Bulletin #56    United Nations Convention – Part 3                                   08/31/2006

 

NHELD does not believe in fear mongering.  NHELD believes in the distribution of facts so that individuals can formulate their own opinion.  Through this bulletin and the two which will follow, NHELD hopes to distribute facts about the United Nations’ Convention on the Rights of the Child.  NHELD also offers its opinion in this bulletin about the possible effects of United States’ ratification of that Convention.  We hope that readers will further investigate this issue and enlighten others, in turn. We broke this up into three parts because this would otherwise be a rather lengthy bulletin.  This first part dealt with definitions, the second part dealt with Supreme Court cases which addressed conflicts between treaties and federal and state laws, and this last part will present some analysis and concerns regarding the Convention of the Rights of the Child, as well as other treaties. The issue is complicated, has some historical background, and requires some time to read through and understand.  We hope that you will take the time because this is a very important issue, affecting our children, and our sovereignty.

 

Did You Know? The United States signed the Convention of the Rights of the Child, but has not yet ratified it.  If this Convention is ratified it may present some problems.

How does the current treaty, the United Nations Convention…., affect federal and state law?

We strongly suggest that you read all of the provisions of the Convention on the Child in its entirety. To do so, you can go to the following: http://www2.ohchr.org/english/law/crc.htm

To review every provision in that document would be too cumbersome.  Therefore, we have chosen a few provisions as examples. Again, keep in mind when the treaty talks about the “State”, it means the “nation”, or in our case, the federal government. Our opinion or questions will be posed immediately following each provision:

“The States Parties to the present Convention …Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations… Have agreed as follows:

     Comment:  A thorough review of the Charter of the United Nations is warranted for a complete   understanding of the “spirit and ideals proclaimed”.  A signatory of this treaty would be compelled to bring up the child in accordance with these ideals.  Federal laws could be adopted to implement this provision.

Article 3, section 1: …In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration…

     Comment:  The treaty does not specify according to whom the “best interests” of the child will be determined.  This could be problematical if the “best interests” are determined by a committee, for example, made up of members of countries antithetical to the culture and values of this country.

Article 4…Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention…

      Comment:  Again, this is a mandatory directive that our legislation must implement the rights recognized by the Convention.  We, the people, would have no legislative or judicial recourse to the imposition of such laws.  The only argument that could be made is that the treaty, and thus, those laws do not comport with our Constitution.

Article 9, Section 1…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…

      Comment:  The treaty does not specify who the “competent authorities” are.  Are they “authorities” in  another country? Who determines their competency?  What recourse does anyone have if they are not competent?  What recourse does anyone have to appeal such a decision?

Article 9, Section 2… all interested parties shall be given an opportunity to participate in the proceedings and make their views known…

      Comment:  How are the parties to “make their views known”?  It is not specified.  To whom are the parties to make their views known?  It is not specified.  Is the opportunity to make their views known after the decision is made, before it is made, or during the proceeding in which it is made?  It is not specified. What, if anything, is the decision maker required to do after hearing the “views” of the parties?  It is not specified. What recourse is there if the decision maker refuses to hear the “views” of the parties?  It is not specified.

Article 13, Section 1… The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice….

      Comment:  There is no provision in this section for parental regulation of the child’s “freedom of expression” or “freedom to seek, receive and impart information and ideas of all kinds”.  Is the parent powerless to filter information that the parent deems inappropriate for the child?  Is the parent subject to arrest or other sanctions such as loss of custody of the child if the parent attempts to regulate the appropriateness of the information received or imparted by the child?  It is not specified.

Article 14, Section 3…Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others….

      Comment:  Can the United Nations or a committee composed of members of nations antithetical to a member of this country’s religious beliefs limit the religious freedom of the child in the name of maintaining “public order” or some other possible excuse?  Is this provision contrary to the Constitution’s First Amendment provision for freedom of religion?  Who is the final arbiter to decide? Are the limitations to be prescribed by international law, United Nations law, or United States law?  It is not specified.

Article 17… Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;

(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;

(c) Encourage the production and dissemination of children's books

      Comment:  What if parents do not want to have their children utilize information and material from international sources, but want to utilize information and material primarily from their own country’s sources?  What, if any, sanctions do parents face?  Do they face imprisonment or loss of custody of the child simply because their opinion differs from the United Nations?  It is not specified.

Article 18, Section 1…Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

 

      Comment:  Again, the question is: the best interests according to whom?  In addition, who oversees whether the parents are undertaking their “responsibility”?  What, if any, are the sanctions for parents who disagree with “authorities” as to what the “best interests of the child” are? What recourse do the parents have to appeal any adverse decisions?  It is not specified.

