January-February 2009 Selected Content
Taking Charge - Larry and Susan Kaseman
UN Convention on the Rights of the Child: Cause for Concern but Not Panic
Because the US will soon have a new President, ratification of the UN Convention on the Rights of the Child may become an issue. The convention has serious problems. However, we will be more effective if we consider the convention as just one part of larger issues rather than as a major issue in and of itself. The larger issues include maintaining the rights of families and preventing professionals and experts from taking over functions that belong to parents. This column discusses problems with the convention, factors that prevent it from making significant changes in federal and state laws in the US, and what we can do.
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 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. 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)
But 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 it seems naive and short-sighted to view children as independent units whose best interests can be separated from those of 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 unhelpful 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 ," regulation of work by the state , use of mass media to ensure dissemination of information from around the world , the use of technology to ensure health and the abolition of "traditional [health] practices prejudicial to the health of children ," 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, 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 "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, and courts have upheld this practice and refused to overturn state regulations concerning homeschooling.
Other sections of the convention also raise concerns. For details, visit the HEM website at www.homeedmag.com and see the note at the end of this column.
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. A 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). 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 since the convention was adopted by the UN has sent it to the Senate. It is unclear whether President-elect Obama will 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. ("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 call-in radio programs, before school boards, with our legislators, etc.
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.
© 2008, Larry and Susan Kaseman