"OVERCOMING RELIGIOUS OBJECTIONS TO THE CONVENTION ON THE RIGHTS"
OVERCOMING RELIGIOUS OBJECTIONS TO THE CONVENTION ON THE RIGHTS OF THE CHILD David M. Smolin* INTRODUCTION This Essay is an exercise in mediation between children’s rights groups and conservative religious groups within the United States. Of course the two groups are not mutually exclusive; many persons of conservative religious belief are significantly involved in the human rights or children’s rights movements. However, to a significant degree, the two groups have collided over the Convention on the Rights of the Child (CRC).1 The United States is virtually the only nation that has not ratified the CRC,2 and some religious groups’ opposition to ratification has apparently played a significant role.3 Unfortunately, the alliance of mutual concern that should exist between conservative religious communities and human rights advocacy, including children’s rights, has foundered to some degree due to the sharp disagreement about U.S. ratification of the CRC. Mediation, as a method of dispute resolution, requires the concerted effort of each side to understand the other in an environment of mutual respect. Because I am an active participant in the kind of religious community that has opposed ratification of the CRC, while also being actively involved in scholarship on children’s issues, I am hopeful that this Essay can further the * Professor of Law, Cumberland School of Law, Samford University, Birmingham, Alabama. I am grateful to the organizers of the “What’s Wrong with Children’s Rights?” conference for allowing me to participate, and I very much enjoyed the opportunity to learn from the conference participants and audience comments and questions. I would like to acknowledge the research assistance of Lee Ellen Bagley and Cheryl Howell Oswalt. 1 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]. 2 Johan D. van der Vyver, American Exceptionalism: Human Rights, International Criminal Justice, and National Self-Righteousness, 50 EMORY L.J. 775, 778 (2001) (noting that United States and Somalia are the only nations that have not ratified the CRC). 3 See, e.g., Amnesty International USA, Children’s Rights, Convention on the Rights of the Child, Frequently Asked Questions, http://www.amnestyusa.org/children/crn_faq.html (last visited Feb. 27, 2006) (stating that “[c]onservative religious organizations . . . have spearheaded the efforts in opposition to the Convention”). 82 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 kind of understanding and respect conducive to productive discussions of the issues. The title of this Essay may erroneously suggest that its purpose is to demonstrate that there are no valid religious objections to the CRC. Thus, some may expect me to attempt a definition of religious doctrine that would lead logically to support for the CRC. Instead, I will describe the objections to the CRC commonly mentioned by some religious conservatives, but then suggest the kinds of reservations, understandings, and declarations that could logically overcome these objections. Overcoming religious objections to the CRC from this standpoint does not require so much a modification of religious belief as it does a somewhat altered understanding of the nature and obligations of the CRC. At the same time, I attempt here to place the religious objections to the CRC within the context of political and legal traditions and conflicts within the United States. Seen in this light, it may be that the so- called “religious” objections to the CRC have as much to do with the peculiar legal and political situation of the United States as they do with religious doctrine per se. I. OVERCOMING RELIGIOUS STEREOTYPES: RELIGIOUS CONSERVATIVES IN THE UNITED STATES AND HUMAN RIGHTS ADVOCACY The largest groups of religious conservatives in the United States are evangelical Protestant Christians and traditionalist “high church” Christians, including Roman Catholics, Anglicans, and others. While some would seek to marginalize such groups as a kind of far right fringe, the size of this group and the variety within its members suggest that they constitute a part of mainstream American culture. Evangelical Protestants alone represent between one- quarter and one-third of the population of the United States.4 While those who identify themselves as Christian constitute a large majority of the American population, those whose religious beliefs might be considered conservative or traditionalist constitute a large plurality of Americans. While many who are religious conservatives are also politically conservative, that relationship is not automatic. The large group of theologically conservative Protestant and Roman Catholic Christians in the United States divide to a significant degree 4 David M. Smolin, Religion, Education, and the Theoretically Liberal State: Contrasting Evangelical and Secularist Perspectives, 44 J. CATH. LEGAL STUD. 99, 101–02 (2005). For definitional and statistical issues related to the term “evangelical,” see id. at 99–102. 