHILDREN, RIGHTS AND THE LAW (Philip Alston et al. eds., 1992);
THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: A GUIDE TO THE
"TRAvAUX PREPARATOIRES" (Sheron Detrick et al. eds., 1992); OLGA NIEUWENHUYS,
CHILDREN'S LIFEWORLDS: GENDER, WELFARE AND LABOUR IN THE DEVELOPING WORLD (
Guy GOODWIN-GILL & ILENE COHN, CHILD SOLDIERS: THE ROLE OF CHILDREN IN ARMED
10. GERALDINE VAN BUEREN, THE INTERNATIONAL LAw ON THE RIGHTS OF THE CHILD
11. Id. at 1-116.
12. Id. at 32-66.
to the rights of other family members."i The middle chapters
explore children's substantive rights. 4 The last chapter
documents organizations and treaty implementing bodies that have
taken it upon themselves to ensure children's rights.' 5
Although all of the chapters are highly informative, several
deserve highlighting. The discussion ofjuvenile justice' 6 is
especially outstanding. Professor Van Bueren does more than detail
the rights ofjuveniles under the Convention. She also examines
how the rights are embodied in other international instruments,
particularly guidelines detailing the international community's
approach to juvenile crime. In addition, she details existing
conflicts between international instruments and state practices, and
emphasizes the need for reform.1 7
The discussion of the status of a child within the family is
also exceptionally thorough. It attests to the breadth of
international law as well as the need to examine its implementation.',
For example, the rights of children are examined in several
cases, ranging from adoption in India' 9 to cases before the
European Commission of Human Rights2" and the European Court
of Human Rights. 2' In addition, the analyses introduce us to
important international agreements addressing children's rights,
including: the African Charter on the Rights and Welfare of the
Child,'2 2 separate Hague Conventions dealing with child
abduction 25 and adoption,2 4 the European Convention on the
Adoption of Children,25 the European Convention on Human
Rights, 6 and the International Convenant on Civil and Political
The InternationalLaw on the Rights of the Child, however, is
much more than an outstanding resource and thorough
examination of children's rights. The text urges one to imagine a
world in which children's interests come first. Envisioning such
a world is rather difficult and the obstacles to implementing
policies to reach that end are staggering. Primary among these
obstacles are the need for tremendous resources, the need to
recognize positive rights, the need for adequate research to guide
implementation efforts, and the general societal will to consider
reforms.2 8 In addition, there is the need to combat deep societal
prejudices against children and the need to resist projecting
adult feelings, thoughts, and attitudes
onto childhood. 29
world in which children's interests are the primary concern is
difficult to envision. It often results in a perilous and
controversial path,"° yet it is the path that the international children's
rights movement urges all nations to take.
Regrettably, there is one serious charge which can be levied
against Van Bueren's otherwise impressive text. While the text
describes the laws that will set the stage for the future of
children's rights, it fails to directly address the nature
"postmodern world."3 '
The emergence of the postmodern children's rights
movement has coincided with somewhat radical challenges to all
aspects of existence and established worldviews3 2 This common
emergence should not be seen as a mere coincidence. To a
large extent, it is precisely because of postmodern criticisms of
prevailing worldviews and entrenched social institutions that the
children's rights movement has gained so much momentum. 3
Yet, Professor Van Bueren's text generally lacks a healthy
criticism of law itself. For example, the text fails to question the
ability of legal mandates to ensure children's rights,3 4 to analyze
some possible gaps in international children's rights,3 5 to
address internal conflicts facing the children's rights movement, 6
32. See RogerJ.R. Levesque, The Internationalizationof Children'sHuman Rights: Too
Radicalfor American Adolescents?, 9 CONN. J. INT'L L. 237, 237-38 (
Children's Human Rights] (detailing birth of children's right movement as coinciding
with emergence of "new world order").
33. Although this change has been awkwardly characterized as a shift to a
postmodern view of the world, exactly what the "postmodern" view of the world is has
been a subject of debate and criticism. If anything, debate and criticism are the
hallmarks of the postmodern world. See generallyJorge.Larrain, The Postmodern Critiqueof
Ideology, 42 Soc. REv. 219 (
). For general discussions of the "postmodern" world,
see STEVEN CONNOR, POSTMODERNIST CULTURE (1989); DAVID HARVEY, THE ORIGIN OF
34. History is replete with laws enacted for children's interests that backfire and
fail to take into account changing social conditions. See, e.g., Failures of Foster Care
Reform, supra note 28, at 13-22 (detailing failure of well-designed legislative scheme).
