Lessons from the Rights of the Child Fight

In the fall of 1996 Susan Kilbourne published an insightful analysis of the U.S. failure to ratify the Convention on the Rights of the Child. She begins by noting the exceptional international support for the Convention: "The United Nations Convention on the Rights of the Child is the most rapidly and universally ratified human rights treaty in the history of the United Nations. It was unanimously adopted by the U.N. General Assembly on November 20, 1989, and entered into force on September 2, 1990."(63) To date, only Somalia and the United States have yet to ratify the Convention on the Rights of the Child.

Surprisingly, perhaps, members of the US State Department under the Reagan and Bush administrations were active in the drafting process, and because of U.S. pressure several articles based on American law were included in the Convention.(64) In addition, the U.S. Ambassador to the United Nations did not object during discussion of the Convention by the General Assembly, and President Bush attended the United Nations World Summit for Children in 1990. Following the World Summit a well-organized legislative and grassroots campaign was launched to support ratification of the Convention. Senator Bradley and Senator Lugar co-chaired a National Advisory Council on the Rights of the Child. Letters were sent to President Bush and members of Congress, nine governors and states issued proclamations or passed resolutions supporting the Convention, and House and Senate resolutions were approved in the 101st Congress with eighty-five and sixty cosponsors respectively. In addition, the American Bar Association conducted an analysis of the Convention to determine its impact on U.S. domestic law and to make recommendations concerning ratification.

In 1993 the Senate passed a resolution urging the President to transmit the treaty to the Senate for advice and consent.(65) Despite these efforts and the personal support of the First Lady, Hillary Rodham Clinton, the United States did not even sign the Convention until early in 1995, when the former executive director of UNICEF, James Grant, pleaded from his deathbed for this action.(66) On February 16th the Convention was signed by the U.S. Ambassador to the United Nations, Madelaine Albright, rather than by the President. Two months later Ambassador Albright announced in a speech that the administration had decided to seek ratification of the Convention on the Rights of the Child.(67)

The beginning of 1995 also saw a newly elected Republican majority in Congress take power. In January of that year Senator Jesse Helms became Chairman of the Foreign Relations Committee. This change has meant that there has been no progress on ratifying any human rights treaty since 1995.

At the same time as public support for ratification of the Convention on the Rights of the Child was being mobilized, a coalition of conservative Christian organizations was mounting a vigorous campaign in opposition to ratification. This coalition included the Christian Coalition, Concerned Women for America, Eagle Forum, Family Research Council, Focus on the Family, and the National Center for Home Education. The grassroots campaign of these NGOs generated a flood of mail to Senators and Representatives. Senator Jesse Helms claimed to have received 5,000 letters opposing the Convention and only a single letter favoring it. On June 14, 1995 he introduced a resolution "expressing the sense of the Senate . . . that, because the United Nations Convention on the Rights of the Child could undermine the rights of the family, the President should not sign and transmit it to the Senate."(68)

The broadest argument against the Convention is that it undermines families and the authority of parents. In the words of the National Association for Home Education, the Convention poses:

Threats to the family [which] generally fall into three categories: (1) the transfer of God-given parental rights and responsibilities to the State; (2) the institutionalization of rebellion by vesting children with various fundamental rights which advance notions of the child's autonomy and freedom from parental guidance; and (3) the establishment of bureaucracies and institutions of a national and international nature designed to promote "the ideas proclaimed in the Charter of the United Nations" and to investigate and prosecute parents who violate their children's rights.(69)

These fears are overstated. There are no provisions in the Convention on the Rights of the Child concerning the prosecution of parents, and the Convention does not provide for an individual cause of action by a child. But the notion of "children's rights" raises difficult questions about the relationship between children and their parents that even trouble some feminists.(70) No one should have been surprised, therefore, when Senator Helms asserted that the "United Nations Convention on the Rights of the Child is incompatible with the God-given right and responsibility of parents to raise their children."(71)

The Family Research Council allowed that there might be a need for legal intervention in some countries to ensure the welfare of children, but argued that such intervention was both unnecessary in the United States and undermined the rights of parents. "To be charitable, we may assume that this treaty was drafted to get at practices such as sexual and industrial child slavery in the Third World. However, great danger lies in applying it to nations where these abuses are already illegal, but where violations of parents' rights are multiplying."(72) Focus on the Family attacked the Convention even more vociferously:

Instead of the traditional concept that children are "minors" in need of protection by parents, the U.N. treaty embraces the radical view that children are autonomous agents capable, across the board, of making adult decisions and dealing with adult situations. An example of the type of protection for children in America that could be threatened by the U.N. treaty is the statutory rape laws that prohibit adults from engaging in sexual relations with minors.(73)

In response, it may be noted that Article 5 of the Convention encourages parents or guardians to provide direction "in a manner consistent with the evolving capacities of the child," and that nothing in the Convention reasonably threatens any country's statutory rape laws.

