An Arguement for the Ratification of the Convention on the Rights of the Child by the United States of America

(A) INTRODUCTION


Somalia and the United States of America (hereafter referred to as the US) are nations that are different in countless ways. Be it geographically, economically, politically or culturally the two simply do not share any obvious similarity. However, one commonality is the fact that these two powers are the only members of the United Nations that have chosen not to ratify the Convention on the Rights of The Child[1] (hereafter referred to as the CRC). It could easily be argued that Somalia does not have the capacity at present to analyse, discuss and ratify conventions at a governmental level due to the conflict that is currently ravaging the country and endangering the tentative ceasefire. With that in mind, the focus must shift to the apparently stable, wealthy and democratic nation that is the US. Why would it opt to take such a stance in the face of near worldwide ratification?


Firstly, it must be stated that this essay is not an examination of US foreign policy or a critical review of its human rights record. The many topical concerns that human rights advocates may have regarding the US, ranging from the treatment of prisoners under the shadows of Abu Ghraib and Guantanamo Bay to the imposition of sanctions in the Middle East region, are not of relevance when considering the ratification of a treaty that will affect its own citizens. In addition, the fact that the US has what can be called a reserved or reticent record of ratification of human rights treaties is not necessarily negative as one could derive from this that the US only ratifies what it knows it can and more importantly will abide by[2].


It is my belief and the hope of many that the US will choose to ratify the CRC at some point in the near future and allow the children within its borders to benefit from the rights and protections embedded in the convention. However, in order for this to happen the US must be confident that ratification will help rather than harm children. In this regard the fears of Wilkins, Becker, Harris and Thayer (hereafter referred to as the ‘anti-ratification authors’) must be allayed and the issues outlined in their article arguing against the ratification of the CRC[3] addressed. In chapter (B), a brief look at the protections acknowledged to be in existence by the anti-ratification authors will be undertaken to understand what legal system would be in operation in the absence of the CRC. In chapter (C) there will be a more detailed analysis of the arguments put forward by the aforementioned authors regarding the extent of the CRC’s influence. In addition, chapter (D) will succinctly examine the constitutional barriers to ratification of the CRC in the US. Chapter (E) will address the issue of reservations for if the US does decide to ratify the CRC, the wish is that it will not do so without the aid of limiting reservations. Finally, chapter (F) will provide some concluding observations.


(B) DECLARATIONS OF CARE


When considering the concept of declarations and the effectiveness of such documents, the seminal one that comes to mind in the field on human rights is naturally the Universal Declaration of Human Rights[4] (hereafter referred to as the UDHR). However, if the anti-ratification authors’ arguments are to be considered valid, this declaration must be sufficient to protect and promote human rights throughout the world without the supplementation of additional legally binding documents. If this were true, and a typical example of the power and standing of declarations, then those made in relation to the rights of the child would not need the CRC to ensure the full protection and development of children.


The UDHR is not a legally binding document and as such should only provide inspiration and guidance to the nations of the world. Although it has been used as an interpretive guide in the area of human rights and argued to possess indirect legal effect, the declaration is not a traditional legal instrument or one that is capable of creating legal rules[5]. This is further highlighted by the near unanimous belief held by members of the United Nations that although the UDHR was of weighty moral and social importance, it did not impose legal obligations upon them[6]. It would therefore appear that despite the obvious value and importance that declarations have, they can be of limited use when one considers the practical realities of a world controlled by a defined legal system.


The 1924 Declaration of the Rights of the Child[7] (hereafter referred to as the Geneva Declaration) is the first of two comparable declarations highlighted by the anti-ratification authors[8] as providing protection for children prior to the CRC. The Geneva Declaration did not attempt in any way to bestow rights upon the world’s children[9] but instead equated the concept of rights with ideas of care and protection[10], at times to an unrealistic extent[11]. This can still be viewed as laudable however, when one considers the era that the Geneva Declaration was framed in and the fact that the UDHR would not be in existence for over two decades. However, the fact remains that no rights were created for the child and the system in place to safeguard the lives of children was merely a paternalistic one. Indeed, with the benefit of hindsight the Geneva Declaration can be considered a document inspired by societal and welfare concepts rather than one which is in line with the human rights motivated instruments of today. This is due to the fact that the obligations of states were not specifically considered or highlighted[12], which is quite integral to modern human rights instruments.


If the Geneva Declaration can be equated to an overbearing paternalistic figure, then the Declaration of the Rights of the Child of 1959[13] (hereafter referred to as the 1959 Declaration) can be seen as a father who recognises that his child is ready for the world but still does not wish to let go. The 1959 Declaration proscribed children special protection based on their best interests[14], highlighted a child’s entitlement to a name and nationality[15] and contained a non-discrimination clause[16] which although is considered standard today, was a new concept at the time[17]. The fact that a child’s best interest had to be considered and that he/she possessed a name and nationality would appear to acknowledge that children had their own unique identity. This is a very important concept as it is individuals who possess rights and thus to attain such rights, children need their individuality recognised.


Regarding the Geneva Declaration, the 1959 Declaration can be argued as a definite progressive step forward in the area of children’s rights. It can also be considered more legitimate and credible that the 1924 Geneva Declaration due to the input from numerous culturally distinct nations[18], although it must be stated that the UDHR would have paved the way for such credibility. In addition, it tempered the idea that the child would be first to receive relief in times of distress[19] which was not only a necessary practical adjustment but one that surely assists in discouraging the purely paternalistic view of children. However, it must be noted that not all commentators would see such an adjustment as a positive[20]. Despite such a complimentary assessment, the 1959 Declaration still lacked any binding legality and thus can be relegated alongside its predecessor to the realm of mere moral inspiration or force. By not ratifying the CRC, the US is endorsing this weak global system of protection and the anti-ratification authors appear satisfied with such a structure.


