The Implications of United States Ratification of the Convention on the Rights of the Child

Introduction

The purpose of this submission is to provide evaluative analysis of the potential implications of ratification of the United Nations Convention on the Rights of the Child (CRC or Convention) and to inform the public of perspectives regarding ratification. The CRC is a United Nations treaty seeking to promote children’s rights such as access to welfare, claim to a good education, and entitlement to freedom of religion.  Despite these laudable goals, there is substantial controversy regarding adoption of the treaty in the United States.  The current political climate brings this issue to the forefront as the Obama administration is researching when and how it will be possible to ratify the CRC with the concern that the United States may be falling behind as a leader in human rights without its ratification.  However, it appears that ratification of the CRC would impede United States sovereignty and fail to accomplish its intended purpose to increase human rights on a worldwide scale.

The current thesis presents an evaluative analysis of these potential implications of U.S. ratification of the CRC through providing the following: (1) a comparison of the United States’ existing law with legislation that would be required under the Convention, (2) an examination of the underlying assumptions and possible interpretations of the Convention through studying the changes its ratification has brought about in other countries, (3) an exploration of the potential risk to national sovereignty that would result from ratification of a treaty overseen by a body outside of the United States government. A thorough review of the potential implications provided through this evaluative analysis will contribute to a more informed position regarding ratification of the CRC than has been available to this point.

Background

In 1989 the United Nations adopted the Convention on the Rights of the Child (“CRC”),

a document comprised of fifty-four articles (Detrick, 1999, p. xxiii-xl) that declare the government’s duty to protect children and provide for their material and immaterial needs. On a worldwide scale, this document has been greeted with open arms and is the “most widely ratified international human rights treaty (even though it was drafted after most other major international human rights treaties)” (Todres et al., 2006, p.3). Surprisingly, only two countries, the United States and Somalia, have not ratified the CRC[1] (given that Somalia does not have a formal governing body it is unlikely they will ratify the CRC). Because so many States have accepted this treaty, there is considerable international pressure to ratify the CRC. However, there has been significant concern on the part of some lobbying bodies that there is no need for the United States to adopt the treaty, or that its adoption could place United States sovereignty and citizen rights at risk. The issue is of immediate political concern because, following Senator Barbara Boxer’s push for its ratification, the Obama administration has specified an agenda to “take it up as an early question” (“Nomination of Hon.,” 2009, p.39).

Proponents of ratification have argued that the CRC lays the groundwork for a national and world-wide orientation in which “children’s rights are being taken more seriously” (Freeman, 1996, p.5).[2] The CRC has been identified as “the first legally binding international instrument to address children’s rights comprehensively” (Todres et al., 2006, p.12). Proponents feel that the treaty would protect children from discrimination, exploitation, torture, and abuse; guarantee their right to survival and development; improve living conditions; and ensure children freedom of expression, thought, association, religion, and privacy.

In countries where children’s rights are perceived to be significantly compromised, the document has been argued to be efficacious in reducing exploitation of children. In more developed countries, specific benefits have been identified for several key issues. For example, since ratifying the CRC, Belgium has improved its child prostitution laws and discouraged “sex tourism” because offenders can now be punished. Furthermore, through campaigning Belgium has informed its citizens about child abuse and neglect (“Concluding Observations,” 2000, p.46). Australia has expanded its child welfare services including, “universal and free education [sic] and the advanced health system” (“Concluding Observations,” p.15).

Specific Concerns

Opponents to ratification of the CRC, however, have also presented a strong case for some of its negative implications, including weakened parental legal rights and national sovereignty. Specifically, the George W. Bush Administration opposed [the] CRC and expressed “serious political and legal concerns with the treaty, arguing that it conflicted with U.S. laws regarding privacy and family rights” (Blanchfield, 2009, para. 2). Those who have identified concerns with ratification of the CRC argue that the egalitarian cultural ideologies which underlie the treaty seek to build up socialist policies. The CRC endorses a paradigm in which the government is encouraged to build up its welfare program.[3] They further argue that the United States does not need to adopt the CRC because it already has domestic laws to protect children and, in addition, has previously adopted a United Nations treaty[4] similar to the CRC (though it did not frame the government’s responsibilities toward the child as “rights” to which the child is intitled).

Those on both sides of the issue recognize that if the CRC were ratified by the United States, current laws would need to be changed to comply with the fifty-four articles that compose the CRC. The fourth Article of the CRC states:  “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention” (Detrick, 1999, p. xxiv), and each country’s compliance is regularly evaluated by a United Nations Committee.

