Summary: The UN Convention on the Rights of the Child addresses some serious problems that need attention. But it also contains provisions that WPA has been opposing for many years. We need to continue to oppose these. However, focusing specifically on the convention is not the best way to do this so. In fact, such focusing could backfire by giving the convention publicity it would not otherwise have and perhaps encouraging its passage.
In 1989, the United Nations (UN) General Assembly passed the UN Convention on the Rights of the Child. The US has not ratified it, so the questions remain as to whether or not the US will ratify it eventually and what ratification would mean for people in the US.
One early step in the ratification process is for the President to send the convention to the US Senate and request the required 2/3 vote of approval. Therefore, each time a new President takes office, there is a question as to whether they will send it to the Senate.
For a number of complicated reasons explained below, the US will not ratify the convention any time soon. For one thing, none of the three Presidents (from two different political parties) who have served since the convention was adopted by the UN has sent it to the Senate.
The convention addresses some serious problems that need attention, such as hunger, poverty, and child slavery. Unfortunately, it also raises concerns and supports developments that WPA has been opposing for years. For one thing, it increases the power and authority that professionals and so-called experts have over families while reducing the rights and responsibilities of parents. (Details about this and other concerns are below.) Because there is still the possibility that the US could go through the long ratification process and eventually ratify the convention, it is important for us to be aware of
(1) concerns raised by the convention,
(2) legal safeguards that make it difficult for the convention to be ratified at all and nearly impossible for it to be ratified with provisions that are not already law or widely accepted in the US, and
(3) how misleading it is to say with grave concern that this convention “would become the law of the land.”
The bottom line is that we need to continue to oppose provisions of the convention. However, focusing specifically on the convention is not the best way to do this. In fact, such focusing could backfire by giving the convention publicity it would not otherwise have and perhaps encouraging its passage.
Note: To read the full text of the convention, go to http://www2.ohchr.org/english/law/pdf/crc.pdf
Concerns Raised by the Convention
As explained below, the convention raises serious concerns for homeschoolers and other families. However, discussions with others about the convention are more likely to be effective if we begin by acknowledging the importance of trying to improve the lives of children throughout the world. Children suffer tragically in ways that should be stopped. Dramatic examples include child prostitution and slavery. But hunger, poverty, racism, and other problems affect children throughout the world, including in the US. The goals of the convention are commendable in the sense that children should be treated better. However, as Supreme Court Justice Louis Brandeis warned, we need “to be most on our guard to protect liberty when the government’s purposes are beneficent.” He wrote, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” (Olmstead v. United States)
Unfortunately, the convention’s approach can easily undermine the well-being of children and families. It is not an effective solution to many problems. Basically, one of children’s greatest needs is to be part of a stable family. Put another way, “It is neither possible nor desirable to isolate children from the interests of their parents, or those of the larger society as a whole.” (Back cover of Martin Guggenheim’s outstanding book What’s Wrong With Children’s Rights, Cambridge MA: Harvard University Press, 2005). WPA highly recommends this book, written by an attorney who has spent many years working of behalf of children and families, to anyone interested in this topic.
Instead of working to strengthen families, the convention views children as independent units. It expands the use of the principle of "the best interests of the child." This principle is currently used primarily in custody and child abuse cases. The convention would apply it to all articles of the convention, including parent-child relations, education, health, mass media, recreation, foster care and adoption, and juvenile justice.
It is difficult to argue with the idea of acting in "the best interests of the child." Most people want (or at least claim to want) what is best for children. But as mentioned above, it is naive and short-sighted to view children as independent units whose best interests can be separated from those of their families and society as a whole. This is not to say that children should be sacrificed for their families (forced to do unreasonable work, for example). But children need to be part of strong, stable families; and therefore, their welfare needs to be viewed within the context of their families. This the convention fails to do.
It is especially harmful to view children as independent economic units, which is the basis for claims for children's rights as expressed in the convention. The basic logic used in the convention is that a child's "well being" [Article 40] comes from care and protection rights, individual personality rights, and human dignity rights. These rights in turn are grounded in a money market economy aimed at economic development. Article 27 states the "States Parties [countries that have ratified the convention] recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral, and social development." The convention would accomplish this through "competent authorities [Article 9]," "access to scientific and technical knowledge and modern teaching methods [28]," regulation of work by the state [32], use of mass media to ensure dissemination of information from around the world [17], the use of technology to ensure health and the abolition of "traditional [health] practices prejudicial to the health of children [24]," etc. The convention clearly sees "well being" as dependent upon a modern economic system with its specialists, technology, mass media, and standards for living and development.
However, many people do not view highly competitive, specialized, and centralized societies as very human at all. As Helena Norberg-Hodge wrote: “’One market’ implies community and cooperation and the ‘Global Village’ sounds like a place of tolerance and mutual exchange. There is almost no recognition that economic unification and technological uniformity are actually causing environmental destruction and the disintegration of communities. Rather than bringing people together, today's economy is increasing divisiveness and widening the gap between rich and poor.” (Ancient Futures: Learning From Ladakh [San Francisco: Sierra Club Books, 1991], p. 155.)
It does children a serious disservice to emphasize their individual rights and economic individuality at the expense of social, psychological, and emotional needs that can best be met by their families. It also fails to serve their much touted “best interests.”
The convention does not support families. To be sure, it pays brief lip service to them with statements like, “The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.”