Returning to the initial argument made in this chapter, the UDHR must be capable of protecting and promoting human rights without the assistance of any legally binding instruments if the declarations made with respect to children are to be considered sufficient in the absence of the CRC. Without doubt, the cause of human rights and the UDHR itself would be defunct if it were not for the International Covenant on Economic, Social and Cultural Rights[21] (hereafter referred to as the ICESCR) and the International Covenant on Civil and Political Rights[22] (hereafter referred to as the ICCPR). In fact the UDHR was always recognised as a stepping stone toward a covenant or binding treaty with relation to human rights[23]. The reasoning behind this is that declarations are merely aspirational whereas a covenant such as the ICCPR is binding upon states[24] and thus of greater value to the people upon which such an instrument confers rights. Regarding this point, it is the opinion of this author that the CRC is the necessary and obvious progression from the declarations of 1924 and 1959 and is analogous to the relationship between the UDHR and the two covenants[25].


The anti-ratification authors would naturally argue that the declarations with respect to the rights of the child are supplemented by domestic law in the US and indeed other nations. However while this is true, the fact that the CRC is seen as an intrusion by the aforementioned authors whilst the declarations are considered laudable in their aims, demanded that attention be given to such declarations to highlight their inadequacies.


(C) CONCERNS OF ANTI-RATIFICATION AUTHORS


(1) The Modern Family


The anti-ratification authors fear that the CRC is clearly at odds with the long established American notions of the family unit[26]. However the preamble of the CRC specifically describes the family as the fundamental group of society deserving of protection and notes that account must be taken of the traditions and cultural values of each people. Now, one must accept that the preamble is not legally binding and thus not enough to dissipate any fears regarding the American family, but as the lack of binding legality with regard to the declarations previously discussed did not seem to worry the anti-ratification authors, the preamble of the CRC should be taken at face value. The evolution of the idea of family is highlighted as a negative result of the involvement of the United Nations[27] but this is neither a negative nor a new occurrence. Collins dictionary defines the family in such varied terminology from a ‘social group consisting of parents and their offspring’ to ‘all the people living together in one household’[28]. Other dictionaries have even seen fit to rely upon religion or common philosophies as defining elements of the family[29]. The fact of the matter is that the concept of family is constantly adjusting to newly developing social norms and is a concept in transition[30]. Any issue that the anti-ratification authors have with the individualised theory of the family[31] is not helped by their reliance on material which appears to pit the causes of women and children against that of the family[32]. Human rights have never been about conflict and should not be viewed in such light.


The concerns that the CRC not only makes children the equal of their parents but also creates difficulties surrounding the raising of a child by demanding that parents ensure the child’s development but do so without negatively impacting upon the child’s own identity are worth addressing[33]. Firstly, any equality that the child may share with its parents under the CRC’s regime is equality in the sense that the child is a rights holder also. This means that even though the child may be dependant upon its parent in a variety of ways, he/she will not be denied rights simply due to the lack of complete independence or autonomy[34]. Such equality is not diminishing the position of parenthood but rather recognising the position of childhood. The aforementioned second concern is no more an issue than is the realisation of countless other rights in the human rights framework. Yes, it is a ‘tall order’[35] and certainly involves a balancing act but no more than for instance the balancing of the guarantee of the right to health with the associated cost as faced in South Africa in recent times to name but one example. The fact that the CRC is ambitious in its ambit and that states parties face constructive criticism (as they do with numerous other human rights treaties) at times with regard to their obligations should be seen as positive if one truly wishes the development of not only child but also human rights in general. In addition, the required maintenance of the child’s identity is not so far removed from the recognition of such an identity seen above in the 1959 Declaration, and as such should not be viewed with trepidation.


The anti-ratification authors highlight the difficulty of universality with regards to the CRC and childhood. The East/West and North/South divides will always be a factor in the arenas of childhood and the family but the CRC should not be viewed as a Western import or an instrument which demonises the “South”[36]. In fact the CRC can be viewed as the opposite of divisive in the sense that it embodies both civil and political rights as well as economic, social and cultural ones[37] and is so widely ratified. There is no doubt that childhood is somewhat of a Western luxury and one that is far removed from the reach of many children in the so called South but the CRC is by no means a collection of Western ideals. For instance there is evidence, that treating children as children can help a country in economic terms by freeing up jobs for the older population and allowing children attend school to ensure an educated work force in the future[38]. There is no hint here of Western held values but simply cold, hard economic concepts. In addition, the CRC is simply re-affirming some rights that appear in the ICESCR[39], which is a widely ratified covenant in many non-Western states. It must also be pointed out that the issue is somewhat moot and does not bolster the claims of the anti-ratification authors for the simple fact that the US is by no means a nation which faces analogous problems to those endured in the South.


Finally in this section, issue must be taken with the claim that the CRC is an undesirable incursion into a framework of rights such as the one that exists in the US[40]. While it may be true that there are countries in greater need of the CRC’s influence to safeguard the welfare and development of children, this by no means excuses the US from seeking to improve the rights of its own children. Also, to claim that the rights of children are guarded and thus the need for ratification of the CRC negated while at the same time claiming that the CRC is charting new territory and creating new rights, is to rely on two distinct postulates which are not easily reconciled with each other. The CRC is a unique instrument that is creating new rights for children but it is not attacking the ideal of the family or trying to impose Western values and standards on the rest of the world.


(2) The Autonomous Child

There is no doubt that the anti-ratification authors believe children not to be autonomous and this naturally has implications as to what rights they see children fit to possess. If autonomy incorporates self determination, political freedom and moral independence upon which few limits can be placed, its association with children can be considered necessary and yet dangerous.