This paper is an attempt to clarify these strongly disparate positions by evaluating the potential implications of changes in current United States law that might be incurred by ratification of the CRC. I will address the following concerns: parental sovereignty (specifically pertaining to sexual education and abortion), education, corporal punishment, and religious worship.

Parental Sovereignty

One of the most frequently cited concerns of U.S. ratification of the CRC centers on the assumption that the document contains ideological implications that undermine parents’ responsibility to guide their children. Specifically, the document gives the government greater priority to decide what is in the best interest of the child. In doing so, opponents argue that the CRC goes beyond previous documents by declaring that children have a “right to choose.” This right to choose would allow children the “right to freedom of expression” through media of their choice (“Convention on,” 1989, Article 13), “freedom to manifest [their] religion or beliefs,” (“Convention on,” Article 14), and “freedom of association” (“Convention on,” Article 15). Another potentially problematic freedom is found in Article 16, which states: “No child shall be subjected to the arbitrary or unlawful interference with his or her privacy, family, home or correspondence…” (Detrick, 2009, p. 269). It subsequently claims to protect the child from “interference or attacks by public authorities as well as by private persons [this would include parents]” (Detrick, p. 269).

Opponents have interpreted this language to mean that parents could not access their children’s correspondence. The underlying concern is that children would be left with the role of raising themselves “‘free’ from parental guidance” (Dollahite, 2000, p. 338). In arguing against such article claims, Hafen argues that children do not have the “full capacity for individual choice which is the presupposition of the First Amendment” (Hafen & Hafen, 1996, p. 456). Rights that are guaranteed to adults thus differ with rights guaranteed to children based on the assumption that children need parental guidance to become adults and to make choices based on rights guaranteed adults. Opponents argue that the CRC assumes that parental responsibility for children is granted by the government, which has primary decision making authority regarding the rights of children.

American tradition recognizes that parents have primary responsibility for the nurture and upbringing of their children. In cases such as Purham v. J.R. (1979) it was decided that “simply because the decision of the parent is not agreeable to the child because it involves risks does not automatically transfer the power to take that decision from the parents to some officer of the state” (Purham v. J.R). Those who oppose the CRC are concerned that the CRC will override parents’ jurisdiction over their children.  Though the CRC does not exclude parents, the very nature of the government bestowing parental “rights” gives the government primary responsibility for the children.

In response, proponents of the CRC argue that parents are included in the CRC and that the concern is a misinterpretation of the purposes of the Convention. For instance, Article 7 of the CRC states “as far as possible, the [child has a] right to know and be cared for by his or her parents” (Todres et al., 2006, p. 42). Woodhouse points out that “parents are seen as natural guardians of the child’s rights, and have both the right and the responsibility to provide guidance and direction” (Todres et al., p. 43) under the CRC. Though the parents are mentioned frequently in the Convention, the government seems to be allocating them a specific stewardship toward their children, placing the parents as the secondary guardian and the government as the primary guardian of the child.

Issues of parental sovereignty have centered on several major concerns including sexual education and abortion, education, corporal punishment, and religious worship.

Sexual Education and Abortion. With regard to the rights of sexual education and abortion, opponents argue that the CRC can be interpreted to mean that children do not have to inform their parents before having an abortion. This interpretation also comes from Article 16, which states, “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, nor to unlawful attacks on his or her honour and reputation” (“Convention on,” 1989, Article 16). Applied to abortion, opponents argue that ratification of the CRC could be interpreted to mean that a teenage girl who is pregnant could have an abortion not only without her parents’ consent, but without even informing her parents. Klicka and Estrada explain “This would virtually invalidate all parental notification laws concerning abortion” (Klicka et al., 2007, para.12).

The same idea has been argued with regard to sexual education. Article 24 calls upon States Parties “to develop preventive health care, guidance for parents and family planning education and services” (Detrick, 1999, p. xxii). Opponents have argued that this statement would be interpreted to mean that the government is responsible to teach sexual education (as can be seen by the recent institution of mandatory sexual education in Canada where parents cannot pull their children out of sexual education classes). If sexual education classes are deemed to be a child’s right, parents may lose their ability to choose to remove their children from these classes. In this manner, the CRC is argued to diminish parental sovereignty by establishing that the government protects children from their parents.

Furthermore, Article 12 of the CRC states that “States Parties shall assure the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” (“Convention on,” 1989, Article 12). This sentence has been interpreted by the Committee to mean that children should be allowed to express their opinions on going to public school, participating in religious activities or attending sexual education classes.

