Sex And Aids Education In The United States: Implications Of The Un Convention On The Rights Of The Child
| Author | Jason R. Hight |
| Position | J.D. Candidate (2002), Golden Gate University School of Law |
| Pages | 679-692 |
J.D. Candidate (2002), Golden Gate University School of Law; B.A., Arizona State University. I would like to thank Maria Grahn-Farley for the opportunity to learn and to write this essay.
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The UN Convention on the Rights of the Child (CRC)1 outlines the ideals that the States Parties to the CRC feel are most important when it comes to the rights pertaining to children. Explicit in these ideals are the right to be heard,2 the right to life,3 the right to an education,4 the aims of that education,5 the right to a high standard of health,6 and the notion that everything in the convention shall be construed in the best interest of the child.7
Conversely, what is not so explicit in the convention is what the right to education includes or should include. This essay will demonstrate that the CRC implicitly holds that sex and AIDS education is an important concern that states must address. Additionally, this essay will show that the United States (U.S.) has not met the goals put forth by the Convention on this subject, and will also demonstrate ways in which the U.S. can meet those standards.
By examining specific articles of the Convention in depth, this essay will bring to the surface the implied concept of sex and AIDS education hidden in the articles of the CRC.
The CRC "place[s] children"8 in an effort to harmonize the approach to raising the children of the world. The United Nations (UN) deemedPage 680 1979 as the year of the child.9 It was during this year that Poland came to the UN with the idea of forming a convention on the rights of the child10. The UN was open to the idea and created an open-ended Working Group of the UN Commission on Human Rights.11
From 1979 to 1988, this Commission worked on drafts of the Convention in an "Open Working Group" which consisted of delegates from different countries.12 The purpose behind the "Open Working Group" was to form the ideas that were to be presented in the convention, with the least amount of controversy, so that a maximum amount of states would sign the final draft.13 There were some issues of controversy such as adoption, the child's freedom of religion, and the age of the child to be allowed to fight in armed conflict.14 In November of 1989, the final draft was presented to the General Assembly for adoption.15
The final draft of the CRC commences with a preamble followed by 54 articles. The first article gives the international definition of a child: "every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier."16 This definition will also serve for the purposes of this essay.
The CRC has been ratified by 191 states,17 and has been signed by the U.S., but not ratified.18 However, the U.S. is still morally bound to thePage 681 CRC because a signature to a treaty or convention means that the State cannot do anything that is directly in conflict of the laws of the convention19 even though it is not yet ratified.
The articles that are pertinent to this essay are described in detail below.
Article 3 is one of the more powerful articles of the Convention in that the remainder of the articles would mean very little if they were examined without this article in mind. The title of this article is the best interest of the child.20
The first paragraph of Article 3 states "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration."21 This tells the States who are parties to the CRC that the best interest of the child should be their primary consideration, which implies the idea that States use other considerations when making laws.22 I will delve further into this idea below. Article 3 further provides that the State must take all possible measures, whenever necessary, to ensure the child's protection and the care of his or her well being.23
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Paragraph three of this article gives even tighter guidelines for the State when it mandates that it must "ensure that institutions, services and facilities responsible for the care or protection of children shall conform with the standards established . . . in safety [and in] health."24
Thus, the State should form laws which positively affect the care of the child and that conform to this article of the Convention.
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The first section of Article 6 states that every child has the inherent right to life.25 However, the Open Work Group26 has described this right as different from the usual definition of "[n]o one shall be deprived of the right to life."27 The framers or authors of this article meant something different entirely. Specifically, the article directs the States to take all possible measures to ensure the chances of the child living a long and healthy life.28
The right to life, already enshrined in the International Covenants on Human Rights, should be included in the draft convention and listed as a priority before other rights of the child. The approach to the right to life in the Covenants was rather negative, while that of the convention should be positive and should take into account economic, social, and cultural conditions.29
Thus, Article 6 of the CRC is telling the States that in order to meet its standards, the States must do everything in their power to increase life expectancy and the standard of living of the child30.
Part two of Article 6 explains that "States Parties shall ensure to the maximum extent possible the survival . . . of the child."31 There was some debate over the use of the word "survival" in the Open Work Groups because some people wanted to use "growth" instead32. Obviously, however, the term "survival" won out, and has a very broad definition, which had a special meaning in the UN context.33 This special meaning within the UN and especially UNICEF included "growth monitoring, oral re-hydration, disease control, breast feeding, immunization, child spacing, food, and female literacy."34
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The first section of this article states that "States Parties shall assure to 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."35 The Guidelines for Periodic Reports36 asks the state to provide information on legislative and other measures taken to ensure the right of the child to express views in a manner consistent with his or her evolving capacities, including, but not limited to, family life and school life.37
This article plays a minor role in the analysis of this essay, but the article is important enough that it should be mentioned. Section (f) states that the State shall "develop preventative health care, [and] guidance for parents and family planning education."38 Thus, the State must not only provide re-active health care for children, but must also establish some form of pro-active health care.
This article is specifically about education. The education shall be free and available to all children, and, for the most part, the article is self-explanatory. However, Section 1(e) says that a State shall "[t]ake measures to encourage regular attendance at schools and the reduction of drop-out rates."39 The article does not inform the State how or what kindPage 685 of programs it should implement to achieve this standard. Without giving the next section of the essay's analysis away, I will tell you that it is hard to have a high attendance rate when "four out of ten girls in this country still get pregnant at least once before age 20."40
Article 29 of the CRC is titled the "The Aims of Education" because it outlines how the State should ensure the child's right to education.41 In the appendix of the Article, the authors explain that education as used in Article 28, goes far beyond formal schooling to embrace the broad range of life experiences and learning processes which enable children, individually and collectively, to develop their personalities, talents and abilities and to live a full and satisfying life within society.42
The appendix further explains that "the overall objective of education is to maximize the child's ability and opportunity to participate fully and responsibly in a free society."43
The fact that sex or AIDS education is not specifically mentioned in the CRC does not mean that it was not part of the framer's intention. As noted earlier in the essay, the framers purposely left some things unsaid soPage 686 as not to ruffle any feathers with certain countries.44 I will examine the areas where, if one reads between the lines, the articles prohibit the States from mandating anything less than a high standard for sex and AIDS education.
Article 3 is the most obvious in that it tells the State that it must not only make laws to help protect its children, but that those laws must be in the best interests of the child.45 This means that when States pass laws they should have some way of knowing what is best for the child. For example, laws that limit what children are taught in regards to sex and AIDS clearly are not in the child's best interest. How could a law that makes children experiment, and put their life in danger of HIV/AIDS, be in the child's best interest? It is not. It is clearly an example of the legislative body...
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