U.S. ratification of the Convention on the Rights of the Child

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The United States has signed the UN Convention on the Rights of the Child (UNCRC), but is the only United Nations member state that is not a party to it.[1]

The UNCRC aims to protect and promote the rights of all children around the world. It was the first international treaty to integrate all human rights in reference to children, allowing them to participate in family, cultural and social aspects of life. It emphasizes the right to survival, development, and protection against abuse, neglect and exploitation. It also addresses issues with education, health care, juvenile justice and the rights of children with disabilities.[2]

Constitutional requirements[edit]

Under the United States Constitution, the ratification of treaties involves several steps. First, the president or his/her representative would negotiate, agree and sign a treaty, which would then be submitted to the U.S. Senate for its "advice and consent".[3] At that time the President would explain and interpret all provisions in the treaty. If the Senate approves the treaty with a two-thirds majority, it goes back to the President who can ratify it.

History and status[edit]

The United States government contributed to the drafting of the Convention. It commented on nearly all of the articles, and proposed the original text of seven of them. Three of these come directly from the United States Constitution and were proposed by the administration of President Ronald Reagan.[4][5] The Convention was adopted by the UN General Assembly on 20 November 1989 and came into effect on 2 September 1990.

On 16 February 1995, Madeleine Albright, at the time the U.S. Ambassador to the United Nations, signed the Convention. However, though generally supportive of the Convention, President Bill Clinton did not submit it to the Senate.[6] Likewise, President Bush did not submit the Convention to the Senate. President Barack Obama has described the failure to ratify the Convention as 'embarrassing' and promised to review this.[7][8] The Obama administration said that it intended to submit the Convention to the Senate, but failed to do so.[9] As of June 2019, the Trump administration has not submitted the convention for Senate ratification.[10]

States may, when ratifying the Convention, ratify subject to reservations or interpretations. Besides other obligations, ratification of the Convention would require the United States to submit reports, outlining its implementation on the domestic level, to the U.N. Committee on the Rights of the Child, a panel of child rights experts from around the world. Parties must report initially two years after acceding to (ratifying) the Convention and then every five years.[11]

Support[edit]

Many organizations in the United States support ratification of the Convention, including groups that work with children such as the Girl Scouts and Kiwanis.[12] The Campaign for U.S. Ratification of the Convention on the Rights of the Child argues that criticisms mentioned by opponents of the convention "are the result of misconceptions, erroneous information, and a lack of understanding about how international human rights treaties are implemented in the United States".[13]

The Campaign for U.S. Ratification of the Convention on the Rights of the Child is a volunteer-driven network that includes attorneys, child and human rights advocates, educators, members of religious and faith based communities, non-governmental organizations (NGOs), students and other concerned citizens.[14] They help to promote the ratification of the UNCRC. This campaign began in 2002 and works through a national Steering Committee, campaign meetings, youth advisory council and special events with many different partners involved. Its campaign is guided by its mission statement: "Our mission is to bring about ratification and implementation of the CRC in the United States. We will achieve this through mobilizing our diverse network to educate communities on the Convention, thereby creating a groundswell of national support for the treaty, and by advocating directly with our government on behalf of ratification."[15]

Opposition[edit]

Opposition to ratification comes from some religious groups. These, along with many political conservatives, claim that the Convention conflicts with the United States Constitution because in the original language of the Constitution "treaties" referred only to international relations (military alliances, trade, etc.) and not domestic policies. This has apparently played a significant role in the non-ratification of the treaty so far.[16] Senator Jesse Helms, the former chairman of the Senate Foreign Relations Committee, described it as a "bag of worms," an effort to "chip away at the U.S. Constitution."[17]

Some Americans oppose the CRC with the reasoning that the nation already has in place everything the treaty espouses, and therefore it would make no practical difference.[18]

Sovereignty and federalism[edit]