2006] OVERCOMING RELIGIOUS OBJECTIONS 83 over political issues, and many would be considered political liberals or moderates. Because active opposition to the CRC has been concentrated in politically conservative—or at least neo-conservative—groups, the key religious opposition to the CRC has come from those who are both politically and religiously conservative. The term “religious right” is sometimes used to stereotype such groups, but many would consider themselves to be both theologically conservative and traditionalist on social issues without identifying with the so-called religious right. Political beliefs interact in complex ways with religious beliefs so that even those who are in some ways both religiously and politically “conservative” may yet not fall within the stereotyped beliefs of the so-called religious right. Indeed, even many who embrace the religious right may not fit the overdrawn stereotypes sometimes used to describe this group. For present purposes, it is important to note that among both Protestant evangelicals and Roman Catholics, including those clearly identified with the so-called religious right, there has been a great deal of human rights activism in recent years. Religious conservatives in the United States have been particularly active in advocating for human rights in regard to certain aspects of human and child trafficking, international religious liberty, and human rights abuses in Sudan.5 Religious conservatives are also active in response to both large-scale disasters and chronic need, and they participate actively in both direct assistance and political efforts aimed at alleviating a wide range of human ills. This activism has led many leaders and participants of religious conservative movements within the United States to positively identify with much of the language and goals of the broader human rights movement. Indeed, religious conservatives within the United States have supplied much of the activism and passion in political efforts to engage the United States politically in support of international human rights.6 While former President Jimmy Carter is not viewed as politically conservative, his combination of human rights advocacy and open evangelical piety, both during and after his presidency, has furthered an identification of evangelical Christian political activism with support for human rights. The fact that this activism has occurred among American evangelicals of varying 5 See generally ALLEN D. HERTZKE, FREEING GOD’S CHILDREN: THE UNLIKELY ALLIANCE FOR GLOBAL HUMAN RIGHTS (2004); GARY A. HAUGEN, GOOD NEWS ABOUT INJUSTICE (1999). 6 See HERTZKE, supra note 5, at 33–35. 84 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 political views and both political parties over several decades suggests that there is a natural congruence between many forms of American Protestant evangelicalism and human rights activism. For Roman Catholics, the approach of the late Pope John Paul II has been quite significant. Despite the church’s well-publicized conflicts with some human rights activists over issues such as abortion and contraception, John Paul II deeply embraced the language of human rights to express the church’s concern for human dignity and its activism on behalf of the poor and vulnerable. Thus, Roman Catholics throughout the world, including the United States, have become habituated to the ideals and language of the human rights movement, even when there have been sharp disagreements about the import of those ideals for particular issues.7 This largely positive picture of the relationship between theologically- conservative Christianity and the human rights movement does not capture all nuances. Some evangelicals are still influenced by anti-United Nations perspectives that have their roots in dispensational Protestant fundamentalism, and these perspectives sometimes carry over to forge a deep distrust of “international human rights.”8 However, efforts to understand contemporary evangelicalism, or even fundamentalism, primarily through the lens of these shrinking minority elements are not productive. An accurate account of religious opposition to the CRC must account for the combination of human rights activism and opposition to the CRC, which is prevalent in much of the conservative religious community in the United States. II. RATIFYING THE CRC PIECE BY PIECE: THE UNTOLD STORY During the twentieth century a fierce debate raged within U.S. constitutional law as to whether the Bill of Rights had been made applicable to the states through the enactment of the Fourteenth Amendment.9 The Supreme Court never accepted the argument that the Fourteenth Amendment had incorporated and applied the entire Bill of Rights against the states, but it did accept incorporation on a clause-by-clause basis. By the late twentieth 7 See, e.g., Mary Ann Glendon, What Happened at Beijing, FIRST THINGS, Jan. 1996, at 30, available at http://www.firstthings.com/ftissues/ft9601/articles/glendon.html. 8 Cf. Susan H. Bitensky, Educating the Child for a Productive Life, in CHILDREN’S RIGHTS IN AMERICA 167, 182 (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). 9 See U.S. CONST. amend. XIV. 2006] OVERCOMING RELIGIOUS OBJECTIONS 85 century, most of the important content of the Bill of Rights had been held applicable to the states through the process of selective incorporation.10 The incorporation battle serves as a rough analogy to the situation with the CRC. While advocates for the CRC have argued for ratification of the entire document, and opponents have opposed ratification, the United States has been involved in a process of ratifying and implementing critical parts of the CRC on an article-by-article basis. The process has been facilitated by the central role of the CRC in the children’s rights movement. The CRC serves as a kind of umbrella charter whose broad terms are filled out and implemented, often by additional treaties focused on particular issues. The failure of the United States to ratify the overall charter (the CRC) has not stopped it from ratifying the treaties that elaborate upon various articles of the CRC. Ironically, this process of article-by-article implementation of the CRC through other treaties has occurred without any real political controversy within the United States and often with the active support of conservative religious communities. The support of the conservative religious communities for these children’s rights treaties has been consistent with their broader support for human rights during this period. The treaties involved in this process include the Worst Forms of Child Labour Convention,11 the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,12 the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,13 the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, of the United Nations Convention Against Transnational Organized Crime,14 the 10 For a short summary of the constitutional debate over incorporation, see ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 480–86 (2d ed. 2002). 