Article 18, Section 2… For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

      Comment:  What is the definition of “appropriate assistance”?  Who determines what is “appropriate”?  What recourse do parents have if they disagree about the “appropriateness”? What is the definition of “child-rearing responsibilities”?  Who determines what that definition is?  Do parents have any say in determining what that definition is or what their own “child rearing responsibilities” are?  What sanctions do parents face for failing to undertake their “child rearing responsibilities”, whether intentionally or unintentionally?  Does it make any difference for the purposes of sanctions that the parents did not intend to disregard their “child-rearing responsibilities”?  What if the parents were unaware that they had particular “child rearing responsibilities” in accordance with treaty provisions?  Do they get a second chance or do they lose custody of their children or face some other sanction for inadvertent mistakes? Are parents ever entitled to legal assistance in any part of the treaty when accused of failing to uphold any of its provisions? Are parents entitled to due process of law or any rights guaranteed under our Constitution?  It is not specified.

 Article 19, Section 1… States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

 

      Comment:  What is the definition of “all appropriate legislative, administrative, social and educational measures?  Who defines it?  Do parents have any say in defining it?  What rights do parents have under the legislative, administrative, social and educational measures?  Are parents afforded due process and other rights in accordance with our Constitution?  Are the children afforded due process and other rights in accordance with our Constitution? What are the sanctions?  Is loss of custody a sanction?  If so, is it a temporary loss of custody or a permanent loss of custody?  Is there any provision to appeal any decision?  It is not specified.

Article 19, Section 2…Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

      Comment:  What are the “social programmes”?  Do they include mental health screenings?  Do they include forced medication? Who deems these “programmes” as “necessary”?  Are the parents afforded the full protection of their rights under our Constitution before these “social programmes” are “established”?  What are the “other forms of prevention”?  Who determines what those forms are? How are children “identified”, “reported”, “referred”, “investigated”, and “treated” and by whom? Do parents have any rights regarding such identification, reporting, referral, investigation, and treatment?  Are those rights afforded by our Constitution or by United Nations or foreign law? What is “maltreatment” and who defines it?  What recourse do parents have if they disagree with any of these “programmes”? What rights to parents have to appeal any decisions about these “programmes”?  It is not specified.

Article 20, Section 3… Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children.

       Comment:  Do the parents have any say in the “placement” of the child?  What recourse to parents have if they disagree with the “placement”?  What is the procedure used to determine whether “placement” is necessary?  Is it done in a court of law with all rights afforded to the parents under our Constitution, or does a United Nations bureaucrat get to decide?  What is the appellate process, if any?

Article 28, Section 1… Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a)   Make primary education compulsory and available free to all…

Comment:  This, of course, is one of the most controversial topics for our purposes.  What is the “right of the child to education”?  What kind of “education” does the treaty mean?  It would appear that the treaty refers to government education.  The treaty specifically states that the “parties” “shall” “make primary education compulsory”.  What is “primary education”, how is it provided, by whom is it provided, and how is its “compulsory” nature implemented?  The treaty does not specify. Primary education could mean many things.  It could mean what we think of as K-12 education.  Then, again, it could mean education in “primary” issues, subjects, causes, etc. Who deems it compulsory?  Is it compulsory in accordance with the United Nations?  Is it compulsory according to national law?  Is it compulsory according to state law?  It is not specified.  Because primary education is “compulsory”, does that mean that parents cannot instruct their own children at home?  It is not specified. 

(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates…

Comment:  What “measures” are required to be “taken”?  What constitutes “encouragement” as opposed to “coercion”?  What if parents reject the “encouragement” in favor of instruction of the children at home?  Will the parents be subject to sanctions?  If so, what are the sanctions? Who is in charge of the “encouragement” and who is in charge of enforcing such “encouragement”?  What is the definition of a “drop-out”? Is a “drop-out” someone who homeschools?  How are the “drop-out” rates to be “reduced”?  Are they to be “reduced” by compulsion? It is not specified.

Article 28, Section 3… Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods.

      Comment:  What is “international cooperation in matters relating to education”?  Does that mean that another country may interfere with a parent’s right to homeschool in this country?  May the two countries “cooperate” to sanction a parent for homeschooling?  It is not specified.  Who defines “encouragement”?  Again, does “encouragement” include “coercion”? Does the “elimination of illiteracy” include the “elimination of illiteracy” that currently exists in our public schools?  How will “parties” “contribute” to this?  It is not specified.