Much of the debate involves how children are viewed and how the concept of autonomy would affect or distort this view. Historically, children were seen as small adults rather than future ones[41]. This naturally would deprive children of the innocence of childhood and force them to become functioning members of society with lesser standing. This aside, the small adult would posses a level of control over his own affairs, despite having to endure the hardships of the adult world. On the contrary, to take the latter view and see children as mere future adults diminishes their status as existing, individual human beings[42]. It allows them to realise the ideal of childhood but ignores any mature abilities or traits they may presently possess. So therefore, children must be considered both; small adults to ensure that they are not merely viewed in a paternalistic and retarding fashion and future adults to recognise the fact that they are not ready for the full responsibilities of adulthood.


Limiting the rights that children have in order to protect them and develop their personal competence as a way of teaching rather than assigning autonomy[43] is an interesting concept that must be addressed. Firstly, it should be noted that there is no singular view regarding the teaching of children[44] and thus the teaching of autonomous capacity will take numerous forms. The anti-ratification authors, in their discussion of this point, appear to suggest that the CRC not only makes children autonomous but more importantly removes the guidance needed to understand and truly appreciate such autonomy. Granting a child rights such as those found in Article 12 is surely evidence that this is not true. By recognising that those children with sufficient capacity should be involved in all maters that concern them, the article also therefore insinuates that there are children who will not have a say in issues affecting them. Granting rights to children does not alleviate the burden of teaching the proper employment of such rights by their parents. Indeed, granting autonomy while still teaching it is the realisation of the aforementioned suggestion to see children as both small and future adults. In other words, the present autonomy of the child can be secured while also attempting to safeguard the child’s future autonomy[45].


Finally in this section, brief attention needs to be given to the mention made by the anti-ratification authors of the protectionist laws which are applied to children in the US[46] and which seemingly necessitate the denial of child empowerment. Firstly, it should be noted that these types of laws are common in many nations around the world, countless numbers of which have ratified the CRC. Secondly, many of these laws can and do co-exist with the obligations under the CRC. Thirdly and in conclusion, safeguarding children from exploitation, which is one of reasons listed for the protectionist laws, is left in the hands of states parties by the CRC[47] anyway.


(3) Free Speech and Free Association


Article 13 of the CRC appears to strike fear in the hearts and minds of the anti-ratification authors. Building on the right to freedom of expression (a right held sacred in the jurisdiction examined by the anti-ratification authors), the aforementioned article also contends that ‘this right shall include freedom to seek, receive and impart information and ideas of all kinds’[48]. This additional point secures the concept of the right to freedom of expression as without access to outside knowledge and information, how is an individual to be considered truly capable of expressing oneself? This idea falls into line with the axiom that there in no right without a remedy in the sense that it takes more than just the granting of a right to secure it. The only difference is that rather than demanding remedies to protect against the violation of a right, Article 13 calls for resources to facilitate the realization of that right. However, it should be noted that although the Article is well framed and intentioned, it cannot be directly employed to demand access to information[49].


The CRC should not be construed as a weapon to use against the case law and precedent of the United States Supreme Court. The anti-ratification authors highlight Ginsberg v New York[50] as an example where there could be conflict if the CRC was to be ratified by the US. Firstly, it should be noted that there was no unanimity in the deciding of this case and there was also fear that the Supreme Court was unadvisedly acting as a censorship board without proper understanding of what to censor for the benefit of young (and indeed old) people[51]. This highlights that even in the absence of the CRC there was division as to how the case should be decided and who was really benefiting from such a decision. However, with that in mind the impact that the CRC may have had deserves consideration. In truth, the above case was not a typical debate about law but rather one influenced by morality. This is because matters involving the concept of sex or as in this case pornography are controversial and demand moral judgments. The commentator Hart states that ‘not all criticism of law made on moral grounds is made in the name of justice’[52]. Though he was explaining that some laws would be criticized merely because they required men to act immorally, this notion can be interpreted in reserve to show that laws can be justified on moral grounds even if they are not in the best interests of justice per se. To paraphrase, limiting the access children may have to pornographic material can be justified by public morality. In this way, Ginsberg v New York would not be undermined[53] by the CRC as Article 13 also includes the proviso that restrictions on the child’s freedom of expression can be made for the protection of public morals[54] (a point not highlighted by the anti-ratification authors).


The anti-ratification authors’ mention of Parham v J.R.[55], another case from the United States Supreme Court, is seemingly used to highlight the lack of capacity that children possess so as to tarnish the validity of their free expressions. Two points must be made in this regard. Firstly, although Chief Justice Burger is quoted as placing the burden of decision making regarding medical treatment in the hands of parents, it must also be highlighted that he felt that this burden (or indeed privilege) was not absolute[56]. This means that even in the absence of the CRC, there was still acknowledgement that the child must have a say or be consulted in certain situations (though what those situations are is not clear). Secondly, there is evidence to show that in the field of medical treatment, there is an underestimation of what a child’s understanding and capacity for decision making actually is[57]. However as with the quoting by the anti-ratification authors of Ginsberg v New York, the choice of quote from Chief Justice Burger is designed to impress upon the reader that children are highly incapable and thus invalidate the respect that the CRC bestows upon them via articles such as Article 13.


Finally in this section, reference must be made to the fact that the anti-ratification authors feel the need to highlight that the CRC ensures a child’s right to freedom of association and peaceful assembly[58]. Though this is true and guaranteed by Article 15 of the CRC, this is a common provision found in countless other human rights treaties. Indeed, even the limitations placed upon the right that are present in those other treaties have also found their way into the CRC[59]. So the objection that the aforementioned authors have must simply be that the CRC seeks to grant this established right to children. Age limits for clubs or dance halls and laws regarding unaccompanied minors can co-exist alongside the Article 15 right due to the limitations found in Article 15(2) so there would not be a dramatic regulatory change should the US move towards ratification. In conclusion and on an aside point, the fact that there is a huge number of young children working in the world today[60] means that there most certainly is a pressing need for a right which has traditionally been used to establish trade unions (i.e. freedom of association and peaceful assembly) to be available to them. Although this author does not at all advocate child labor new, progressive and possibly radical solutions may be needed to address the problem.