11 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, June 17, 1999, 2133 U.N.T.S. 161 [hereinafter Worst Forms of Child Labour Convention]. 12 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, G.A. Res. 263, U.N. GAOR, 54th Sess., Annex I, U.N. Doc. A/RES/54/263 (May 25, 2000) (entered into force Feb. 12, 2002) [hereinafter Optional Protocol on the Involvement of Children in Armed Conflict]. 13 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, G.A. Res. 263, U.N. GAOR, 54th Sess., Annex II, U.N. Doc. A/RES/54/263 (May 25, 2000) (entered into force Jan. 18, 2002) [hereinafter Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography]. 14 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (2001) [hereinafter 2001 Trafficking Protocol]. 86 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 Hague Convention on Intercountry Adoption,15 and the Hague Convention on the Civil Aspects of Child Abduction.16 These treaties elaborate Articles 11, 20-21, 32, 33, 34, 35, 36, 38, and 39 of the CRC, as described below. A. Article 11 of the CRC Article 11 requires States Parties to “take measures to combat the illicit transfer and non-return of children abroad,” including promoting “the conclusion of bilateral or multilateral agreements or accession to existing agreements.”17 The Hague Convention on the Civil Aspects of Child Abduction, which predates the CRC, and which came into effect for the United States in 1988, significantly addresses and implements this provision of the CRC.18 B. Articles 20-21 of the CRC Articles 20 and 21 address interventions and placements concerning children who, for various reasons, do not, or, for their best interests, should not live within their family of origin.19 These articles address several possible interventions, including intercountry adoption.20 The portions relating to intercountry adoption are addressed in detail in the Hague Convention on Intercountry Adoption.21 The United States has clearly indicated the intent to ratify this Hague Convention22 after the creation of the regulatory and institutional framework necessary to implement the Convention. The slowness of the ratification process has not been attributable to religious groups or even to extensive political opposition, but rather to the complexities of implementing the governmental framework required by the Hague Convention, which adds a substantial federal role with respect to adoption agencies. 15 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, May 29, 1993, 32 I.L.M. 1134 [hereinafter Hague Convention on Intercountry Adoption]. 16 Hague Convention on the Civil Aspects of Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. This convention was implemented in the United States by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601–11610 (2000). 17 CRC, supra note 1, art. 11. 18 Hague Convention on the Civil Aspects of Child Abduction, supra note 16; see also CRC, supra note 1. 19 CRC, supra note 1, arts. 20–21. 20 Id. 21 Hague Convention on Intercountry Adoption, supra note 15. 22 See U.S. Dep’t of State, Hague Convention on Intercountry Adoption and the Intercountry Adoption Act of 2000: Background, http://travel.state.gov/family/adoption/convention/convention_2290.html (last visited Apr. 2, 2006). 2006] OVERCOMING RELIGIOUS OBJECTIONS 87 C. Article 32 of the CRC Article 32 addresses child labor.23 This area has long been addressed by the International Labour Convention.24 The International Labour Organization’s (ILO) conventions on the subject, of course, predate the creation of the CRC by decades. While the United States has not ratified the 1973 Minimum Age Convention, it has, without any political opposition, ratified the 1999 Worst Forms of Child Labour Convention.25 D. Article 33 of the CRC Article 33 addresses the involvement of children in the use, production, and trafficking of illicit “narcotic drugs and psychotropic substances.”26 The concerns with the involvement of children in production and trafficking are substantively addressed in the Worst Forms of Child Labour Convention.27 E. Article 34 of the CRC Article 34 addresses sexual exploitation of children.28 These concerns are addressed in a number of treaties ratified by the United States, including the Worst Forms of Child Labour Convention; the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, of the United Nations Convention Against Transnational Organized Crime.29 F. Article 35 of the CRC Article 35 addresses the abduction, sale, or trafficking of children.30 These concerns are addressed in the Worst Forms of Child Labour Convention; the 23 CRC, supra note 1, art. 32. 24 See Worst Forms of Child Labour Convention, supra note 11. 25 The Worst Forms of Child Labour Convention was adopted by the ILO in June 1999; the treaty was received in the Senate in August 1999; and the United States Senate ratified the treaty in November 1999. The Library of Congress, Legislative Actions on the Convention for the Elimination of the Worst Forms of Child Labor, http://thomas.loc.gov (follow “Treaties” hyperlink; then search “Treaty Number” for “106-5”) (last visited Apr. 2, 2006). 26 CRC, supra note 1, art. 33. 27 See Worst Forms of Child Labour Convention, supra note 11. 28 CRC, supra note 1, art. 34. 29 See Worst Forms of Child Labour Convention, supra note 11; Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, supra note 13; 2001 Trafficking Protocol, supra note 14. 30 CRC, supra note 1, art. 35. 