Article 29, Section 1… States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

Comment:  This may be most problematical.  By this treaty, “parties” agree that the “education” of the child shall be directed “for the principles enshrined in the Charter of the United Nations.”  Many may agree with those “principles”, but what if parents don’t agree with them?  What if parents want to direct the education of their children to the principles of the country of their choice?  Who will enforce this provision?  How will it be enforced?  What rights, if any, to parents have to disagree with the enforcement?  Do parents face sanctions for directing the education of their children in accordance with the principles of their choice?  If so, what are they? Do parents have due process and other rights under our Constitution?  What is the appellate process?  It is not specified.

Article 29, Section 2…No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

      Comment:  So, in other words, the “liberty of individuals and bodies to establish and direct educational institutions” is not supposed to be interfered with, but only if those individuals and bodies are “observing” the “principle set forth in paragraph 1”, the principle that the education is to be directed “for the principles enshrined in the Charter of the United Nations.”  It would appear clear that if those individuals and bodies are not establishing and directing educational institutions for the principles” enshrined in the Charter of the United Nations”, they could be “interfered with”, although it is not specified how that “interference” would occur. Also, it appears that even that limited restraint on interference does not apply to individuals and bodies who establish and direct the education of their own children, as opposed to “institutions”.   How much interference and of what kind would parents be subject to for directing the education of their own children when not observing the principles “enshrined in the Charter of the United Nations”?  It is not specified.

Article 32, Section 1…1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development….

Article 32, Section 2… a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.

     Comment:  Would the United Nations provisions supplant currently existing state laws regarding the kind of work and the hours of work in which children being homeschooled could be employed?  Who is in charge of enforcement?  Who decides what the penalties will be?  What recourse do parents have if they disagree?  It is not specified.

Article 40, Section 2…(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed…

     Comment:  Does this mean that in order for a child to be held accountable for breaking a law, the act of the child must have been prohibited by national or international law at the time it was committed?  What if the child breaks a state law?  Would the child not be responsible?  Would the parents be responsible?  It does not specify.

Article 41… Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:

(a) The law of a State party; or

(b) International law in force for that State.

     Comment:  Again, keep in mind that when the United Nations talks about the “State”, it is talking about a nation, federal government.  In other words, this provision says that this treaty does not affect any provisions that are more conducive to the rights of the child if those provisions are contained in a federal law or in an international law. One could reasonably infer, then, that the treaty does affect provisions that are not more conducive to the rights of the child.

Article 43… there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.

Article 43, Section 8…The Committee shall establish its own rules of procedure.

      Comment:  What are the rules of procedure?  By what process will the rules of procedure be adopted?  Will there be any public input into the rules?  Will there be any ability for the rules to be amended? It is not specified.

Article 44, Section 1…. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights…

      Comment:  Under this provision, nations will “report” to the United Nations on the “measures” they have adopted to implement this treaty and on the “progress” they have made in the “enjoyment” of those rights.  For what purpose?  Does the nation have to adopt specific “measures” or else face sanctions? Does the nation have to achieve some specific “progress” or else face sanctions?  What are the sanctions? Who imposes the sanctions?  Do countries that have adopted fewer “measures” and made less “progress” get to determine the “progress” of another nation and to impose sanctions for not achieving such “progress”?  It is not specified.

Article 44, Section 4… The Committee may request from States Parties further information relevant to the implementation of the Convention….

      Comment:  What kind of “further information” might be required?  To whom is it given?  For what  purposes is it given?  It is not specified.

Article 44, Section 6…States Parties shall make their reports widely available to the public in their own countries…

      Comment:  What information will be contained in the reports?  Will personal information about families be contained in them?  Is there any provision to delete personal information from those reports?  Is there any provision for families to refuse consent to release personal information to the public in those reports?  It is not specified.

Article 51, Section 2…2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

      Comment:  This provision means that even if a country has “reservations” about a particular part of the treaty, although it can present those “reservations” to the United Nations, a “reservation” that is not compatible with the “object and purpose” of the treaty “shall not be permitted.”  It would appear that a party can only present “reservations” that abide by treaty provisions. Does this mean that all parties are required to comply no matter what?  It is not specified.

NHELD opposes this treaty as it is written.  It leaves too many questions unanswered, it invites more federal regulation, and that federal regulation may supersede parental rights under state law.