(4) Religion


Religion and human rights are at times both opposing and converging forces and can be seen in all areas of the human rights framework, including the rights of the child. Indeed the CRC was almost put in jeopardy due to the strongly held opinions concerning the extent of any right to freedom of religion[61]. This is despite the fact that religious groups can be accredited with assisting in the creation and continuation of human rights[62]. The problem lies in the reality that there is no such thing as religion, but rather religions and it is this multiplicity which causes the difficulties. All religions will have their own concepts of right and wrong and thus will never be wholly in line with the ideal of the universality of human rights. In addition, if human rights are to be truly universal then surely they must be secular to avoid bias, which isolates or indeed offends some states that are defined by religion. Knowing this, the right of a child to choose a religion, a choice that could very well define the child’s adulthood in countless ways, must be examined and justified if Article 14 of the CRC is be commended rather than condemned.


It is hard to identify whether the anti-ratification authors agree or disagree with the majority opinion of the cited case law[63] but what is clear is their fear that Article 14 will result in the transfer of the religious education of children to schools and peer groups. Firstly, it must be stated that Article 14 merely allows children to manifest their own religious and belief structure and thus there is no cause for the automatic assumption that a child will choose to turn away from the spiritual teaching of their parents, the very people whom have unrivalled influence in the child’s early life. Granted and particularly regarding younger children, there is a danger that the teaching of religion in both the home and at school can lead to confusion and a conflict of interests in the child’s mind[64]. It must be acknowledged though, that such a problem will only occur when the child has not yet developed a capacity to distinguish between opposing viewpoints and thus is not in a position to exercise many of the CRC’s rights anyway. However, if opposing viewpoints are taught at school and in the home (and even if a school’s teaching of religion can not be avoided by the usual methods of secular schooling or exemption from class) this simply provides the child with options to choose from, which is the essence of freedom. If the child is allowed only one insight into religion, the choice is to accept or reject that religion and the child is therefore being given an ultimatum rather than a choice. In the same way, any issues that arise when the parents or guardians are of different faiths[65] should be viewed in the same light and considered a positive influence on the child’s development.


Some additional points on this matter also require mention. The text of Article 14 of the CRC is not dramatically different to that found in Article 18 of the ICCPR, an instrument already ratified by the US. Indeed both articles give due respect to the role that parents and guardians play in the religious development of the child. The only difference is that the CRC is assigning a right that already exists for adults to children more directly, which is hardly surprising as the CRC’s focus is naturally upon children. This however, does not disenfranchise the role that parents previously held in accordance with international instruments such as the ICCPR. For instance, the aforementioned problem of religion being taught in schools as well as the home has been addressed by the Human Rights Committee with relation to the ICCPR[66] to the extent that ‘provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians’[67]. With this in mind, it is again difficult to fathom how the anti-ratification authors believe that Article 14 of the CRC will abandon children to the ‘moral and ethical training of the schools and their peers’[68], simply because children will be able to choose their own religion.


Finally, the conclusion by the anti-ratification authors that the resulting outcome of Article 14’s influence is not compatible with excerpts from the preamble of the CRC[69] is not validly reached. As stated above, the guidance of parents or guardians is acknowledged not only in the CRC but also in other international instruments. The protection therefore that must be afforded to the family to allow them assume responsibility for their children[70] in this regard is being realised. In addition, ensuring that a child grows up in an atmosphere of ‘love and understanding’ as required by the preamble,[71] does not necessitate the delegation of religious teaching solely to families. With that said, it is hard to understand how the preamble and Article 14 of the CRC can not be interpreted in a harmonious fashion.


(5) Privacy


The anti-ratification authors’ comment on the child’s right to privacy (as safeguarded by Article 16 of the CRC) focuses primarily upon medical treatment and in particular the notion of abortion. In the decision of Roe v Wade,[72] responsibility for such a hotly debated topic was assumed by the courts and thus removed from the democratic sphere. This resulted in a politicisation of the law in the US and made the selection of judges the primary concern of incoming presidents[73]. Surely it is more appropriate for such a matter to be debated openly by the elected representatives of the people before any decision as to its merits is arrived at. However, as the courts in the United States have now begun to develop precedent on the issue, what is left to be considered is to whom abortion rights should apply.


It is true that there was concern expressed by some judges about leaving the decision to have an abortion in the sole hands of a child[74] in the famous case of Planned Parenthood v Danforth[75]. However it must also be noted that the court acknowledged that giving a power of veto to parents would not enhance or protect the family unit[76]. This point is of significance as throughout their arguments, the anti-ratification authors have sought to highlight the importance of the family and how the CRC would diminish its status. The degree of privacy granted to a child in the above case is no less than that which Article 16 would guarantee. The court was aware that allowing parents solely to make such important decisions for their children would have a negative impact on family life. By respecting the child’s privacy, parents would still have the option to provide guidance and allow the child make its decision in the aforementioned atmosphere of love and understanding[77]. In addition the court highlighted the fact that constitutional rights were possessed by minors as well as adults and could not be denied on the basis that the age of majority[78] had not yet been attained. This comment is worth mentioning as if the same logic was applied to human rights; the addition of the CRC to that framework would seem both reasonable and natural.