There are, however, areas of ambiguity in the Convention concerning politically controversial issues such as abortion, educational materials, and discipline. The Convention does not mention abortion, but it does affirm the right to family planning education and services under Article 24(2)(f) as well as the right to privacy under Article 16, which critics suggest could be used to justify abortion. Due to language in Article 29(1)(b) asserting that school curricula should include attention to the "principles enshrined in the Charter of the United Nations," opponents of the Convention are concerned that children may be required to study humanist or secular materials contrary to the beliefs of their parents.(74) In response to the latter concern the American Bar Association Working Group on the Convention recommended that Senate ratification include an understanding that Article 29 does not require the regulation of any "private educational institutions beyond that which is permitted by the First Amendment."(75)

The issue of discipline concerns the right of parents to spank their children and measures used by schools to control children. Article 19(1) of the Convention requires that States parties take all appropriate measures to protect the child from abuse "while in the care of parents(s), legal guardian(s) or any other person who has the care of the child." Article 28 of the Convention says that States parties should "take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention." The Convention does not explicitly prohibit corporal punishment, but the Committee on the Rights of the Child has encouraged States parties to ban corporal punishment in schools and within the family.(76)

Kilbourne notes that opponents of the Convention on the Rights of the Child object particularly to the following articles: Article 13, concerning freedom of expression; Article 14, protecting freedom of thought, conscience, and religion; Article 15, asserting freedom of association and peaceful assembly; Article 16, affirming the right of privacy; Article 17, providing for access to information; and Article 18, recognizing the responsibility of both parents to care for the child. The argument is that these civil rights are adult rights, which are not properly granted to children.(77)

Thus, although opposition to the Convention on the Rights of the Child invokes some of the traditional arguments against human rights treaties concerning loss of sovereignty by the United States, the real issue behind the defeat of the Convention's ratification is the perceived threat to the family and parental authority.

Significantly, in this respect the International Covenant on Economic, Social and Cultural Rights may be clearly distinguished from the Convention on the Rights of the Child. Perhaps because it was written in the middle of the 20th century, the International Covenant on Economic, Social and Cultural Rights strongly affirms the family and does not contain any "children's rights" language. Article 10(1) asserts: "The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.” 

The Covenant also states in Article 10(3) that: "Special measures of protection and assistance should be taken on behalf of all children and young persons . . . [who] should be protected from economic and social exploitation." In addition, the right to "an adequate standard of living" in Article 11(1) is not merely an individual right but is asserted using family language: "The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family . . .."

Similarly, the language in the International Covenant on Economic, Social and Cultural Rights concerning education does not raise the controversial issues present in the Convention on the Rights of the Child. Article 13(1) of the Covenant recognizes "the right of everyone to education." Nothing is said about discipline in school, nor is any mention made of promoting in school curricula "the principles enshrined in the U.N. Charter." Article 13(1) of the Covenant on Economic, Social and Cultural Rights simply asserts that: "education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace."

In addition, Article 13(3) of the Covenant holds that: "The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions." This language might even have some appeal to the coalition of NGOs that opposed the Convention on the Rights of the Child.

Therefore, it cannot be assumed that the coalition of NGOs, which succeeded in helping to defeat ratification of the Convention on the Rights of the Child, would mobilize with the same intensity and effectiveness to oppose ratification of the Covenant on Economic, Social and Cultural Rights. It is much harder to find in the International Covenant on Economic, Social and Cultural Rights the threat to the family that is perceived as central to the Convention on the Rights of the Child. In fact, it may even be argued that the Covenant strongly supports the family and the right of parents to decide what is best for the moral and spiritual education of their children.

bob@rtraer.com © Robert Traer 2016