 

Under the United Nations Convention on the Rights of the Child, each nation may adopt national laws implementing its provisions. How those national or federal laws affect parents will become more apparent in time.  Already, there is controversy in the European Union regarding this treaty.  It has affected the rights of parents to homeschool in Belgium.  Belgium has a law that requires homeschoolers to agree to the provisions of the treaty in order to homeschool. One family refused and is suffering the consequences as can be seen in these articles:  http://www.brusselsjournal.com/node/1121

and http://worldnetdaily.com/news/article.asp?ARTICLE_ID=51484

 

Will Congress adopt laws to implement the treaty that will affect our right to homeschool in this country?  That remains to be seen.

 

The time may come when a parent disagrees with a provision in this treaty, and the issue comes before a court. How will the court decide?  Will the court decide the treaty’s provision does not comport with the Constitution and, therefore, the parent will prevail under state law?  Maybe.  Maybe not. That also remains to be seen. 

 

At the moment, just understand that while the President has entered into this treaty, the Senate has not yet ratified it. 

 

NHELD has a lot of questions about this treaty; you may have a lot of questions about it as well. More importantly, the Senate should have a lot of questions about this treaty.  Perhaps the Senate does.  Perhaps that is why the Senate has not yet ratified it.  Whatever your opinion is about this treaty, your Senators need to hear from you ! 

 

It is extremely important for every American to become informed and to remain informed.  It is also extremely important for each of us, after formulating our opinion about issues such as this, to engage in a dialogue with our representatives in government.  In this case, it is important to engage in such dialogue with our Senators and their aides.  It is likely that you will have more access to their aides than to the Senators.  That doesn’t necessarily mean that the Senators will not get your message.  The aides have the Senators’ ears in more ways than one.  They not only could pass on your written message to the Senator, but also they could inform the Senator when action on this or another issue comes up that there are constituents in the Senator’s district that feel strongly about the issue such that he should weigh the facts heavily before voting.

 

One website that you can use to contact your Congressional Representatives is at http://www.contactingthecongress.org/  Senators can be contacted through

http://www.senate.gov/general/contact_information/senators_cfm.cfm

 

If not for your sake, for your children’s sake and for their children’s sake, we encourage everyone to take the time to become informed and to ask questions of your Senators, to make your opinion known, and to make your voice count.

 

Once a treaty or a law is adopted, if you decide you disagree with it, it is much more difficult to get it repealed.

 

Unfortunately, this treaty is not the only “law” that the federal government could enact that may affect your rights as parents or that may affect your rights under state law.

 

There are other federal initiatives that may affect your rights under state law that are currently underway. We recommend that you take a look at all of them and decide for yourself what you agree with and what, if anything, you want to do about them. 

Some of them are the following: 

 

Charter of the Organization of American States

http://www1.umn.edu/humanrts/iachr/oascharter.html

 

NAFTA

http://www.mac.doc.gov/nafta/naftatext.html

 

CAFTA

http://www.export.gov/fta/complete/CAFTA/index.asp?dName=CAFTA

 

 

NHELD suggests that all treaties, agreements, and conventions are extremely troublesome when they create new “regional” or “international” government structures that eviscerate the United States Constitution.  In addition to being concerned about the U.N. Convention on the Rights of the Child, NHELD suggests reading about the Security and Prosperity Partnership of North America that was signed by President George Bush in 2005. Please keep in mind and refer to the United Nations’ definitions of “treaty”, “agreement”, and “convention” while reading about any international “agreement”.  Of particular concern in this international “agreement” are references to “regulatory cooperation”, “ensure compatibility of regulations”, “expanding partnerships in higher education, science and technology”.  While the ideas may be laudable, the practical and legal effect of “regulatory cooperation” regarding a “treaty” or international “agreement” may be the eradication of Constitutional protections and state laws already in existence.

 

You can read about the Security and Prosperity Partnership of North America at the government’s websites:

 

http://www.spp.gov

http://www.spp.gov/factsheet.asp

http://www.whitehouse.gov/news/releases/2005/03/20050323-2.html

http://www.whitehouse.gov/news/releases/2005/03/20050323-3.html

http://www.whitehouse.gov/news/releases/2005/06/20050627-2.html

http://www.whitehouse.gov/news/releases/2005/03/20050323-1.html

http://www.whitehouse.gov/news/releases/2006/03/20060331-1.html

http://www.whitehouse.gov/news/releases/2006/03/20060331.html

http://www.spp.gov/links.asp

http://ostpxweb.dot.gov/S-3/sppcover.htm

http://www.pi.energy.gov/naewg.html

 

The most important thing is to become informed, and to remain informed.  Then let your representatives in government at the local, state, and federal levels know your opinion.  Don’t let them adopt new laws without making them understand the impact they will have on your lives and the lives of your children.

 

 

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense.www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net