Moving on to the idea that children will have the same rights as adults in the realms of abortion and pro-creation if the CRC was to be ratified, again the point must be stressed that the above case has already recognised the validity of a child’s privacy rights, despite the fact that some judges were hesitant about granting those rights. The CRC would not therefore be creating new rights or establishing equality in those areas. The anti-ratification authors need to take note of the fact that states parties to the CRC still have laws regarding age of consent which remain compatible with their obligations under the CRC. Also, although there are commentators who suggest that such laws of consent are more relevant in regulating situations where adults seek to have sex with minors[79], the fact that those laws are in place highlight that minors do not have the same rights as adults. Leaving pro-creation aside and considering abortion, it needs to be understood that the moment a child becomes pregnant they enter an adult world de facto and thus should be able to operate in such a world de jure.


(6) Concluding Arguments


After analysing the relationship between the autonomous child and the family as well as some specific rights that apply to the child via the CRC, the anti-ratification authors concluded their arguments with a focus on the best interests of the child and a hint that the CRC does not act positively in that regard[80]. This opinion may be based on the fact that the CRC does not automatically assume that parents will always act in the best interests of the child,[81] which surely would appear to be an attack on the family unit in the eyes of the anti-ratification authors. In truth, such an assumption would be dangerous to make and would abandon children to the absolute will of their parents. The simple fact that there is suspicion in the material that the anti-ratification authors themselves rely on, regarding how some adults see child autonomy as a way of liberating themselves from the responsibilities of child care,[82] surely shows that parents will not always act in the best interests of the child. Unfortunately there is no definition as to what constitutes the best interests of the child but it is the hope of this author that policy makers and courts look to the benefit that a child will accrue from a decision apparently made in his/her interest. What is clear however is that the CRC is not acting contrary to those interests.

Finally in this chapter, it must be noted that I fail to see what relevance the anti-ratification authors consider a ‘traditional heterosexual marriage’[83] to have to the rights of a child under the CRC. Granted, it may be considered the ideal atmosphere for a child to grow up in but as the concept of family develops and adjusts to modern times, there is less of a need for the terms heterosexual and marriage to be coupled together. In addition, the social attitude or criminal propensity of children is not solely determined by the presence or lack thereof of a stable two-parent household. Although family is naturally a very relevant factor, other equally important aspects such as poverty show that there is no easy-fit correlation between criminality and broken homes[84]. Child autonomy will not lead to broken marriages, which in turn will not automatically produce future child delinquents and the CRC will not remove all authority from parents regarding the best interests of their child. However, nor shall the CRC wilfully abandon children to the absolute will of all parents in all circumstances and at all times.


(D) CONSTITTIONAL BARRIERS


The remaining argument put forward by the anti-ratification authors centres around federalism and the separation of powers. This state versus nation battle is as old as the United States of America itself and derives from the fact that the ancestral (and indeed present day) citizens of the US did not want a king in Washington merely replacing the one in England. Due to this, there are some areas of law that lie outside the reach of congress and are the sole concern of the individual states. This naturally leads to different states having different laws regarding the same subject, which although fascinating can prove troublesome. However, the anti-ratification authors also suggest that due to this legal phenomenon the CRC cannot be ratified in the US as Congress lacks the power to regulate family law which is an area under possession of the states. Though this postulate strictly lies outside the reach of this essay, a brief consideration of it is necessary.


Firstly, it must be stated that the selected case law provided as a basis for this argument by the anti-ratification authors is definitive on the matter[85] and the courts in the US have previously struck down congressional acts which in every other way could be objectively considered to be positive and necessary legislation. There is also no point is arguing the extremely tenuous proposition that children and their development into future tax-paying adults are thus essential parts of the economy and somehow covered by the “Commerce Clause”, which as outlined in the aforementioned case law demands more obvious economic links for Congress to validly regulate such an area. In addition, even among those who advocate the CRC there is acceptance that family law (and thus children) lies outside the realm of the “Commerce Clause”[86]. However it must be noted that there has never been an occurrence when a treaty has been invalidated on federalism grounds[87], which is exactly what the CRC is.


Regardless of this, a point must be made in reference to the case of Missouri v Holland[88]. The anti-ratification authors acknowledge that the CRC could be ratified under the reasoning found in this case. However, they also state that this reasoning is ‘now-discredited’[89]. Though they are entitled to cast doubt upon the chances of reliance of future courts upon such reasoning, Missouri v Holland remains good law. It may be a feverishly debated topic as to whether the case was decided correctly but this does not change the reality of its standing[90]. In addition, due to the debate that surrounds this case there is ample scope to argue that Congress does indeed have the power to ratify treaties such as the CRC (though there is also scope to deny that proposition)[91].


Whether the CRC comes directly into conflict with American constitutional law or not, a treaty as important as it should not be ratified by way of legal trickery or on the basis on dubious precedent (though I do not concede that Missouri v Holland falls into such a category).. There is already much debate about how the lawyers of the world are affecting the democratic process of legislating[92] when human rights are involved and the CRC should be ratified in a transparent and sound fashion to avoid criticism or indeed constitutional challenge in the US. At the end of the day, the reality is that the US has ratified other human rights treaties in the past and the Clinton administration did sign the CRC with full awareness and understanding of federalist barriers. It is hard to believe that nothing could or would be done to facilitate the ratification of the CRC if there was public support and political will to do so. Understandably, the anti-ratification authors will currently use federalism to bolster their arguments against the CRC but it is hard to believe that they would advocate a situation where whole areas of law were banned from being the subject matter of treaties, a state of affairs that could result from courts strictly interpreting federalism[93].


