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United Nations Convention on the Rights of Children

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Convention on the Rights of the Child
Opened for signature 20 November 1989 at -
Entered into force September 2 1990
Conditions for entry into force 20 ratifications or accessions (Article 49)
Parties 193 (only 2 non-parties: USA and Somalia)

The United Nations Convention on the Rights of the Child, often referred to as "CRC", is an international convention setting out the civil, political, economic, social and cultural rights of children. It is monitored by the United Nations' Committee on the Rights of the Child which is composed of members from countries around the world.

Governments of countries that have ratified the "CRC" are required to report to, and appear before, the United Nations Committee on the Rights of the Child periodically to be examined on their progress with regards to the advancement of the implementation of the "CRC" and the status of child rights in their country. Their reports and the committee's written views and concerns are available on the committee's website.

Most member nation states (countries) of the United Nations have ratified it, either partly or completely. The United Nations General Assembly agreed to adopt the Convention into international law on November 20 1989; it came into force on September 2 1990, after it was ratified by the required number of nations. The Convention generally defines a child as any person under the age of 18, unless an earlier age of majority is recognized by a country's law.

Contents[]

The Convention acknowledges that every child has certain basic rights, including the right to life, his or her own name and identity, to be raised by his or her parents within a family or cultural grouping and have a relationship with both parents, even if they are separated.

Article 5 of the CRC states:

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to 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.[1]

Law professor David Smolin has observed that "[t]he paradox of this section is that its recognition of parental responsibilities and rights is couched in language which seems to reduce the parental role to that of giving advice. This implication can be found in the language which characterizes parental responsibility and rights as providing “appropriate direction and guidance” to the child’s exercise of rights. To some, this language appears to define parental rights as that of simply advising and facilitating the exercise of decisional autonomy by children." (emphasis added) [2]

The Convention obliges states to allow parents to exercise their parental responsibilities. The Convention also acknowledges that children have the right to express their opinions and to have those opinions heard and acted upon when appropriate, to be protected from abuse or exploitation, to have their privacy protected and requires that their lives not be subject to excessive interference.

The Convention also obliges signatory states to provide separate legal representation for a child in any judicial dispute concerning their care and asks that the child's viewpoint be heard in such cases. The Convention forbids capital punishment for children.

The Convention is child-centric and deals with the child-specific needs and rights. It requires that states act in the best interests of the child. This approach is different from the common law approach found in many countries that had previously treated children and wives as possessions or chattels, ownership of which was often argued over in family disputes. In many jurisdictions, properly implementing the Convention requires an overhaul of child custody and guardianship laws, or, at the very least, a creative approach within the existing laws.

The Convention also has two Optional Protocols, adopted by the General Assembly in May 2000 and applicable to those states that have signed and ratified them: The Optional protocol on the involvement of children in armed conflict and the Optional protocol on the sale of children, child prostitution and child pornography.

State Parties and Signatories[]

According to UNICEF, 193 states are party to the Convention [3], almost all the members of the United Nations.

United States status[]

The United States and Somalia have signed the Convention, but never completed their ratification processes.[4] On February 16, 1995, Madeleine Albright, at the time the U.S. Ambassador to the United Nations, signed the Convention. Though generally supportive of the Convention, President Bill Clinton did not submit it to the Senate for its advice and consent.

The United States has had particular difficulties in ratifying the "CRC" in part due to the fact that it conflicts with U.S. law and because of opposition by some political and religious conservatives to the treaty.[5] More specifically, certain provisions of the CRC, such as the prohibition on sentencing of juveniles to life imprisonment with no opportunity for parole (Art. 37), are contrary to the laws in many U.S. states. (see below for a more complete discussion)

The administration of president George W. Bush has explicitly stated its opposition to the treaty:

"The Convention on the Rights of the Child may be a positive tool for promoting child welfare for those countries that have adopted it. But we believe the text goes too far when it asserts entitlements based on economic, social and cultural rights. ... The human rights-based approach ... poses significant problems as used in this text." [6]

United States[]

Objections within the U.S. to the CRC have come from numerous groups and for different reasons, not the least of which are the conflicts between U.S. law and the CRC. The most prominent dissenting group, however, is the body of people who are both religiously and politically conservative, though not simply religiously conservative.[7]

Law professor David Smolin concludes that the objections from the religious/political conservatives stems from the view that the CRC as part of the U.N. is an elitist instution and this group distrusts elitist institutions because of the U.S. Supreme Court's handling of domestic and family issues. Smolin concludes that religious/political conservatives generally do not trust elitist institutions to properly handle sensitive decisions regarding family issues and believe the CRC is merely another delegation of such authority to an elitist institution. [8] He concludes that with appropriate Reservations, Understandings and Declarations by the U.S. the CRC could enable society to seek the best interests of children. He concludes below that:

For a number of decades, religious and cultural conflicts over the family have been frequently litigated as constitutional issues, and the resulting decisions have left religious conservatives with a deep distrust of concentrating decision-making authority over family policy issues in small, elitist institutions like the Supreme Court. Thus, the natural responses of social conservatives is to perceive the CRC as yet another delegation of family policy into a set of culturally-distant, hostile elites: in this instance, some combination of the Committee on the Rights of the Child and once again the U.S. Supreme Court. My argument is that the CRC, rightly understood and with the right set of RUDs (Reservations, Understandings and Declarations), would not unduly empower either the judiciary or international bodies such as the Committee on the CRC. Rather, the CRC, rightly understood, should empower the entire society, including families and parents, to seek the best interests of children. [9]