35. In this regard, it is important to note that the notion of evolving capacities
seemingly does not trouble Professor Van Bueren. VAN BUEREN, supra note 10, at 3-5.
She argues, for example, that "denying that children are capable of exercising entire
categories of rights is too simplistic." Id. at 5. Professor Van Bueren's claim that
children can participate to the extent of their abilities seems on target. Unfortunately,
there is no discussion of what such participation would do to the notion of"rights;" she
does not discuss the possible ramifications of taking an "evolving capacities" approach.
For example, Article 12 focuses on giving weight to a child's views, consistent with that
child's age and maturity. UNCRC, supranote 1, art. 12, U.N. Doc. A/RES/44/25, at 8,
1992 Gr. Brit. T.S. No. 44, at 6. This focus on evolving capacities could be troublesome.
For example, does it follow that if they do not have "capacity" their views and voices will
be ignored? Thepossibility of a positive answer is not far-fetched. A leading
commentator of children's procedural rights has argued that "this would seem to indicate that a
teenager's views would be of greater weight than those of an infant .... This approach
seems to give less attention to the younger child." Leonard P. Edwards & Inger J.
Sagatun, Who Speaks for the Child?, 2 U. CHI. L. SCH. ROUNDTABLE 67, 72 (
generally Elizabeth S. Scott et al., EvaluatingAdolescent Decision Making in Legal Contexts,
19 L. & HUM. BEHAV. 221 (
) (discussing notion of capacity as empirical and legal
issue and emphasizing need to expand narrow approaches to determining capacity).
36. Indeed, there are at least five distinguishable children's rights movements.
RogerJ.R. Levesque, InternationalChildren'sRights Grow Up: Implicationsfor
AmericanJurisprudenceand DomnesticPolicy, 24 CAL. W. INT'L L. J. 193, 193 n.3 (
) (detailing five
and to predict further developments in children's rights.3 7
If postmodern theorists have taught us anything, it is that we
need to question and criticize that which seems most
self-evident. Those concerned with children's rights would therefore
benefit from listening closely-to emerging critiques of those laws.
This critical posture remains of utmost significance; the
children's rights movement is replete with instances in which
children's situations were worsened in the name of their rights. 38
In addition to heeding the lessons of postmodernists, a look
at children's current life circumstances should be revealing. It
should be clear by now, despite continued commentaries to the
contrary, that legal rules cannot by themselves spur societal
rechildren's rights approaches that are currently being advocated and noting that
international movement arguably adds sixth voice). Partly because of the different
approaches, conflicts between who, or what, is to ensure children's rights has yet to be
clearly articulated. These different approaches center around disputes about the
proper role of the international community, nation states, local communities, families,
parents, and, neither last nor least, children in ensuring that children's rights are taken
seriously. The most controversial approach is one which seeks to ensure children's
right to self-determination and participation in decisions affecting them. See, e.g.,
George W. Bohrnstedt et al., Adult Perspectives on Children'sAutonomy, 45 PUB. OPINION
Q. 443, 444-60 (1981) (examining children's right to autonomy in areas of: education,
privacy, appearance, religion, economics, sexual conduct, access to media, political
participation and public responsibility, and social participation, and concluding that
diversity, pluralism and heterogeneity permeated their results).
37. Professor Van Bueren notes, for example, that a backlash against children's
rights seems imminent. VAN BUEREN, supra note 10, at 25. Yet, she fails to assist the
effort to combat the backlash. Professor Van Bueren simply ends her discussion of the
right of the child to freedom of thought, conscience, and religion by noting that "the
family is likely to become a major testing ground for the success or failure of
international human rights law in the next century." Id. at 163. Despite a comprehensive
analysis of current law and recognizing its centrality to children's human rights,
Professor Van Bueren fails to discuss how child, parent, and state conflicts might be resolved.
In all fairness, however, given that her discussion is one of the first to examine
these children's issue from an international perspective, this criticism is somewhat
undue. Even commentators writing about more established children's rights have failed
to explore adequately disagreements and concerns. "Kiddy libbers," for example, aim to
liberate children from the hold of parent's and state's powers. Their general claim is
that children's autonomy should be dictated by their "evolving capacities." See Martha
L. Minow, The Role ofFamilies in Medical Decisions, 1991 UTAH L. REv. 1 (1991)
(advocating for allowance of capable minors to make abortion decisions without parental or
judicial intervention). Such analyses, however, run counter to deeply held societal
perceptions. Although this is not to propose that kiddy libbers are theoretically off-track,
the extent to which they will succeed necessarily turns on their ability to address
38. Children'sHuman Rights, supra note 31, at 286 n.243 (listing examples of child
welfare reforms that need to be undone).