(E) RESERVATIONS


If the anti-ratification authors’ views are not embraced at a national level in the US and if the legal barriers that the aforementioned constitution has erected are dismantled, there still remains the issue of what fashion of ratification the US will choose to implement the CRC. There is a widely held fear that if the US eventually does ratify the CRC, it will only do so with numerous accompanying reservations[94]. As the crux of this essay has been the defence of the CRC and the rebuking of the anti-ratification authors’ arguments, there is now a need to attempt to highlight the requirement for ratification without reservation.

The unfortunate reality of reservations is that they excuse a reserving state from some obligation thought important enough to be made a provision of an international treaty. Without doubt they are used as an effective negotiating tool to bring as many states parties to the table as possible but there is also the belief that they should only be used at this early stage of treaty discussions and discarded with once domestic legislation has been brought in line with treaty obligations[95]. Basically this view would advocate the use of reservations during the period of transition but not on a permanent basis. However, unfortunately this view is not a commonly held one and this leads to a situation where the standards of human rights treaties are being put in jeopardy in order to ensure participation on a global scale[96].


With respect to the CRC, the fact that it does not permit derogation from any of its provisions[97] (a fact uncommon in most international treaties) may act as encouragement for states parties to ratify with reservations as the lack of derogable provisions would worry many governments in power. However this does not justify the type of reservations that have been made, especially with regard to religion. The freedom of religion guaranteed by Article 14 for example is blatantly denied by the reservations of states such as Oman which does not consider itself bound by Article 14. This is due to the fact that a child in the Muslim religion must abide by the same faith as that of his father[98] and also the acceptance regarding punishment for apostasy. In another example the attempt to embrace the Muslim notion of Kafalah into the CRC still was not enough to stop reservations being made[99] regarding the CRC’s adoption provisions. This is regrettable as Article 21 of the CRC, which is one of two articles concerning adoption, is the only time that the best interests of the child is made the paramount consideration and not merely a primary concern as with the rest of the CRC. It must also be stated that other religious reservations, not based on the Muslim faith of Islam, can also be considered worrying. In this regard, reservations made by the Holy See can not be regarded as genuinely in line with or helpful to the CRC’s progress and impact[100].


The above examples highlight how reservations are cynically being used to deny some of the rights that are embodied in the provisions of the CRC. This is a fact that has not gone unnoticed by the Committee on the Rights of the Child[101] and more importantly should be used as evidence that reservations are not in the best interests of the world’s children, which is the supposed purpose of a treaty such as the CRC. Naturally there are cultural relativist arguments to be made with respect to reservations but they lie outside the scope of this essay. The anti-ratification authors have debated the impact that the CRC would have for the children of the US and this essay has attempted to counter the negative spin that the aforementioned authors endeavoured to associate with such an impact. What must be stated however is that the concept of reservations was not considered by the anti-ratification authors when criticising the CRC or by this author when defending it. With that in mind, it is the hope of this author that the concept of reservations will remain a notion that is not considered if the US chooses to ratify the CRC.


(F) CONCLUDING OBSERVATIONS


The reasoning behind this essay was to attempt to address the concerns that the anti-ratification authors had regarding the implementation of the CRC and to also try to persuade the US that ratification is in the best interests of its children. There is no doubt that the anti-ratification authors feel that the domestic law in place in the US is at the very least sufficient and perhaps superior to the safeguards and rights that are to be found in the CRC[102]. Their reasoning was based on the extreme importance that they attached to the notion of the family, an importance that clearly disregarded the input of the child at times. In this regard, the autonomous child which the anti-ratification authors believed would be created by the CRC was considered a serious threat to traditional American ideals. However, this extreme idea of autonomy can surely be disregarded if the policy makers in the US simply assess the impact that the CRC has had in countless other nations and realise that laws protecting and regulating children are not suddenly abandoned after ratification of the CRC.


Finally it must be stated that the anti-ratification authors constantly sought to highlight how the CRC would result in thrusting children into a world that they were not ready for. Though this paternalistic approach may be considered admirable, it underestimates the competence that children such as Iqbal Masih and countless others possess to understand, affect and change the world that they live in. The CRC attempts to guarantee a childhood for children but gives them tools in the form of rights to deal with the realities and intrusiveness of adulthood. In the end of the day children must live in an adult world that was created without them and as a poet once orated ‘Child of our time, our times have robbed your cradle. Sleep in a world your final sleep has woken’[103]. Protection from the world is not enough. Participation is needed.