88 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, of the United Nations Convention Against Transnational Organized Crime.31 Both the Hague Convention on Intercountry Adoption and the Hague Convention on the Civil Aspects of Child Abduction also address the abduction, sale, and trafficking of children.32 G. Article 36 of the CRC Article 36 addresses “all other forms of exploitation prejudicial to any aspects of the child’s welfare.”33 The apparent purpose of this provision is to ensure that the CRC’s delineation of certain forms of child exploitation not be read to leave unaddressed other, unnamed forms of child exploitation.34 The treaties cited under Article 35 address multiple forms of child exploitation and thus could also be relevant to this provision.35 H. Article 38 of the CRC Article 38 addresses children and armed conflict.36 Portions of this provision would presumably be addressed by international humanitarian law, including various treaties to which the United States is a party. More specialized aspects of this article are addressed in the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.37 31 See Worst Forms of Child Labour Convention, supra note 11; Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, supra note 13; 2001 Trafficking Protocol, supra note 14. 32 See Hague Convention on the Civil Aspects of Child Abduction, supra note 16; Hague Convention on Intercountry Adoption, supra note 15. 33 CRC, supra note 1, art. 36. 34 See id. 35 See Worst Forms of Child Labour Convention, supra note 11; Hague Convention on the Civil Aspects of Child Abduction, supra note 16; Hague Convention on Intercountry Adoption, supra note 15; Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, supra note 13; 2001 Trafficking Protocol, supra note 14. 36 CRC, supra note 1, art. 38. 37 See Optional Protocol on the Involvement of Children in Armed Conflict, supra note 12. 2006] OVERCOMING RELIGIOUS OBJECTIONS 89 I. Article 39 of the CRC Article 39 addresses the recovery and reintegration of children who have been harmed by exploitation, neglect, abuse, torture, or armed conflict.38 The treaties joined by the United States, which address several of these harms, also address these issues of recovery and reintegration.39 *** Many of the provisions of the CRC which have not been elaborated upon in a separate treaty nonetheless are largely implemented by the law and practice of the United States. Thus, the United States is in substantial compliance with many of the principles of the CRC applicable to the treatment of children within the domestic legal system. The recent holding of the U.S. Supreme Court abolishing the juvenile death penalty removes one of the most obvious conflicts that had existed between the CRC and U.S. law.40 Thus, the U.S. legal system is committed to most of the substantive standards and content of the CRC through a combination of treaty commitments and existing federal or state law. Before considering the religious objections to the CRC, it is important to place these objections in perspective. The consistency between United States law and many provisions of the CRC has not excited any opposition in conservative religious communities. Indeed, religious conservatives within the United States have often supported human rights efforts that in effect elaborate and implement significant parts of the CRC. Religious objections to the CRC therefore represent targeted and focused objections to specific provisions of the CRC and do not represent a generalized rejection of human, or even children’s, rights. 38 CRC, supra note 1, art. 39. 39 See Optional Protocol on the Involvement of Children in Armed Conflict, supra note 12, art. 7; Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, supra note 13, art. 9(3); Worst Forms of Child Labour Convention, supra note 11, art. 7(3). 40 See Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments prohibit execution of individuals under the age of eighteen at the time of their capital crimes). 90 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 III. “RELIGIOUS” OBJECTIONS TO THE CRC Some religiously-oriented organizations and individuals within the United States have objected to certain provisions of the CRC.41 A close analysis of these objections indicates that they constitute legitimate concerns that could be addressed through Reservations, Understandings, and Declarations (RUDs).42 This section includes both an analysis of the objections and a summary of the kinds of RUDs which could address them. A. Article 5: The Role of Parents in a World of Children’s Rights Article 5 of the CRC states the following: 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 43 recognized in the present Convention. The paradox of this section is that its recognition of parental responsibilities and rights is couched in language which seems to reduce the 41 See, e.g., CHRISTOPHER J. KLICKA, HOME SCH. LEGAL DEF. ASS’N, THE UN CONVENTION ON THE RIGHTS OF THE CHILD: THE MOST DANGEROUS ATTACK ON PARENTS’ RIGHTS IN THE HISTORY OF THE UNITED STATES (Nov. 1, 1999), http://www.hslda.org/docs/nche/000000/00000020.asp?PrinterFriendly=True; HOME SCH. LEGAL DEF. ASS’N, AN ANALYSIS OF THE UNITED NATIONS COMMITTEE ON THE RIGHTS OF THE CHILD CONCLUDING OBSERVATIONS (Nov. 11, 1999), http://www.hslda.org/docs/nche/000000/00000022.asp?Printer Friendly=True; HOME SCH. LEGAL DEF. ASS’N, OPPOSE THE UN CONVENTION ON THE RIGHTS OF THE CHILD (Nov. 1, 1999), http://www.hslda.org/docs/nche/000000/00000021.asp?PrinterFriendly=True; MICHAEL P. FARRIS, HOME SCH. LEGAL DEF. ASS’N, THE AMERICAN BAR ASSOCIATION AND THE UN CONVENTION ON THE RIGHTS OF THE CHILD: HOW WILL AMERICAN LIVES BE CHANGED BY RATIFICATION OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD? (Nov. 1, 1996), http://www.hslda.org/docs/nche/000000/ 00000023.asp?PrinterFriendly=True; LT. COL. ROBERT L. MAGINNIS, FAMILY RES. COUNCIL, PROMOTING A