form.39 If children themselves are to be taken seriously, there
must be more than legal reform. Societal reform must be
coupled with a massive infusion of public resources.4 °
These limitations of The InternationalLaw on the Rights of the
Child, however, are excusable. Instead of championing a single
approach to children's rights, Professor Van Bueren seeks to
present a balanced, thorough examination of current
international law and representative states' practices. As such, her book
serves as a powerful presentation .of the international
community's new approach to children and families. The text is an
exceptional documentary of a momentous shift in international
law, which has finally recognized the legal personhood of
children.4 1 The text reveals how the international community is
taking this shift seriously, through an increasing willingness to
support, and if necessary, intervene in the everyday lives of peoples
of all nations.4 2 These are incredible developments. The
InternationalLaw on the Rights of the Child clarifies this new approach to
international law while detailing the areas that will need to be
contested if children's rights are to be implemented and taken
39. For example, courts have limited power to combat strong community
sentiments and foster social change. See generally GERALD N. ROSENBERG, HOLLOW HOPE:
CAN COURTS BRING ABOUT SOCIAL CHANCE? (1991).
40. This is not to say that Professor Van Bueren fails to recognize the need for
political will. Unfortunately, the recognition comes in the last paragraph of her text.
VAN BUEREN, supra note 10, at 413. This is where another discussion should begin.
41. This recognition goes beyond granting children procedural rights.
International law now actually recognizes that children have a right to an identity. VAN
BuEREN, supra note 10, at 117-27 (discussing this new right in international law).
42. Id. at 106. International law is no longer law between nations, international
law now, for example, aims to intervene in family life. Id. (noting reconceptualization
of areas of legitimate international legal protection for individual family members).
"International law provides the global community with the power to intrude and
impose internationally recognized human rights standards." Implementing Children's
Human Rights, supra note 5, at 998. But that is only the first step.
1985, New York University, Member, Ghana and New York Bars, International Law Li-
Assistant , Iran-U.S. Claims Tribunal , The Hague, The Netherlands, 1986 ; Consultant,
United Nations Centre for Transactional Corporations , 1989 - 1992 . 1 . EvAN LUARD , THE UNITED NATIONS: How IT WORKS AND WHAT IT DOES 8 (2d ed.
1994 ). 2. See generally BRETrON WOODS REVISITED (A.L.K. Acheson et al. eds., 1972 ). 3. See Articles of Agreement of the International Bank for Reconstruction and De-
velopment , Dec. 27 , 1945 , 60 Stat. 1440 , 2 U.N.T.S. 134 . The International Bank for
Reconstruction and Development ("IBRD") was established in 1945 as a specialized
agency of the United Nations ("U.N." ). Id. 4. Articles of Agreement of the International Monetary Fund, Dec. 27 , 1945 , 60
Stat. 1401 , 2 U.N.T.S. 39 . The International Monetary Fund ("IMF") was established in
1945. Id. 5. See generally ERIK HOFFMEYER, THE INTERNATIONAL MONETARY SYSTEM: AN ESSAY
IN INTERPRETATION ( 1992 ) (discussing international monetary policy and role of IMF). 6 . See generally IBRAHiM F. I. SHIHATA , THE WORLD BANK INA CHANGING WORLD: SE-
LECGrED ESSAYS ( 1991 ) (accounting history and development of World Bank). 7. Articles of Agreement of the International Finance Corporation , May 25 , 1955 ,
7 U.S.T. 2197 , 264 U.N.T.S. 117 . 8. Articles of Agreement of the International Development Association, Jan, 26 ,
1960 , 11 U.S.T. 2284 , 439 U.N.T.S. 249 . 9. See HOFFMEYER , supra note 5 , at 33-39 ( discussing changes in IBRD structure that
led to better exchange rates and diversification). 10. Convention on the Settlement of Investment Disputes Between States and Na-