Legal concerns over ratification have mostly focused on issues of sovereignty and federalism.[19] Meanwhile, the U.S. Supreme Court has held that to some significant degree, no government—federal, state, or local—may interfere with the parent-child relationship.[20][21] The Heritage Foundation sees the conflict as an issue of international control over domestic policy: "Although not originally promoted as an entity that would become involved in actively seeking to shape member states' domestic policies, the U.N. has become increasingly intrusive in these arenas.[22] They express concern about "sovereign jurisdiction, over domestic policymaking" and "preserving the freedom of American Civil Society",[23] and argue that the actual practice of some UN Committees has been to review national policies that are unrelated, or are marginally related to the actual language of the Convention.[24]

Convention supporters point out that, under the Supremacy Clause of the U.S. Constitution, the Convention cannot override the Constitution because no treaty can override the Constitution (Reid v. Covert 354 U.S. 1 (1957)). In addition, as a "non-self-executing treaty", the convention does not grant any international body enforcement authority over the U.S. and/or its citizens, but merely obligates the U.S. federal government to submit periodic reports on how the provisions of the treaty are being met (or not). The sole enforcement mechanism within the Convention is the issuing of a written report.[citation needed]

Death penalty and life imprisonment[edit]

Article 37 of the Convention prohibits sentencing children under 18 years old to death or life imprisonment with no opportunity for parole. The United States does not comply with this article in its entirety. Three successive Supreme Court decisions have moved toward compliance:

  • In 2005, 22 U.S. states allowed for the execution of juvenile offenders. This ceased after the 2005 Supreme Court decision Roper v. Simmons, which found juvenile execution unconstitutional as "cruel and unusual punishment". The decision cited the Convention as one of several indications that "the United States now stands alone in a world that has turned its face against the juvenile death penalty".[25][26][27]
  • The 2010 decision Graham v. Florida prohibited the sentencing of juveniles to life imprisonment without the possibility of parole for non-homicide crimes. As of the Graham decision, six U.S. states prohibited such sentences in all cases.[28]
  • The June 2012 Supreme Court decision Miller v. Alabama held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile murderers. The ruling did not prohibit courts from imposing a considered life sentence.[29]

Parental rights[edit]

Some supporters of homeschooling have expressed concern that the Convention will subvert the authority of parents.[30][31]

One of the most controversial tenets of the Convention are the participatory rights granted to children.[32] The Convention champions youth voice in new ways. Article 12 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, the views of the child being given due weight in accordance with the age and maturity of the child ... the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child ...[33]

David M. Smolin argues that Article 29 limits the fundamental right of parents and others to educate children in private school by requiring that all such schools support the principles contained in the United Nations Charter and a list of specific values and ideals. He argues that "Supreme Court case law has provided that a combination of parental rights and religious liberties provide a broader right of parents and private schools to control the values and curriculum of private education free from State interference.[16]

Smolin, otherwise a proponent who urges U.S. reservations to the convention, argues that Article 5, which includes a provision stating that parents "provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention",[34] "is couched in language which seems to reduce the parental role to that of giving advice".[16], pages 81 & 90 The Campaign for U.S. Ratification of the Convention on the Rights of the Child argues that the Convention protects parental responsibility from government interference.[13]

The Campaign for the U.S. Ratification of the CRC provides information rebutting this and other proposed conflicts. The CRC does not outline any specific interference with school curriculums, nor would ratification prevent parents from homeschooling their children. In addition, it recognizes 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 ..." (Preamble to the CRC) and repeatedly underscores the pivotal role parents play in their children's lives. (Particularly with regard to Articles 3, 5, 7-10, 14, 18, 22, and 27.1) Under the Convention, parental responsibility is protected from government interference. Article 5 states that Governments should respect the rights, responsibilities, and duties of parents to raise their children. There is no language in the CRC that dictates the manner in which parents are to raise and instruct their children.[35]

