Don S. Browning, the United Nations Convention on the Rights of the Child: Should it Be Ratified and Why?

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 20 No. 1

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: SHOULD IT BE RATIFIED AND WHY?

Don S. Browning^*

The United States helped write the United Nations Convention on the Rights of the Child (CRC or "Convention") and signed it in 1989. But the U.S. Senate has never ratified it. Those who argue that the Senate should ratify the Convention point out with both derision and glee that, along with Somalia, the United States is the only other member of the United Nations that has not officially agreed to this document supporting the rights of children-the most vulnerable members of the human family. Why has the United States refused to give its final approval? Does its reluctance have any justification?

This Essay argues that the United States should ratify the Convention. However, the reasons advanced for its failure to do so should also be taken seriously. In the end, I conclude that the reasons do not, in reality, hold. Nonetheless, that conclusion is based on an interpretation of the Convention in light of the meaning of statements about family and children in the earlier

Universal Declaration of Human Rights (UDHR)¹and other U.N. covenants that the UDHR has influenced. Insofar as the direction of the many U.N. statements on human rights may be drifting away from the rationales of the UDHR, the grounds for refusing to ratify the Convention become reasons to pause and reflect. Upon further examination of the CRC, it is my judgment that the original meaning of statements about children and family made in the UDHR still, for the most part, hold in the CRC. For this reason, the Convention is safe to adopt for the United States. Furthermore, once adopted and properly interpreted, the United States could play a significant role in shaping the proper understanding and implementation of the Convention both at home and in other parts of the world.

I also contend that interpreting the CRC in light of the UDHR gives scholars interested in the relation of law and religion a special opportunity. It provides an occasion for clarifying the grounds of human rights discourse and claims. Are human rights based on positive law, natural law, natural rights, or some religious or quasi-religious narrative about the meaning and purpose of life and the dignity of human beings? Or must human rights claims, for both children and adults, be based on some subtle combination of these various grounds? Properly grounding the rights of children and adults requires a mixed argument-a double language-that artfully, yet logically, brings together both natural law and natural rights with religious or quasi-religious narrative.

I. HISTORICAL BACKGROUND, THEOLOGICAL UNDERPINNINGS, AND MODERN

ARGUMENTS

A. Complaints About the Convention on the Rights of the Child

Various groups in American society have expressed fears about the Convention and have been successful in influencing the deliberations of Senate committees contemplating its ratification. Groups that reject the CRC tend to be fearful that government is undermining the rights of parents over their children. They also tend to be skeptical of the directions of international family law and distrustful of how international treaties might trump democratic deliberations about children and families in our own individual state legislatures and courts.

The concern that international law might override the rights of our individual states may be the central fear, but it is closely related to the other objections. Family law in the United States is, for the most part, a constitutional responsibility of the fifty states. Only when family law has been judged to affect such broad issues as national immigration policies, the liberation of slaves during the Civil War (the creation of the Freedman's Bureau in 1865), the outlawing of polygamy in the nineteenth century, or national welfare policies such as the passage of the Temporary Aid to Needy Families (TANF) program in 1996, has family policy become a subject of action by the U.S. Congress or federal courts.²Fear that the CRC would undermine this principle also stems from the Supremacy Clause (Article VI, Section 2) of the U.S. Constitution which provides that ratified foreign treaties take precedence over the laws of the specific states.³Even though the U.S. Senate has specifically stipulated that the human rights guarantees of international treaties are not "self-executing" at the level of individual states, many Americans believe that these treaties will serve to set precedents that could undermine the states' rights principle as it pertains to laws governing families, children, and marriage.

Closely associated with this concern is an even greater one-that the Convention would undermine parental authority and that state legislatures and courts could not effectively resist this trend. In support of this apprehension, critics point to Article 13 (giving children freedom of expression and information), Article 14 (granting children freedom of thought, conscience, and religion), Article 15 (giving them freedom of association), Article 16 (allowing children privacy), and Article 12 (giving children's opinions weight appropriate to their age in courts of law).⁴Detractors of the Convention suggest that it would lead to state supervision and monitoring of parents (Article 19) and inhibit parents' rights to appropriately discipline their children (Articles 3, 19, 37).⁵Such provisions are seen to restrict the rights of parents to raise children according to their own values and convictions (i.e., to form their conscience, religious beliefs, and opinions), to guide them in establishing friends, and to monitor their use of privacy. Given these worries, any curtailment of a citizen's power to resist these threats to parental authority at the level of state legislatures and courts would be viewed as a double threat to family continuity and well-being. Home-schooling advocates, who generally distrust state and public education intrusions on parental prerogatives, have been particularly vehement in their opposition to the CRC.⁶Such groups have helped shape the refusal of the U.S. Senate to ratify the Convention.

B. Reasons for Supporting the Convention

Those supporting ratification of the Convention assure that the opposition's fears have no bases in reality. Supporters point to the U.S. Senate's reluctance to invoke the Supremacy Clause in implementing human rights treaties at the national level. Proponents also point to the relatively frail report-and- consultation powers of the Committee on the Rights of the Child, the only implementation body provided for by the CRC. In short, proponents insist that the Child's Rights Committee has no teeth-no powers short of embarrassment and persuasion which States Parties can easily ignore.

Furthermore, proponents point to the numerous provisions of the CRC that assert and preserve the rights of parents and legal guardians. Indeed, Article 3, paragraph 2 of the Convention states: "States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals . . . ."⁷These words seem to anchor responsibility for the care of children first of all with parents. Some commentators, however, have noted that this provision first mentions the responsibilities of States Parties and only secondly the "rights and duties" of parents.⁸Nevertheless, an even stronger statement can be found in the words of Article 5: "States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom . . . to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance . . . ."⁹This provision also seems to place the priority for care and guidance with parents.

Additional statements defending the rights of parents, within a variety of contexts, can be found throughout the Convention. For example, Article 8 assures a child the right to "preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference."¹⁰Article 9 ensures that "a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review" determine that such action is necessary for the best interests of the child.¹¹Such statements lead John Quigley to assert with great confidence that "[t]he very concept of legal rights of children is questioned, moreover, on the grounds that it might erode the proper role of parents. . . . By recognizing the role of parents, the Convention avoids becoming an instrument whereby the state might replace the parent."¹²

Quigley's conclusion has merit. However, the worries of those who oppose the CRC are also understandable. I sympathize with Quigley's view because I read the Convention in light of the meaning and place of family and children in the Universal Declaration of Human Rights, commonly thought to be the most elegant and formative of the human rights statements. In that document, the priority of parents in relation to the state, law, and market is articulate and decisive. As this Essay demonstrates, the Declaration states that government should support and guide parents, but government must not replace or undermine parents' responsibilities. The spirit of the UDHR is reflected in several subsequent international conventions and covenants written prior to the CRC. However, although the Convention does not stray far from this tradition, it does seem to somewhat restrict the sphere of parental responsibility. Such restriction on parental responsibility raises the question of whether the CRC has drifted away from the balance of parental and state rights achieved in the Declaration.

In the famous Article 5, presented by advocates of the...