Now we come to the discussion of the UN Convention on the Rights of the Child itself. Several times I have mentioned it in the prior postings. Now I will spend some time discussing this treaty after having provided you with a Biblical foundation for parental duties and hopefully a better understanding of the worldview which is threatening this Biblical perspective.
The first two philosophies which I discussed in recent posts find their tangible fulfillment regarding children in the United Nations Convention on the Rights of the Child. This is a UN treaty, completed in 1989 and signed by 192 of 193 countries, that binds ratifying countries as any other contract does so in a business situation. Our country’s constitution binds us in even stronger terms to this type of agreement than in those other 192 countries. In Article 6 of the US Constitution, any treaty ratified by the US Senate becomes quote “Supreme Law of the Land”, practically equal to the Constitution. This means that it will override state and local laws regarding the family. The jurisdiction of the federal government will then extend into your private family life.
It basically becomes constitutional law unless the constitution explicitly exempts a particular law from treaties (according to V.C of T, the Gold standard for treaties). Some of you, having studied the constitution, may object here on a variety of grounds. Some will claim that the 10th amendment protects us. A Supreme Court case in the 1950’s called Reid v. Covert clearly ruled that while a treaty cannot override an explicit constitutional law, it can become the final legal word if the Constitution does not speak to that particular area of law. Some will say that the founders never intended federal jurisdiction in this area of life and others will say that Article 6 treaty powers only meant for international issues. However, regardless of which interpretation is correct, the current legal environment has chosen to interpret Article 6 as a way to implement law through treaties rather than through a normal legislative process. To them, it becomes “supreme law of the land” regardless of what legal opinionists say in disagreement.
Your country's constitution separates religion and state so any Biblical arguments have no constitutional locus bar that rights are endowed by the Creator.
ReplyDelete"practically equal" is loose terminology. Either it is equal or superior - other than that you have no worries?
The USA signed the UN Charter, in its explicit terms, the superior item of international treaty law, its effects can be binding even on non-signatory states.
Let us look at the US paying its dues - for quite some years the UN was in arrears, yet its duty was to pay. That was remedied last year.
It is in breach, along with every other nation, of Articles 43, 45 and 47, concerning the establishment of armed and airforce contingents for peacekeeping and a Military Staff Committee. I see no challenge in your courts, this has been so since 1945.
part 2
ReplyDeleteThe USA has ratified 2 of the Protocols to the Convention on the use of children in armed forces and prostitution and exploitation. No argument advanced there against such a process.
I also have some problem with the use of the term "parental rights". This has been advanced in response to the idea of there being children's rights enshrined in a treaty and signed and ratified by the US? That Convention is explicit in what these children's rights are, they are detailed and set down.
You use 'parental rights' in the plural, and make emotional appeals as to their defence. But surely you need to state what you believe these to BE? What ARE parental rights, in the plural?
Unless you specify, you have no case for a Constitutional amendment. If you mean, for example that:
"In the raising and disposition of their children, parents have total authority in all matters regarding the upbringing, welfare and treatment of those children" then you must be explicit. That I would call the 'owned chattel' approach, arguable I suppose, emotionally-laden, maybe has religious sanction (and by no means just Christianity or even Islam).
Does your Constitution support such a claim? Discuss. Does the Bible? Likewise.
So far, without such a claim being put to the people of the US, I think you will find that neither State nor Federal law supports a notion that kids are totally subservient to parents and have no rights under the Constitution which in those terms, of rights, I gather is superior to state constitutions?
I also think you need to explain to your audience the import of the following Articles of the Convention:
ReplyDeleteArticle 5
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.
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
Article 9
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. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or
one where the parents are living separately and a decision must be made as to the child's place of residence.
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the
upbringing and development of the child. 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.
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.
Article 27
1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.
Read this story link from the UK Guardian newspaper HERE about the case of an 11 year old boy accused of murder and likely to be tried as an adult in an adult court. This many of us believe to be abusive, the CRC would help guard children. But look at those specific arguments and tell me how they weaken parental rights against federal and state powers. Surely in many cases parents could use such clear commitment in court to defend their rights and responsibilities. It is mainly governments who find themselves at odds with the CRC not parents - simple reason, the CRC is signed by governments not parents.
I do believe that you need to be more open about your motives which are about Articles 12, 13 and 14 which are about the child's rights to freedom of expression, to access information and religious belief. Even here, it is disingenuous of you to claim that e.g. kids would have the right to do as the pleased or the state to interfere with the basic rights and roles of parents as set out in the Articles I have cited.
It seems axiomatic to me that any attorney worth his pay would use those 'parental clauses' in the CRC to oppose over-weaning state interference. The state, as now, would have to prove a case based on e.g. evidence of abuse, to override that.