The issue was made more apparent in advice given by the UN Committee on the CRC to the United Kingdom. According to the UN committee:

In relation to the implementation of article 12, the Committee is concerned that insufficient attention has been given to the right of the child to express his/her opinion, including in cases where parents in England and Wales have the possibility of withdrawing their children from parts of the sex education programmes in schools. In this as in other decisions, including exclusion from school, the child is not systematically invited to express his/her opinion and those opinions may not be given due weight, as required under article 12 of the Convention. (“Concluding Observations,” 2009)

The 12th Article of the CRC was thus interpreted to place the responsibility for teaching family planning with each nation’s government, and assume that children, not their parents, are able to determine if they want to participate in public school’s sexual education classes.

Education

Another concern of the specific implications of the CRC concerns education laws in the United States that would need to change in order to comply with ratification of the CRC.[5] Specifically, compliance with the CRC could influence the curriculum of public, private and home schools. In the Aims of Education section of the CRC, the Committee specifies the processes, or pedagogical methods, of education as well as qualifications that should be placed on the curriculum (“Aims of,” 2001). Opponents assert that if the CRC were to be ratified, the United States would be required to fundamentally rework its public school curricula and to revise textbooks and school policies to comply with education policies outlined in the CRC.

In addition, opponents argue that under Article 29 home and private schools’ curriculum would be required to be regulated by the federal government. Ratification of the CRC could potentially lead to the overturn of case precedents including the precedent set by Fraser v. Bethel School District and Hazelwood School District v. Kuhlmeier (1988), in which “the Court firmly upheld a public high school’s right to control not only the curriculum, but also the extracurriculum, including the content of student newspapers and speeches in school assemblies” (Hafen & Hafen, 1996, p. 468). As Hafen explains, “If article 13’s provisions were taken literally in United States schools teachers and administrators would have difficulty managing core educational content, let alone the larger school environment” (Hafen & Hafen, p. 468).

Corporal Punishment

Another concern for opponents of ratification of the CRC centers on parental jurisdiction over the discipline of their children. The CRC specifically protects children from degrading punishment and physical violence which has been interpreted to include forms of corporal punishment such as spanking. Thus opponents have argued that if the United States adopts the CRC “Congress would have the duty as well as the power to implement legislation which directly imposes legal sanctions against parents to spank their children” (Farris, 2009). The reality of this potential implication was seen in Canada where, upon adopting the CRC, the government was forced to review their criminal code and ban spanking.

Religious Worship

Another concern is that the CRC would interfere with the rights of parents to determine children’s religious worship. The CRC specifically asserts that parents would only have the “rights and duties” to “provide direction” in the child’s exercise of religion within the “evolving capacities of the child” (“Convention on,” 1989, Article 5). Under the CRC, the government would have the power to decide when parents should be able to advise their children concerning religion. Bruce and Jonathan Hafen point out that the CRC “apparently rejects the Court’s longstanding position that parents have their own constitutional right to rear their children within the parents’ religious tradition” (1996, p.470).

Legal Concerns

Beyond issues that concern parental rights, opponents of the CRC argue that ratification of the CRC would enable United Nations’ authority over domestic law, including the Constitution. The United States Constitution expressly states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (“The Constitution,” 2009). Thus the Constitution states that a treaty – the CRC – would override any domestic laws. International law enforces this statement through the Vienna Convention of the Law of Treaties, which both advocates and opponents of the CRC agree to mean that “every treaty is superior to all internal law – including the nation’s constitution” (Farris, 2009). Though the CRC will most likely be adopted as a non-self-executing document, it will still have jurisdiction through the implementation of Congress.
Conclusion

Thus we see the conflicting opinions regarding the implications of ratifying the CRC. While some feel that the CRC would benefit the United States by making it a more prominent figure in human rights, allowing children more “rights”; others feel that it “confuses an understandable fear of state paternalism with an unwarranted fear of parental paternalism” (Hafen & Hafen, 1996, p. 451), securing children excess “rights.” The literature thus far seems to suggest two interpretations of the CRC; reconciliation of these views with a suggested perspective will guide public and policymakers in a decision concerning ratification. This succinct analysis of the effects of ratification suggests that indeed, parental sovereignty will be lessened and the duty of the government will be to preserve children’s rights to choose concerning issues such as sexual education classes, practicing religion, and even the friends with whom they associate.

References

Bethel School District v. Fraser, 478 U.S. 675 (1986).