BIBLIOGRAPHY

[1] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
[2] Henry J. Steiner and Philip Alston, International Human Rights in Context (2nd Edition, Oxford University Press, Oxford 2000) 1029-1030.
[3] Richard G. Wilkins and others, ‘Why The United States Should Not Ratify The Convention On The Rights Of The Child’ (2003) 22 St. Louis U. Pub. L. Rev. 411.
[4] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).
[5] Ian Brownlie, Principles of Public International Law (4th Edition, Clarendon Press, New York 1990) 570-571.
[6] H. Lauterpacht, International Law and Human Rights, supra note 2 at 150.
[7] Declaration of the Rights of the Child (adopted September 26 1924) League of Nations Official Journal Spec Supp 21, at 43.
[8] See supra note 3 at 411.
[9] Susan Marks and Andrew Clapham, International Human Rights Lexicons (Oxford University Press, Oxford 2005) 19.
[10] Cynthia Price Cohen, ‘The Developing Jurisprudence of the Rights of the Child’ (1993) 6 St. Thomas L. Rev. 7-10.
[11] See Principle (3) supra note 7.
[12] Geraldine Van Bueren, The International Law on the Rights of The Child (Martinus Nijhoff Publishers, The Hague 1998) 7.
[13] Declaration of the Rights of the Child (adopted 20 November 1959) UNGA Res 1386 XIV.
[14] See Principle 2 supra note 13.
[15] See Principle 3 supra note 13.
[16] See Principle 1 supra note 13.
[17] Jonathan Todres, ‘Emerging Limitations on the Rights of the Child: The U.N Convention on the Rights of the Child and Its Early Case Law’ (1998) 30 Colum. Hum. Rts. L. Rev. 163.
[18] See supra note 12 at 9-10.
[19] See surpa note 12 at 11.
[20] See supra note 17 at 164.
[21] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
[22] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
[23] See supra note 5 at 571-572.
[24] See supra note 2 at 142.
[25] The author is aware of the countless other instruments in the field of human rights, but the UDHR and the covenants represent the basis for general human rights around the world.
[26] See supra note 3 at 412.
[27] See supra note 3 at 413.
[28] Collins Concise Dictionary and Thesaurus (Harper Collins Publishers, Spain 2001).
[29] Robert Allen (ed), The New Penguin English Dictionary (Penguin Books, Finland 2000).
[30] See supra note 12 at 68.
[31] See supra note 3 at 413.
[32] Maria Sophia Aguirre and Ann Wolfgram, ‘United Nations Policy And The Family: Redefining The Ties That Bind A Study Of History, Forces And Trends’ (2002) 16 BYU J. Pub. L. 124-125 and 126 respectively.
[33] See supra note 3 at 414-415.
[34] See supra note 9 at 21.
[35] See supra note 3 at 415.
[36] See supra note 3 at 415.
[37] Nigel Cantwell, The Origins, Development and Significance of the United Nations Convention on the Rights of the Child, supra note 2 at 516.
[38] Maria Bozena Celek, ‘International Response to Child Labor In the Developing World’ (2004) 11 Geo. J. on Poverty L. & Pol’y 98-101.
[39] See supra note 38 at 105-106.
[40] See supra note 3 at 416.
[41] Malfrid Grude Flekkoy and Natalie Hevener Kaufman, The Participation Rights of the Child (Jessica Kingsley Publishers Ltd, London 1997) 12.
[42] See supra note 41 at 23.
[43] See supra note 3 at 417-419.
[44] See supra note 41 at 59.
[45] Michael D. A. Freeman, ‘Taking Children’s Rights More Seriously’ in Philip Alston, Stephen Parker and John Seymour (eds), Children, Rights And The Law (Oxford University Press, Oxford 1992) 66.
[46] See supra note 3 at 419.
[47] See supra note 12 at 262.
[48] See supra note 1 at Article 13.
[49] See supra note 12 at 133.
[50] Ginsberg v New York, 390 U.S 629 (1968).
[51] See supra note 50 for dissenting opinion of Mr Justice Douglas.
[52] H.L.A Hart, The Concept of Law (2nd Edition, Oxford University Press, Oxford 1994) 167-168.
[53] See supra note 3 at 420-421.
[54] See supra note 1 at Article 13(2)(b).
[55] Parham v J.R., U.S 584 (1979).
[56] See supra note 55 at 604.
[57] Priscilla Alderson, Young Children’s Rights (Jessica Kingsley Publishers Ltd, London 2000) 116-118.
[58] See supra note 3 at 422.
[59] See supra note 12 at 144.
[60] See supra note 38 at 89-90.
[61] See supra note 12 at 155.
[62] See supra note 9 at 309.
[63] See supra note 3 at 422.
[64] See supra note 41 at 113.
[65] See supra note 12 at 156.
[66] Human Rights Committee, ‘General Comment No.22: The Right to Freedom of Thought, Conscience and Religion (Art.18)’ (30 July 1993) UN Doc CCPR/C/21/Rev.1/Add.4.
[67] See supra note 66 at paragraph 6.
[68] See supra note 3 at 422.
[69] See in particular paragraphs 6 and 7 of supra note 1.
[70] See supra note 1 at paragraph 6.
[71] See supra note 1 at paragraph 7.
[72] Roe v Wade, 410 U.S 113 (1973).
[73] Conor Gearty, Can Human Rights Survive (Cambridge University Press, Cambridge 2006) 84-86.
[74] See supra note 3 at 423.
[75] Planned Parenthood v Danforth, 428 U.S 52 (1976).
[76] See supra note 75 at 75.
[77] See paragraph 4 of section (4) Religion.
[78] See supra note 75 at 74.
[79] See supra note 41 at 15.
[80] See supra note 3 at 424-426.
[81] Bettina Cass, ‘The Limits of the Public/Private Dichotomy: A Comment on Coady & Coady’ in Philip Alston, Stephen Parker and John Seymour (eds), Children, Rights and the Law (Oxford University Press, Oxford 1992) 140-143.
[82] Bruce C. Hafen and Jonathan O. Hafen, ‘Abandoning Children to their Autonomy: The United Nations Convention on the Rights of the Child’ (1996) 37 Harv. Int’l. L.J. 478.
[83] See supra note 3 at 427.
[84] Katherine S. Williams, Criminology (4th Edition, Oxford University Press, Oxford 2001) 380-385.
[85] See supra note 3 at 430-432.
[86] Susan Kilbourne, ‘The Convention on the Rights of the Child: Federalism Issues for the United States’ (1998) 5 Geo. J. on Fighting Poverty 331.
[87] Edward T. Swaine, ‘Does Federalism Constrain the Treaty Power’ (2003) 103 Colum. L. Rev. 413.
[88] Missouri v Holland 252 U.S 416 (1920).
[89] See supra note 3 at 433.
[90] Lainie Rutkow and Joshua T. Lozman, ‘Suffer the Children?: A Call for United States Ratification of the United Nations Convention on the Rights of the Child’ (2006) 19 Harv. Hum. Rts. J. 176.
[91] Mark Strasser, ‘Domestic Relations, Missouri v Holland, and the New Federalism’ (2003) 12 Wm. & Mary Bill Rts. J. 197.
[92] See supra note 73 at 81.
[93] See supra note 91 at 220.
[94] William Schabas. ‘Reservations to the Convention on the Rights of the Child’ Human Rights Quarterly 18.2 (1996) 473.
[95] See supra note 94 at 475-476.
[96] See supra note 12 at 398.
[97] See supra note 94 at 477.
[98] Kamran Hashemi, ‘Religious Legal Traditions, Muslim States and the Convention on the Rights of the Child’ Human Rights Quarterly 29.1 (2007) 215.
[99] See supra note 98 at 218-219.
[100] See supra note 94 at 478-479.
[101] Committee on the Rights of the Child, ‘General Measures of Implementation for the Convention on the Rights of the Child’ (3 October 2003) UN Doc CRC/GC/2003/5 at paragraph 15.
[102] See supra note 3 at 434.
[103] Extract from the poem ‘Child of out Time’ by Eavan Boland.