POSITIVE VISION OF THE FAMILY (Sept. 1, 2002), http://www.frc.org/get.cfm?i=PD02I1&v=PRINT. For some broadly traditionalist or neo-conservative objections see Kay S. Hymowitz, U.N. Fairy Tales About Children, CITY J., May 7, 2002, http://www.city-journal.org/html/eon_5_7_02kh.html; Bruce C. Hafen & Jonathan O. Hafen, Abandoning Children to Their Rights, FIRST THINGS, Aug./Sept. 1995, at 18, available at http://www.firstthings.com/ftissues/ft9508/hafen.html. 42 In stating that there are some legitimate concerns regarding the CRC, I am not endorsing all of the statements and objections regarding the CRC expressed by various religious organizations and individuals, such as those cited in note 41. At the same time, my view that the valid concerns with the CRC can be addressed through RUDs is my own view and does not necessarily represent the views of any other persons or organizations. 43 CRC, supra note 1, art. 5. 2006] OVERCOMING RELIGIOUS OBJECTIONS 91 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.44 To some, this language appears to define parental rights as that of simply advising and facilitating the exercise of decisional autonomy by children. Reducing parental responsibilities and duties to facilitating the choices of children would be contrary to the common understanding of children’s rights and the overall structure of the CRC. Most children’s rights are not couched in terms of the child’s right to make choices. Thus, the rights included in the CRC are commonly divided into provision, protection, and participation rights. Provision and protection rights are not primarily related to the question of the child’s autonomy or even participation, but rather relate to what others must do to provide for and protect children. Given the CRC’s understanding that the family is the “natural environment for the growth and well-being of . . . children,”45 the first-line providers of provision and protection for the child are the parents and other family members. The parental roles of providing for the needs of the child and protecting the child from harm often require parents to act contrary to the immediate desires and will of the child and are not effectuated primarily through offering the child choices. Protecting the child often requires the parent to remove options and choices from the child. Similarly, the common parental provision of housing, food, shelter, and education to children is not well described as mere advice regarding choices. The lack of fit of this “advice” model to the parental role extends even as to the third group of children’s rights, often termed “participation” rights. Participation rights frequently constitute merely the right to be heard in regard to important decisions affecting an older child, rather than constituting the autonomy right to make decisions. Participating in decisions is not the same as making them; yet, the language of Article 5 could be read to imply that the primary parental role is to provide “direction and guidance”—meaning advice—to children as they exercise autonomy rights.46 Because Article 5 purports to define the respect that States Parties must accord to parental rights and responsibilities, its awkward and ambiguous language can be viewed as distorting the Convention’s entire treatment of children’s rights. If the Convention mischaracterizes parental rights and 44 Id. 45 Id. pmbl. 46 Id. art. 5. 92 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 responsibilities, it can be argued that it similarly mischaracterizes the interrelated set of children’s rights. The difficulties created by the language of Article 5 exacerbate some inherent tensions in the very concept and language of children’s rights. Particularly within the United States, where provision rights have not been broadly accepted, “rights” tend to be construed as autonomy rights. The very phrase “children’s rights,” particularly within the context of the United States, thus tends to imply that children possess adult-like rights to decisional autonomy. The difficulty with this implication, of course, is that the U.S. legal system, in accordance with other national legal systems, for the most part does not grant autonomy rights to children. Children lack the most basic autonomy rights, such as the liberty to enter into binding contracts, to accept employment, or to sue or be sued in their own names. Children lack the most basic liberty interest in controlling their daily schedules, as they are subject to compulsory education laws.47 The very subject of “children’s rights” therefore can descend into self- contradiction. To the degree that one protects children through protection and provision rights, the child is generally stripped of a corresponding autonomy right or liberty. To the extent that one grants a child an autonomy right, the child is stripped of a corresponding “protection.” Thus, the provision/protection right of free, compulsory education strips children of the autonomy to control their lives and time at the most basic level and renders them status offenders if they leave school. Protecting children from child labor strips them of the liberty to work and earn their own wealth. Incapacity rules that protect children from the negative consequences of their actions under criminal, tort, and contract laws simultaneously strip children of control of their own affairs and place them under the control of adults and/or the State. This dilemma seems built into the nature of childhood. It is self-evident that granting infants and toddlers autonomy rights would be either absurd or cruel. Infancy and early childhood is defined by dependency—the very opposite of autonomy. And few would seriously advocate that developed nations eliminate compulsory education or child labor laws affecting older children for the purpose of furthering children’s autonomy rights. Thus, even