Geraldine Van Bueren, the author of the principal textbook on the international rights of the child, and a participant in the drafting of the Convention, has described the "best interest of the child standard" in the treaty as "provid[ing] decision and policy makers with the authority to substitute their own decisions for either the child's or the parents' ";[36]

Issues within parental rights[edit]

1. The treaty addresses parental discipline and discipline in schools. There is a concern that it will eliminate parents' right to discipline. The UNCRC does not specify what discipline can be used, but enforces parents to provide guidance and direction to children instead of punishment. Educational discipline is addressed by eliminating mental or physical abuse and violence. Dress codes and singing the national anthem are not addressed and left to the school officials and governments to determine if either should be protected. [37]

2. The age of children and their ability to understand the UNCRC and the rights they get are an issue as well. Parents' decisions on how they address the UNCRC will help the development of children. Parental guidance should help children evolve and teach them to respect their own and others rights. [37]

3. Another concern is whether or not the UNCRC will give the children more rights than parents. Parents still have control over their children; for example, they can expect children to help around the house. The Convention only prohibits work that is harmful to their health or interfere with education. This concern, however, seems to show a lack of awareness that children are more vulnerable than their adult parents and thus require special protection. [37]

Other arguments[edit]

David Smolin argues that the objections from religious and political conservatives stem from their view that the U.N. is an elitist institution, which they do not trust to properly handle sensitive decisions regarding family issues.[16] He suggests that legitimate concerns of critics could be met with appropriate reservations by the U.S.[16], page 110

References[edit]