tionals of Other States, Mar. 18 , 1965 , 17 U.S.T. 1270 , 575 U.N.T.S. 159 [hereinafter
Convention]. 11. World Bank: Convention Establishing the Multilateral Investment Guarantee
Agency , Oct. 11 , 1985 , 24 I.L.M. 1598 . 12. See Malcolm Rowat, MultilateralApproaches to Improving the Investment Climate of
Developing Countries : The Cases of ICSID and MIGA, 33 HtAv . INT'L L.J . 103 , 103 - 44
( 1992 ) (discussing recent activities of International Centre for Settlement of Invest-
ment Disputes ( "ICSID") and Multilateral Investment Guarantee Agency (" MIGA")) . 13 . Stephen M. Schwebel , forward to ARON BROCHES, SELECTED ESSAYS : WORLD
( 1995 ). 56 . Id. at 225 . 57. Id. at 227- 28 . 58 . Id. at 229 . 59. Id .; but cf Ibrahim F.I. Shihata , Towards a GreaterDepoliticiationof Investment
Disputes: The Roles of ICSID and MIGA, 1 ICSID REv .- F.I.LJ. 1 , 14 ( 1986 ) (emphasizing
primacy of domestic host law) . 60. BROCHES, supra note 14 , at 229 . 61. Decision of the Ad Hoc Comm ., reprintedin 1 ICSID Review-F.I.LJ . 139 ( 1986 ). 62 . Id . 63 . See Amco Asia Corp. v. Republic of Indonesia, ICSID Case No. ARB/81/I (cit-
ing to Kockner as authority) . Excerpts of the award are reprinted in 24 I.L.M. 1022
( 1985 ). 86 . Id. at 516 . 87. Id. at 517 . 88. Id. at 518 . 89. See PHILIP I. BLUMBERG , THE MULTINATIONAL CHALLENGE TO CORPORATION LAW:
THE SEARCH FOR A NEW CORPORATE PERSONALITY 79-81 ( 1993 ). Entity theorists define
the term "agency" loosely, treating corporations and their subsidiaries as one entity . Id. 90. See id. at 70-79 . The enterprise theory establishes that there may be separate
enterprises within a corporation . Id. 91. Id. at 78-79 . 92. BROCHES, supra note 14, at 518 . 93. See Matter of Marc Rich & Co., A.G. , 707 F.2d 663 ( 2d Cir . 1983 ) (holding that
failure to comply with U.S. subpoena ). 94. BROCHES, supra note 14 , at 519 . 95. Id . 96 . See DAVID N. SMITH & Louis T. WELLS , JR., NEGOTIATING THIRD WORLD MINERAL
AGREEMENTS 1- 27 ( 1975 ) (discussing changing relationships in consession process)
( 1975 ). 97. Id. 98. Id. at 4 . 99. Id. at 6-18. 100 . Id . 101 . See generally Samuel KB . Ansante, Restructuring TransnationalMineral Agree-
ments , 73 AM.J. INT'L L. 355 (discussing issues related to transnational ventures that are
emerging in mineral-rich third world nations) . 102. BROCHES, supra note 14, at 520. 103. Id. 13. Id. at 67-116 . 14 . Id. at 117- 377 . These substantive rights include: preservation of their identity;
and arbitrary judicial intervention, and; the right to education and survival . Id. 15. Id. at 378-422. 16. Id. at 169-231. 17. Id. at 199. 18. Id. at 67-116 . 19 . See id. at 96 (reviewing Lakshmi Kant Pandey v . Union ofIndia (Supreme Court
of India)) . 20 . See id. at 73-75 (detailing Nielsen v. Denmark, Series A , No. 144 , App . No.
10292 /84, 11 Eur. H.R. Rep . 175 ( 1988 ) and Hendriks v. The Netherlands, App . No.
8427 /78, 5 Eur. H.R. Rep . 223 ( 1982 ) (Commission report )). 21 . See id. at 79 (describing Hoffman v . Austria, Series A , No. 255 -C, App . No.
12875 /87, 17 Eur. H.R. Rep . 293 ( 1993 )). 22 . Id. at 78. 23. Id. at 90-93. 24. Id. at 99-100. 25. Id. at 98-99. 26. Id. at 75-86. 27. Id. at 75-77 . 28 . In wealthier countries, the foster care system serves as a prime example of the
Levesque , The Failures of Foster Care Reform: Revolutionizing the Most RadicalBlueprint, 6
MD. J. CONTEMP . LEGAL IssuEs 1 ( 1994 ) [hereinafter Failures ofFoster Care Reform] . In
programs. Implementing Children'sHuman Rights, supra note 5 , at 978- 87 . 29 . For a brief, yet insightful, analysis of prejudice against children , see Jack C.
Westman , Juvenile Agism: Unrecognized Pre'udiceand DiscriminationAgainst the Young , 21
CHILD PSYCHOL. & HUM. DEV . 237 ( 1991 ). 30 . See supra note 6 and accompanying text (examining two controversial areas
dealing with children's welfare). 31. The intellectual roots and current manifestations of postmodernism are com-