those who argue that autonomy rights should be accorded to older children tend to do so in highly selective ways. They may want children to possess 47See Bruce C. Hafen & Jonathan O. Hafen, Abandoning Children to Their Autonomy: The United Nations Convention on the Rights of the Child, 37 HARV. INT’L L.J. 449, 490–91 (1996) 2006] OVERCOMING RELIGIOUS OBJECTIONS 93 autonomy rights in relationship to sexuality, procreation, and medical care, for example, while denying autonomy rights in relationship to criminal responsibility or child labor. Article 5 of the CRC does point in certain ways toward a workable resolution of the inherent paradox of children’s rights. The reference to the “evolving capacities of the child” sensibly suggests that the balance of protection and participation rights shifts toward participation as the child matures.48 Certainly parents and other adults typically grant children greater degrees of both responsibility and autonomy as they develop. Governmental rules on incapacity often are more rigid in stripping children broadly of certain autonomy rights without any individualized determination of maturity. In some areas of law there is no graded “evolution” of rights: one is either incapacitated as a “child” or responsible as an adult.49 Nonetheless, the CRC seems correct in pointing toward the commonsense perspective that parents— the subject matter of Article 5—should and do take account of the developing capacities of the child. The difficulty remains, however, that much of Article 5 appears to define the parental role principally as one of providing direction and guidance to the child’s choices. This apparently impoverished and distorted view of the parental role, in combination with other ambiguous provisions, has caused some critics to perceive the entire CRC as an attack on parental rights, and hence on the family. When this provision is placed by religious conservatives within the context of the “culture wars” regarding “family values” in the United States, emancipating children from parental authority seems like yet another attempt to undermine the family. This perception of an anti-family bias, moreover, occurs despite strong language in the preamble to the CRC on the special place and role of the family, as well as the clear statement in Article 18 that “[p]arents . . . have the primary responsibility for the upbringing and development of the child.”50 One way of meeting this difficulty would be to create an interpretative “understanding” relating to Article 5. The Understanding would say something like the following: The United States understands the obligation of States Parties to respect the responsibilities, rights and duties of parents to extend to 48 CRC, supra note 1, art. 5. 49 Hafen & Hafen, supra note 47, 464–65. 50 CRC, supra note 1, art. 18. 94 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 the entire role parents play as the persons with “primary responsibility for the upbringing and development of the child.” Article 18. The United States understands that this parental role includes the task of guiding and directing the child’s exercise of rights consistent with the evolving capacities of the child, as described in Article 5. The United States understands that the exercise of a child’s rights are not primarily expressed by the child exercising decisional autonomy but rather exist whenever the child receives “such protection and care as is necessary for his or her well-being.” Article 3(2). The United States understands that parental responsibilities, rights and duties require that parents on a regular basis make decisions in regard to the best interests of the child. While this proposed language is unusually philosophical for a RUD, it attempts to alleviate the legitimate concerns regarding the CRC’s theory of parental and children’s rights. Article 5’s language of guiding and directing children’s exercise of rights, which could be misunderstood to refer primarily to a child’s decisional autonomy, is best understood in the context of the entire CRC as a reference to the parent’s decisional role in relationship to the child’s best interests. For example, if a parent enrolls a child in a public, private, or religious school, the parent would be effectuating the child’s best interests while guiding the child’s exercise of their right to receive an education. The child exercises his right, in this instance, by attending school and participating in his own education, not by exercising decisional autonomy about whether, or where, to attend school. The evolving capacities of the child in this context refer not to the concept that as the child grows they acquire the right to decide whether or where to attend school, but rather refer to the obvious fact that the child’s evolving capacities are highly relevant to the manner in which they exercise their right to an education—meaning the manner in which they are educated. The benefit of interpreting Article 5 in this manner will be made even clearer as we address other controversial articles of the Convention. 