LIST OF RESOURCES

Bruce C. Hafen and Jonathan O. Hafen, ‘Abandoning Children to their Autonomy: The United Nations Convention on the Rights of the Child’ (1996) 37 Harv. Int’l. L.J. 449.

Bettina Cass, ‘The Limits of the Public/Private Dichotomy: A Comment on Coady & Coady’ in in Philip Alston, Stephen Parker and John Seymour (eds), Children, Rights And The Law (Oxford University Press, Oxford 1992)

Collins Concise Dictionary and Thesaurus (Harper Collins Publishers, Spain 2001).

Committee on the Rights of the Child, ‘General Measures of Implementation for the Convention on the Rights of the Child’ (3 October 2003) UN Doc CRC/GC/2003/5.

Conor Gearty, Can Human Rights Survive (Cambridge University Press, Cambridge 2006).

Cynthia Price Cohen, ‘The Developing Jurisprudence of the Rights of the Child’ (1993) 6 St. Thomas L. Rev. 1.

Edward T. Swaine, ‘Does Federalism Constrain the Treaty Power’ (2003) 103 Colum. L. Rev. 403.

Geraldine Van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff Publishers, The Hague 1998).

Henry J. Steiner and Philip Alston, International Human Rights in Context (2nd Edition, Oxford University Press, Oxford 2000).

H.L.A Hart, The Concept of Law (2nd Edition, Oxford University Press, Oxford 1994).

Human Rights Committee, ‘General Comment No.22: The Right to Freedom of Thought, Conscience and Religion (Art.18)’ (30 July 1993) UN Doc CCPR/C/21/Rev.1/Add.4.

Ian Brownlie, Principles of Public International Law (4th Edition, Clarendon Press, New York 1990).

Jonathan Todres, ‘Emerging Limitations on the Rights of the Child: The U.N Convention on the Rights of the Child and Its Early Case Law’ (1998) 30 Colum. Hum. Rts. L. Rev. 159.

Kamran Hashemi, ‘Religious Legal Traditions, Muslim States and the Convention on the Rights of the Child’ Human Rights Quarterly 29.1 (2007).

Katherine S. Williams, Criminology (4th Edition, Oxford University Press, Oxford 2001).

Lainie Rutkow and Joshua T. Lozman, ‘Suffer the Children?: A Call for United States Ratification of the United Nations Convention on the Rights of the Child’ (2006) 19 Harv. Hum. Rts. J. 161.

Malfrid Grude Flekkoy and Natalie Hevener Kaufman, The Participation Rights of the Child (Jessica Kingsley Publishers Ltd, London 1997).

Maria Bozena Celek, ‘International Response to Child Labor In the Developing World’ (2004) 11 Geo. J. on Poverty L. & Pol’y 87.

Maria Sophia Aguirre and Ann Wolfgram, ‘United Nations Policy And The Family: Redefining The Ties That Bind A Study Of History, Forces And Trends’ (2002) 16 BYU J. Pub. L 113.

Mark Strasser, ‘Domestic Relations, Missouri v Holland, and the New Federalism’ (2003) 12 Wm. & Mary Bill Rts. J. 179.

Michael D. A. Freeman, ‘Taking Children’s Rights More Seriously’ in Philip Alston, Stephen Parker and John Seymour (eds), Children, Rights And The Law (Oxford University Press, Oxford 1992).

Priscilla Alderson, Young Children’s Rights (Jessica Kingsley Publishers Ltd, London 2000).

Richard G. Wilkins, Adam Becker, Jeremy Harris, Donlu Thayer, ‘Why the United States Should Not Ratify the Convention on the Rights of the Child’ (2003) 22 St. Louis U. Pub. L. Rev. 411.

Robert Allen (ed), The New Penguin English Dictionary (Penguin Books, Finland 2000).

Susan Kilbourne, ‘The Convention on the Rights of the Child: Federalism Issues for the United States’ (1998) 5 Geo. J. on Fighting Poverty 327.

Susan Marks and Andrew Clapham, International Human Rights Lexicon (Oxford University Press, Oxford, 2005).

William Schabas. ‘Reservations to the Convention on the Rights of the Child’ Human Rights Quarterly 18.2 (1996).

TABLE OF LEGISLATION

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

Declaration of the Rights of the Child (adopted September 26 1924) League of Nations Official Journal Spec Supp 21, at 43.

Declaration of the Rights of the Child (adopted 20 November 1959) UNGA Res 1386 XIV.

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force January 3 1976) 993 UNTS 3 (ICESCR).

Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).

TABLE OF CASES

Ginsberg v New York, 390 U.S 629 (1968).

Missouri v Holland 252 U.S 416 (1920).

Parham v J.R., U.S 584 (1979).

Planned Parenthood v Danforth, 428 U.S 52 (1976).

Roe v Wade, 410 U.S 113 (1973).