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UN Treaty on Child’s Rights Legally Binding, and Absurd
by Jim Bentley Friday, May 01, 2009
Child-rights advocates seeking to convince the U.S. Senate and the American public to ratify the United Nations Convention on the Rights of the Child (CRC) are pursuing a curious line of reasoning. They say we can ratify the treaty, which preempts parents’ fundamental rights to direct the upbringing and education of their children, without incurring binding legal obligations. They argue that American legislators will choose how much, if any, of the treaty to implement.
Jonathan Todres, a professor at Georgia State, told the Associated Press that American parental rights would be safe because UN treaties contain “no enforcement mechanisms or penalties.” Meg Gardinier, who chairs a coalition of groups supporting the U.S. ratification of the treaty, told the AP, “No UN treaty will ever usurp the national sovereignty of this country.”
This smacks of the kind of American diplomacy the left demonizes whenever conservatives suggest that America “can go its own way.” Ratify the treaty, they say. It’s not legally binding. We can choose what to obey and what not to.
This argument is not only patently hypocritical, it is legally wrong.
The most important principle of international law is: pacta sunt servanda (agreements must be kept). In other words, keep your promises.
Make no mistake, whenever the United States ratifies a treaty it enters into a binding legal obligation to comply with its terms. Arguing that a treaty is a mere philosophical statement of intent with no binding legal consequences is blatant error. Besides, what message does this send to the international community the Obama administration seems desperate to please?
Arguing that America can enter into treaties and then comply on piecemeal basis undermines our international reputation. Worse, it suggests that America cannot be trusted to keep its promises.
It is not difficult to discern the legal impact of a ratified treaty on our domestic law. It’s spelled out plainly in the text of the U.S. Constitution. Article VI states that, along with the U.S. Constitution and federal law, ratified treaties “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Treaties trump state law.
The CRC is a comprehensive treaty covering economic, social, political, civil, and cultural rights of children. No area of our law regarding children lies outside of its scope. And virtually all American law on children comes from the laws of our 50 states. Yet our Constitution says treaties override state laws.
How would this work in practice?
The law in every American state allows parents to administer reasonable spankings to discipline their children. The UN’s official body on children’s rights has repeatedly ruled that any parental spanking violates the treaty’s requirements. The CRC will trump state laws permitting spanking.
Many school districts allow parents to allow their children to “opt out” from certain controversial courses such as sex education. The UN body holds that such parental involvement violates the treaty. The CRC will trump all state “opt out” laws.
So when Professor Todres says that the UN has no enforcement mechanism, he is telling a half-truth. The UN treaty establishes the law; American courts and child welfare agencies can, will, and must enforce the UN standards by virtue of Article VI of our Constitution.
One federal judge in New York has already held that the CRC is binding on the United States, by deeming a New York “state” policy on child abuse investigations to be in violation of the treaty’s guarantees.
An Ohio state judge bizarrely assumed that the Senate had already ratified the treaty and ordered parents to stop smoking because it harmed children’s health. While badly mistaken about the status of the CRC, his decision foreshadows what to expect if the Senate ratifies this treaty.
Under this treaty, every decision made about children —whether by government or parents— is subject to governmental review. Armed with the CRC, any social worker can second-guess any parent based on an opinion that the parents’ choice was not in the “best interest” of the child. Under this subjective standard, no family is safe from governmental intrusion.
The scope of this treaty reaches to the absurd. The UN Committee on the Rights of the Child held that both Indonesia and Egypt violated the CRC because they spent more on their military than on programs for children.
Thankfully, the treaty’s mandates on government spending, unlike the ban on spanking -- which would be immediately enforceable in American courts—would certainly be viewed by our current Supreme Court as matters left to the discretion of Congress. But given the exalted views of international law held by key Obama nominees for the Justice Department, even something this radical may one day become “judicially enforceable.”
The ultimate question is: Who should make our public policy on parents and children? Our elected state legislators? Or, an international treaty regime headed by a committee of 18 international “experts” sitting in Geneva.
Unless we fully intend to comply with UN treaty’s radical dictates, our Senate must reject the Convention on the Rights of the Child.
Dr. Michael Farris is Chancellor of Patrick Henry College, President of ParentalRights.org, and holds advanced Postgraduate Certificate in Public International Law.
National Coalition Director
Parentalrights.org is a 501c4 non-profit organization existing solely for the purpose of passing a parental rights amendment to the US Constitution.
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