2006] OVERCOMING RELIGIOUS OBJECTIONS 95 B. Articles 12-17: The CRC and Participation Rights The CRC extends children’s rights beyond provision and protection rights to participation rights.51 This extension has caused concern in the United States, despite the significant role of the U.S. delegation in introducing these provisions. Religious conservatives have been concerned that participation rights undermine parental rights and responsibilities by mandating children’s decisional autonomy in relationship to their parents. Thus, the combination of Article 5’s unclear language on parental rights with these new definitions of children’s rights has, within the context of conflict over the family, proved unsettling. This difficulty has been acknowledged even by supporters of CRC ratification. Thus, Alison Dundes Renteln admits that the relationship between government, parents, and children “is not sufficiently worked out in the treaty itself. If the scope of the rights were more clear, this would alleviate the fears of American parents that the government would usurp their control of their own families.”52 A single question is central to Articles 12 through 17: Are the rights defined therein rights in relation to governments only, or do these “children’s rights” also extend to a child’s relationship with his or her parents?53 For example, Article 13 protects the right to “receive and impart information and ideas of all kinds,” through any media “of the child’s choice.”54 Does this provision limit the authority of parents to restrict their children’s use of the internet, television, and other media? Article 15 recognizes the child’s right to “freedom of association and to freedom of peaceful assembly.”55 Does this right limit a parent’s authority to control a child’s friendships and movements? Article 16 protects a child against “arbitrary or unlawful interference with his or her privacy, family, home, or correspondence.”56 Does this provision limit a parent’s authority to enter a child’s room or peruse his or her correspondence? Further, even if one assumes that a “wise parent” will generally grant an older 51 See generally David M. Smolin, A Tale of Two Treaties: Furthering Social Justice Through the Redemptive Myths of Childhood, 17 EMORY INT’L L. REV. 967, 973 n.13 (2003) (explaining division of the CRC into protection, provision, and participation rights). 52 Alison Dundes Renteln, Who’s Afraid of the CRC: Objections to the Convention on the Rights of the Child, 3 ILSA J. INT’L & COMP. L. 629, 638–39 (1997). 53 CRC, supra note 1, arts. 12–17. 54 Id. art. 13. 55 Id. art. 15. 56 Id. art. 16. 96 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 child some greater degree of freedom in relation to media, friendship, movements, and personal privacy, is a parent’s discretion in this area subject to governmental limitation due to these provisions? For the most part, the language of Articles 12–17 supports the viewpoint that these provisions exist in relation to the State and not in relation to the family. For example, the actual language of Article 12 on participation rights refers to the obligations of “States Parties,” with particular application to “any judicial and administrative proceedings affecting the child.”57 Thus, Article 12 concerns the rights of children to be heard in legal proceedings affecting them, not the right of children to be heard by their parents in “proceedings” in the home determining their curfew, bedtime, or allowance. Similarly, the close relationships of Articles 13–17 to similar provisions in other human rights conventions, which generally address traditional political rights in relation to the State, suggest that these provisions also are inapplicable to parental authority. Thus, Article 13 on freedom of expression and information has in view government censorship, not parental discretion. Likewise, Article 15 on the freedom of association has nothing to say about a parent’s discretion in limiting the friendships of his or her minor son or daughter. The point of this interpretation of Articles 12–17 is not to grant parents absolute power to make arbitrary and harmful decisions. Parental authority is already limited by both the CRC and state and federal law through “defining and proscribing” child abuse and neglect.58 The point, instead, is to maintain the balance between parental authority and State protection that exists in U.S. law and indeed in the CRC more broadly. Under this balance, “[p]arents . . . have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”59 Therefore, parental decisions regarding the best interests of children must be accorded a significant degree of respect; in legal terms, parental decisions about the best interests of children generally are presumed to be correct unless they violate some defined legal principle (such as child labor laws) or are found to harm the child. The State is not in a position to act as a supra-parent and step into every conflict between parents and children regarding the best interests of the child. 57Id. art. 12. 58CRC, supra note 1, arts. 9, 19, 34, 36. For a very brief and somewhat dated consideration of U.S. implementation of these principles, see John E.B. Meyers, The Child, Parents, and the State, in CHILDREN’S RIGHTS IN AMERICA, supra note 8, at 87, 96–98. 59 CRC, supra note 1, art. 18, ¶ 1. 2006] OVERCOMING RELIGIOUS OBJECTIONS 97 Nor is the State in a position to determine the appropriate media, activities, or friendships of children. Applying Articles 12–17 as recognized legal rights of children against their parents, by which children could invoke the State as the ultimate arbiter of their best interests in the everyday parenting decisions regarding media, associations, activities, and education, would radically alter the balance between parent, child, and State. Such an interpretation of the CRC would also place with the State tasks it simply could not fulfill, as the State lacks the resources and expertise to intervene in such a broad way within family life. In addition, the requirement of government neutrality toward religion would make it impossible for the State to determine the many issues of child rearing and education that implicate sensitive religious questions. Even a simple dispute between child and parent over whether the child should attend religious or public school would prove unworkable for courts to decide. Thus, the United States should add something like the following Understanding to any ratification of the CRC: The United States understands Articles 12 to 17 to provide certain rights to children in relation to governments, but does not understand those Articles to in