But such statements are stripped of real impact by Article 9 which reads, “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.”
More serious than the convention’s failure to support families is the way it undermines families. The convention repeatedly gives decision making authority to “competent authorities” (professionals and experts in child development, child psychology, social work, etc.) rather than to parents. This causes problems. First, as Guggenheim points out in the book cited above, parents are most likely to know their children best and to care the most for them. This does not mean that parents will always make good decisions, but turning decisions over to experts does not guarantee good decisions either. When overwhelming problems such as poverty, war, racism, and genocide make parents incapable of making decisions in their children’s best interests, the real problems should be addressed. Undermining families and sometimes taking children away from their parents will not solve these problems.
Second, well meaning professionals and experts sometimes have distorted perspectives. Their experience focusing on the small minority of children who may have serious problems can lead them to make self-fulfilling prophecies for children who basically need more time to mature. In addition, some professionals are influenced by their own self-interest: the prestige of their profession, the number of clients they serve, job security, etc. Their comments and labels can reduce parents’ confidence and undermine the very families that children desperately need.
In addressing issues surrounding education, the convention unfortunately calls for compulsory education rather than compulsory attendance (Article 28). If schooling must be compulsory (a debatable point to many people), it is much safer to require attendance, which can be verified without intrusive measures like testing or review of curriculum and which allows freedom of thought. By contrast, compulsory education allows the state to dictate what knowledge, attitudes, and skills children must acquire and demonstrate.
Article 29 also concerns education and, at first glance, might also seem to cause concern. It states that education institutions (such as schools) “shall conform to such minimum standards as may be laid down by the State.” However, in the US it is already generally accepted by legislators and the general public that states can regulate private education, including homeschooling. Courts have upheld this practice and refused to overturn state regulations concerning homeschooling.
Does the Convention Pose a Serious Threat?
In light of the problems raised by the convention, how worried should we be about its impact on the US?
The convention was adopted by the UN General Assembly on November 20, 1989. As of November, 2008, all the countries that are members of the UN had ratified it except the US and Somalia. (The US has refused to ratify other UN conventions.)
Before a convention like this is ratified by the US, lawyers in the State Department assess ways in which it is at odds with current federal and state laws and constitutions. Any country can agree to the convention as it stands or modify it by adopting "reservations" (which state that the country will not observe certain parts of the convention) or "understandings" and "declarations" (which clarify how specific language will be interpreted by that country). Therefore, if the US were to seriously consider ratifying the convention, it would undoubtedly change provisions in the convention that are at odds with current US and state laws, the Federal and state constitutions, and widely accepted practice.
Then the convention must be sent by the President to the US Senate, approved by a 2/3 vote, and signed by the President. None of the 3 Presidents who have been in office since the convention was adopted by the UN has sent it to the Senate. It is unclear how likely the President-elect is to send it and, if so, when. In the past, it has taken three to five years for conventions like this to be ratified.
In other words, the convention will not be ratified in the near future. If it is ratified eventually, the US version will undoubtedly be limited to provisions that are already law in the US or that could easily become law independent of the convention. It is very important that statements that the convention would be “the law of the land” be seen in this context.
Among the reasons:
• The US has consistently passed such conventions with reservations and/or understandings and declarations that ensure that the convention is consistent with existing federal and state laws.
• The convention would most likely pass as a non-self-executing convention. This means that provisions that are not already part of state or federal law would not take effect until legislation was passed to enact them. (“All treaties are the law of the land, but only a self-executing treaty would prevail in a domestic court over a prior, inconsistent act of Congress. A non-self-executing treaty could not supersede a prior inconsistent act of Congress in a US court. A non-self-executing treaty nevertheless would be the supreme law of the land in the sense that—as long as the treaty is consistent with the Bill of Rights—the President could not constitutionally ignore or contravene it.” From an article by Frederic Kirgis titled “International Agreements and US Law,” May, 1997, available on the website of the American Society of International Law)
• Provisions inconsistent with the Bill of Rights would either be excluded before ratification or be subject to being overturned by US courts.
In sum, while the convention raises serious concerns, it is unlikely to be ratified in a form that will significantly impact US federal and state law. However, the ratification process could encourage discussions of children’s rights and the principle of “the best interests of the child.” (Of course, this would give supporters of families an opportunity to present their views as well.) Ratification would undoubtedly encourage advocates for children’s rights to press for more legislation. It would encourage the current trend to undermine families by turning to professionals through increasing preschool for children of younger ages, mental health and other screenings, etc.
What We Can Do
• The decisions we make for our own family and the examples we set strengthen the role of the family in our society. To maintain our rights, we must exercise them. We can homeschool, avoid preschool screening and other screenings, question institutionalized early childhood education, etc. Whenever possible, we can avoid experts.
• We can encourage other families by sharing our experiences, organizing local support groups, communicating with other family–oriented organizations, etc.
• We can share our ideas in informal conversations, homeschooling support groups, letters to the editor, during radio call-in programs, before school board meetings, with our legislators, etc.
Conclusion
If ratification of the convention becomes an issue, we will be better prepared to oppose it if we view it as part of larger issues and are aware of the factors that limit the changes the convention by itself would bring. Until it becomes an issue (if it ever does), we can strengthen our position on important issues by understanding and exercising our rights and responsibilities as families and working to prevent professionals and experts from taking over the roles of parents.