  1. ^ "Convention on the Rights of the Child". Article 11, Treaty of November 20, 1989 (PDF). United Nations General Assembly.
  2. ^ "United States Ratification of International Human Rights Treaties". Human Rights Watch. 2009-07-24. Archived from the original on 2012-03-05. Retrieved 2019-04-30.
  3. ^ Article II, Clause 2, Section 2 of the Constitution of United States (1788)
  4. ^ Gainborough, Jenni; Lean, Elisabeth (2008). Convention on the Rights of the Child and Juvenile Justice (PDF). Vol. 7. The Link. Archived from the original (PDF) on 2010-06-16.
  5. ^ Nancy E. Walker, Catherine M. Brooks, Lawrence S. Wrightsman, Children's rights in the United States: in search of a national policy (SAGE, 1999), page 40.
  6. ^ "The Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography". U.S. Department of State, Office of the Spokesman. 2002-12-24. Retrieved 2019-04-30.
  7. ^ Walden University Presidential Youth Debate, October 2008 Archived 2008-12-11 at the Wayback Machine
  8. ^ Geary, Patrick (2008-07-11). "Is Obama's win also a victory for children's rights?". Child Rights Information Network. Archived from the original on 2010-12-08. Retrieved 2010-01-18.
  9. ^ "Support the Convention on the Rights of Persons with Disabilities (CRPD)". www.unicefusa.org. Archived from the original on 2013-05-10. Retrieved 2013-04-18.
  10. ^ Cumming-Bruce, Nick (2018-06-05). "Taking Migrant Children From Parents Is Illegal, U.N. Tells U.S." The New York Times. ISSN 0362-4331. Archived from the original on 2018-06-08. Retrieved 2018-06-09.
  11. ^ "Committee on the Rights of the Child". Office of the United Nations High Commissioner for Human Rights. Archived from the original on 2011-03-21. Retrieved 2011-03-18.
  12. ^ "Partners". Campaign for U.S. Ratification of the Convention on the Rights of the Child. Archived from the original on 2011-07-25. Retrieved 2011-06-13.
  13. ^ a b Campaign for U.S. Ratification of the Convention on the Rights of the Child, CRC FAQs - Myths and Facts Archived 2011-04-08 at the Wayback Machine
  14. ^ "The Campaign for US Ratification of the CRC - About". childrightscampaign.org. Archived from the original on 2013-12-03. Retrieved 2013-11-25.
  15. ^ "The Campaign for US Ratification of the CRC - Mission Statement". www.childrightscampaign.org. Archived from the original on 2013-08-23. Retrieved 2013-04-18.
  16. ^ a b c d e Smolin, David M. (Spring 2006). "Overcoming Religious Objections to the Convention on the Rights of the Child". Emory Law Journal. Vol. 20: 83 – via HeinOnline.
  17. ^ Gunn, T. Jeremy (2006). "The Religious Right and the Opposition to U.S. Ratification of the Convention on the Rights of the Child". Emory Law Journal. Vol. 20: 117 – via HeinOnline.
  18. ^ Mason, Mary Ann (2005). "The U.S. and the International Children's Rights Crusade: Leader or Laggard?". Journal of Social History. 38 (4): 955–963. doi:10.1353/jsh.2005.0069. ISSN 0022-4529. JSTOR 3790484.
  19. ^ Rutkow, Lainie; Lozman, Joshua T. (2006). "Suffer the Children: A Call for United States Ratification of the United Nations Convention on the Rights of the Child". Harvard Human Rights Journal. 19: 161 – via HeinOnline.
  20. ^ Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925) (Supreme Court of the United States June 1, 1925).
  21. ^ Meyer v. State of Nebraska, 262 U.S. 390 (Supreme Court of the United States 1923). Meyer 262 U.S. 390 (1923)
  22. ^ Human Rights and Social Issues at the U.N.: A Guide for U.S. Policymakers Archived 2008-12-06 at the Wayback Machine
  23. ^ Marshall, Jennifer A.; Smith, Grace V. (2006-08-31). "Human Rights and Social Issues at the U.N.: A Guide for U.S. Policymakers". The Heritage Foundation. Archived from the original on 2010-02-23. Retrieved 2019-04-30.
  24. ^ Fagan, Patrick F. (2001-02-05). "How U.N. Conventions On Women's and Children's Rights Undermine Family, Religion, and Sovereignty: Supplemental Material: Quotations from CRC and CEDAW Committees of the United Nations". The Heritage Foundation. Archived from the original on 2009-09-06. Retrieved 2019-04-30.
  25. ^ Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons, 543 U.S. (2005) (Supreme Court of the United States).
  26. ^ "Questions and Answers on the UN Special Session on Children". Human Rights Watch. 2 May 2002. Archived from the original on 16 December 2013. Retrieved 24 July 2018.
  27. ^ "U.S.: Supreme Court Ends Child Executions". Human Rights Watch. 28 February 2005. Archived from the original on 16 December 2018. Retrieved 24 July 2018.
  28. ^ "Graham v. Florida Syllabus". Archived from the original on 2017-06-22. Retrieved 2017-06-27.
  29. ^ "Miller v. Alabama - SCOTUSblog". Archived from the original on 2014-07-06. Retrieved 2014-07-18.
  30. ^ "HSLDA - Library". www.hslda.org. Archived from the original on 2010-12-26. Retrieved 2011-03-24.
  31. ^ Klicka, C.J. "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. Retrieved 8/19/08.
  32. ^ Mason, M.A. (2005) "The U.S. and the international children's rights crusade: leader or laggard?" Archived 2009-06-16 at the Wayback Machine Journal of Social History. Summer.
  33. ^ "Article 12". Convention on the Rights of the Child. Retrieved 4/3/08.
  34. ^ Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3
  35. ^ "CRC FAQs- Myths and Facts". The Campaign for U.S. Ratification of the Convention on the Rights of the Child (CRC). Archived from the original on 8 April 2011. Retrieved 19 March 2011.
  36. ^ "112th Congress S. Res. 99". Government Printing Office. Archived from the original on 26 January 2016. Retrieved 26 September 2012.
  37. ^ a b c "The Campaign for US Ratification of the CRC - Questions & Answers about the CRC". www.childrightscampaign.org. Archived from the original on 2013-08-23. Retrieved 2013-04-18.