Like all good and balanced measures, the CRC is a double-edged sword.
Dear "Come Out to Play",
ReplyDeleteResponding below (comments after "----")
My part 1
Your country's constitution separates religion and state so any Biblical arguments have no constitutional locus bar that rights are endowed by the Creator.
---- First, I think you are misunderstanding my perspective and audience. My focus on a Biblical understanding of the Constitution is directed at Christians and therefore encouraging them to use a Biblically based worldview to evaluate the Constitution, domestic law, international law, and their behavior in response to each of these. Ultimately, God’s Word stands above the Constitution or any other law of man as the final standard for a Christian’s actions. I am encouraging Christians to respond Biblically to this issue. It makes no difference if the Constitution recognizes it or not.
----Second, have you read the preamble to the Declaration of Independence lately? While I grant that the Constitution does not contain this wording, I wonder if the authors thought it unnecessary to repeat what was so well written into the Declaration of Independence.
--- Finally, your theory of separation of religion and state are subject to the widespread deception of our day. This phrase is not found in our Constitution. The Bill of Rights does say “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Wasn’t it Thomas Jefferson who used this phrase, “separation of church and state” in a letter to the Danbury Baptists. A personal letter, even from Jefferson, hardly qualifies for a ratified component of the Supreme Law of the Land.
Back to an earlier point in this paragraph. If the UN CRC prohibits the free exercise of religion that includes the education of children along that religion’s lines, then it contradicts the Bill of Rights. I could go on, but I believe my points clearly state my case.
"practically equal" is loose terminology. Either it is equal or superior - other than that you have no worries?
--- Since you want to be picky on the wording, permit me to expound further on my proper use of the word “practically” by defining my terms. Depending on which legal expert you consult, some place treaties (as ratified by the protocol of Article 6 of our Constitution) on par with Congressional law and others place treaties above the law, only subservient to the Constitution. Others would say that treaties can alter Constitutional provisions. Reid v. Covert in the 1950’s said that treaties override implicit Constitutional rights. This means, that unless the right is explicitly stated in the Constitution, the given treaty can take that right away. Parental rights are currently an unwritten, or implied right, that could be lost through the treaty process. The majority opinion of those in power is that “supreme law of the Land”, as stated below in Article 6 of our Constitution, means that ratified treaties are equal to the Constitution. Others make a reasonable case that this phraseology refers to their desire to uphold treaties made prior to the Constitution’s acceptance (i.e. 1776-1789). Regardless of opinions, “practically” speaking, treaties are “practically” at least equal to the constitution.
Portion of Article 6 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, 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.”
continued
My Part 2
ReplyDeleteThe USA signed the UN Charter, in its explicit terms, the superior item of international treaty law, its effects can be binding even on non-signatory states.
--- If we are bound to follow the letter of the law without ratification, why not just wait for others to ratify and avoid the trouble of a Senate vote? No, we are a sovereign nation, free to enter into treaties or not to enter into treaties. You obviously subscribe to Customary International Law, which states in legal terms exactly what you stated above. While you are accusing the US of missing the mark, please look over the numerous egregious violations of these signatory countries. You will get much more bang for your buck there.
Let us look at the US paying its dues - for quite some years the UN was in arrears, yet its duty was to pay. That was remedied last year.
--- This is essentially a rabbit trail, unrelated to this treaty. Regardless, you might want to research how many countries are in arrears. According to a Reuters article (http://www.reuters.com/article/idUSTRE59K5Y520091021), only 22 countries were paid in full as of October 2009.
It is in breach, along with every other nation, of Articles 43, 45 and 47, concerning the establishment of armed and airforce contingents for peacekeeping and a Military Staff Committee. I see no challenge in your courts, this has been so since 1945.
--- So? What does that have to do with the UN CRC?
part 2
The USA has ratified 2 of the Protocols to the Convention on the use of children in armed forces and prostitution and exploitation. No argument advanced there against such a process.
----These were limited protocols in agreement with the basic law of our nation. We therefore agreed to do what we were already doing. While you are thinking about this, consider all the countries which have not signed these optional protocols. Are they therefore “for” children as soldiers and for child prostitution? Please take aim at them where real harm is occurring.
I also have some problem with the use of the term "parental rights". This has been advanced in response to the idea of there being children's rights enshrined in a treaty and signed and ratified by the US? That Convention is explicit in what these children's rights are, they are detailed and set down.
continued
Dear Come and Play,
ReplyDeleteI noticed your reference to these comments on another blog. It may appear that I have not responded (and refuted) your points above. However, if you go to another full post http://parentalrightstn.blogspot.com/2011/01/response-to-come-out-and-play.html , you will find my point by point clear refutation.
Or you may just click on "Response to Come out and Play" on the left hand column.
Sincerely, Eric Potter MD