Blanchfield, “The United Nations Convention on the Rights of the Child: Background and Policy Issues.” Congressional Research Service. December 2009.

“Concluding Observations/ Comments of the Committee of the Rights of the Child.” Univeristy of Minnesota Human Rights Library. April 20, 2009. <http://humanrights.           law.monash.edu.au/crc/crc-country.html>.

Committee on the Rights of the Child, General Comment No. 1, The Aims of Education, U.N.     Doc. CRC/GC/2001/1 (2001).

“Convention on the Rights of the Child.” Office of the United Nations High Commissioner for       Human Rights, 1989. Retrieved January 11, 2010 from http://www2.ohchr.org/english        /law/crc.htm.

Detrick, Sharon. A Commentary on the United Nations Convention on the Rights of the Child. Netherlands: Kluwer Law International, 1999.

Dollahite, David, ed. Strengthening our Families – An In-Depth Look at the Proclamation on the Family. Utah: Bookcraft, 2000.

Farris, Michael P., J.D. “Nannies in Blue Berets: Understanding the U.N. Convention on the        Rights of the Child.” HSLDA Advocates for Homeschooling. January 2009. March 5,    2009. <https://www.hslda.org/docs/news/HSLDA_Understanding_UNCRC_Issue_       Paper.pdf>.

Freeman, Michael, ed. Children’s Rights A Comparative Perspective. Vermont: Dartmouth           Publishing Company Limited, 1996.

Hafen, Bruce C. and Jonathan O. Hafen “Abandoning the Children to Their Autonomy: The        United Nations Convention on the Rights of the Child.” Harvard International Law Journal. Volume 37, Number 2 (449-491): 1996.

Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).

Klicka, Christopher J. Esq. and William A. Estrada. “The UN Convention on the Rights of the     Child The Most Dangerous Attack on Parents’ Rights in the History of the United   States.” Home School Legal Defense Association (2007). Retrieved January, 11, 2010       from http://familyrights.us/UNCRC/klicka_special_report_1999.html.

Nomination of Hon. Susan E. Rice to be U.N. Representative: Hearing Before the S. Comm. on     Foreign Relations. 11th Congress. January 2009. (2009).

Office of the United Nations High Commissioner for Human Rights. (1989). Convention on the   Rights of the Child. Retrieved January 9, 2010, from http://www2.ohchr.org/english/law/           crc.htm.

Open CRS – CRS Reports for the People. (n.d.). Open CRS – CRS Reports for the People.             Retrieved January 9, 2010, from http://opencrs.com/document/R40484/.

“Oppose the UN Convention on the Rights of the Child.” National Center for Home Education a Division of Home School Legal Defense Association. March 2007. March 5, 2009. <                 http://www.hslda.org/docs/nche/000000/00000021.asp>.

Parentalrights.org – Protecting Children by Empowering Parents — . (n.d.). Parentalrights.org –     Protecting Children by Empowering Parents — . Retrieved January 9, 2010, from        http://parentalrights.org.

Parham v. J. R., 442 U.S. 584 (1979).

“Presidential Youth Debate.” Walden University. Question 12. 2008. April 20, 2009.             <.http://debate.waldenu.edu/video/question-12/>.

The Constitution of the United States. National Center for Constitutional Studies. United States    of America, 2009.

Todres, Jonathan, Mark E. Wojcik, Cris R. Revaz. The U.N. Convention on the Rights of the Child An Analysis of Treaty Provisions and Implications of U.S. Ratification. New York:          Transnational Publishers, Inc., 2006.


[1] The Clinton Administration signed the CRC in February 1995, which signing implies that the United States will not oppose the purposes of the treaty. However, because of “strong opposition from several Members of Congress” (The United), it was not taken to the Senate for ratification. Because the CRC has not been ratified, the document is not binding in the United States.

[2] According to Freeman, children’s rights now has its own journal: The International journal of children’s Rights, 1993.

[3] For example, in its initial report, Ireland was commended by the Committee for establishing welfare services (Concluding Observations, 2000, p. 219).

[4] All U.N. States except for Cambodia and South Africa passed this document, the United Nations Declaration of the Rights of the Child of November 1959.

[5] Articles 28 and 29 of the Convention provide specific guidelines for the education that should be available in each Nation.

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1 Response » to “Alyssa Brown 1st place in the Undegratuate Category”

  1. Laura Brown says:

    Informative article on an important subject. It looks like the bottom line is giving parental rights away to the government or worse -the UN. Do you think we will continue to resist signing this as a nation?