The Heritage Foundation sees the conflict to be more profound: "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."[10] Those opposing this treaty are concerned about "sovereign jurisdiction over domes­tic policymaking and preserving the freedom of American civil society".."[11]

Evangelical/Conservative religious support[]

World Vision, which is a large evangelical relief NGO, has voiced support for the CRC. Smolin states that this support is probably more typical of worldwide evangelical Christian opinion than the above discussed conservative Christian dissent in the United States.[12] This is because, globally, Christians who seek to help the "vulnerable, poor, needy, and oppressed...apparently find more inspiration than fear in the words of the CRC."[13]

Conflicts with U.S. law[]

Article 29 - "Article 29 limits the right of parents and others to educate children in private school by requiring that all such schools support both the charter and principles of the United Nations and a list of specific values and ideals. By contrast, 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."[14]

Capital Punishment - The convention forbids the execution of minors; this conflicts with several U.S. state laws. However, the Supreme Court decided, in Roper v. Simmons that the Convention defines a broad international consensus on the definition of "cruel and unusual punishment" on this matter and that therefore the execution of minors is a violation of the Eighth Amendment.

Corporal Punishment

Positive Economic Rights - The U.S. generally does not ratify human rights treaties if the treaties contain positive economic rights because the U.S. Constitution has been interpreted to make citizens free from government regulations. [15] Smolin believes the U.S. can address this by declaring the CRC to be non-self-executing, which would place the implementation provisions in the hands of the democratically accountable legislative and executive branches rather than the judicial branch. [16]

Canadian status[]

Canada has ratified the "CRC" but has not fully implemented the Convention in Canadian domestic laws. The Canadian Children's Rights Council has a full section with related parliamentary references on the implementation of the "CRC" in Canada.[17]

Youth criminal laws in Canada underwent major changes resulting in the Youth Criminal Justice Act (YCJA) which went into effect on April 1, 2003. [18]

In 1989, the Canadian House of Commons voted unanimously to pass a non-binding resolution to end child poverty by the year 2000. However, the child poverty rate did not change between 1989 and 2000; 16% of Canadian children still live in poverty. [19]

Conflicts with the Universal Declaration of Human Rights[]

The CRC contains apparent conflicts with the UN's Universal Declaration of Human Rights (UDHR), passed in 1948.

For example, constraints contained in Article 29 appear to conflict with the clear language of Article 26 in the UDHR: "Parents have a prior right to choose the kind of education that shall be given to their children."

Parental and Children's Rights[]

The CRC has been linked to the idea that in the case of divorce or separation of parents, sole custody should only occur when it is in the "best interests of the child".[20]

References[]

  1. ↑ Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3
  2. ↑ David M. Smolin, Overcoming Religious Objections to the Convention on the Rights of the Child, 81, 90 Emory International Law Review, Vol. 20 (2006).
  3. ↑ CRC ratification [1]
  4. ↑ Smolin, Overcoming Religious Objections. [2] [3] [4]
  5. ↑ Smolin, Overcoming Religious Objections [5] [6] [7]
  6. ↑ Wnd.com News Article [8]
  7. ↑ Smolin, Overcoming Religious Objections [9] [10] [11]
  8. ↑ Smolin, Overcoming Religious Objections [12] [13] [14]
  9. ↑ Smolin, Overcoming Religious Objections, 110 at [15]
  10. ↑ http://www.heritage.org/Research/WorldwideFreedom/bg1965.cfm
  11. ↑ http://www.heritage.org/Research/WorldwideFreedom/bg1965.cfm
  12. ↑ Smolin, Overcoming Religious Objections, 109 at [16]
  13. ↑ Smolin, Overcoming Religious Objections, 109 at [17]
  14. ↑ Smolin, Overcoming Religious Objections, Article 29, 104 at [18] - See Susan H. Bitensky, Educating the Child for a Productive Life, in CHILDREN’S RIGHTS IN AMERICA 181 (Cynthia Price Cohen & Howard A. Davidson eds., 1990) (referring to “fundamentalist” curriculum used in some private religious schools which evidences hostility toward the United Nations). Relevant cases include Runyon v. McCrary, 427 U.S. 160 (1976); Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
  15. ↑ Smolin, Overcoming Religious Objections, Article 29, 106 at [19] - See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 998 (1989). As one of the classic cases on the “negative constitution,” Deshaney is highly relevant to the question of children’s rights, although it falls in the area of government protection from abuse, rather than economic assistance.
  16. ↑ Smolin, Overcoming Religious Objections, Article 29, 106 at [20]
  17. ↑ Canadian Children's Rights Council [21]
  18. ↑ Canadian Children's Rights Council [22]
  19. ↑ Canadian Children's Rights Council [23]
  20. ↑ Birks, Stuart INCLUSION OR EXCLUSION II:WHY THE FAMILY COURT PROTESTS?". Centre for Public Policy Evaluation College of Business, Massey University. URL accessed on 2007-04-13.

See also[]

External links[]

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