any way affect the relationship between parents and children. Articles 12 to 17 do not create any rights of children in relation to parents, but only rights of children in relation to State Parties and governments. The rights and freedoms guaranteed in these Articles do not limit parental authority as parents exercise their “primary responsibility for the upbringing and development of the child.” Article 18. Actions of parents that harm children in relation to subjects addressed in these articles, such as media, religion, and associations, are addressed elsewhere as proscribed forms of child maltreatment, exploitation, abuse or neglect, rather than as violations of Articles 12–17. C. Article 19 The Committee on the Rights of the Child has repeatedly interpreted Article 19’s mandate to protect children from “all forms of physical or mental 98 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 violence”60 to require States Parties to “[p]rohibit all forms of violence, including corporal punishment, in the upbringing of children.”61 Thus, the Committee believes that States Parties should prohibit “all forms of corporal punishment, including in the context of school and the family.”62 Further, the Committee urges that “children be provided with mechanisms through which they can report and complain of corporal punishment practices.”63 This interpretation of the CRC is contrary to current U.S. law and practice. Currently, reasonable physical discipline of children by parents, including reasonable spanking of children on the buttocks, is generally considered within a parental privilege. While a significant number of states forbid corporal punishment in schools, the practice is legal and prevalent in much of the United States. The leading constitutional precedent held that the Eighth Amendment ban on cruel and unusual punishment is inapplicable to corporal punishment imposed by public school teachers or administrators.64 The subject of spanking has created a rift between expert opinion and popular practice within the United States. Thus, while the American Academy of Pediatrics shares the Committee’s negative view of corporal punishment,65 “as of 1985, 90% of parents used corporal punishment on toddlers and more than 50% continue such punishment up through early teen years, sometimes several times a week.”66 Some have objected to the CRC based on this interpretation of the Committee. This set of objections has three dimensions: (1) an objection to the perceived role of the Committee on the Rights of the Child; (2) an objection to the perceived intrusion into family life by the State, the Committee, and the international community; and (3) an objection to the anti-spanking norm. 60 Id. art. 19. 61 See, e.g., Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Spain, ¶¶ 30–31, U.N. Doc. CRC/C/15/Add.185 (June 13, 2002). 62 See Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Ethiopia, ¶ 39, U.N. Doc. CRC/C/15Add.144 (Feb. 21, 2001). 63 Id. 64 See generally ROBERT D. GOLDSTEIN, CHILD ABUSE AND NEGLECT: CASES AND MATERIALS 47–94 (1999); see also Ingraham v. Wright, 430 U.S. 651 (1977) (addressing corporal punishment in the public schools and the U.S. Constitution). 65 See Wolraich et al., Guidance for Effective Discipline, 101 PEDIATRICS 723 (1998); Am. Acad. of Pediatrics, Physical Punishment, http://www.aap.org/advocacy/ChildHealthMonth/spank.htm (last visited Apr. 2, 2006). 66 GOLDSTEIN, supra note 64, at 55. 2006] OVERCOMING RELIGIOUS OBJECTIONS 99 1. The Role of the Committee on the Rights of the Child The objection to the perceived position of the Committee on the Rights of the Child is underscored by the following statement by CRC expert Cynthia Price Cohen: “Ultimately, no law . . . can be understood until it has been interpreted and applied to a given set of circumstances by some ‘authoritative source.’ . . . In the case of the Convention on the Rights of the Child, that authoritative source will be the Committee on the Rights of the Child.”67 This quotation raises the question of whether the Committee would, upon U.S. ratification, operate as a kind of Supreme Court of children’s rights. The reaction of religious conservatives to such a prospect would be overwhelmingly negative. Many religious conservatives already resent the intrusion of the U.S. Supreme Court into controversial social, family, and religious issues. The perception has been that the Supreme Court has imposed elite cultural ideals in the name of the Constitution, thereby usurping the authority of the states and more democratically accountable branches of government. To a large degree, many religious conservatives distrust elite cultural institutions within the United States and prefer to cast their lot with democratically accountable institutions. These forms of religious populism reflect a deep strand of anti-elitism within American culture that is loath to cede authority to geographically or culturally distant authorities, particularly in culturally sensitive areas such as the family, children, education, and religion. Thus, the conservative religious community within the United States is not prepared to cede ultimate interpretive authority and jurisdiction over children’s issues to an international committee of experts, regardless of the strength of their qualifications. In this instance, the reaction of the religious community would hardly be unusual. It is doubtful that there would be a great deal of mainstream political support in the United States for recognizing the Committee on the Rights of the Child as a kind of second Supreme Court for matters touching on children and their rights. Indeed, even those who prize the role of the modern Supreme Court in American life would presumably be loath to delegate some of that authority to another body, let alone a foreign body. Fortunately for the CRC, Cynthia Price Cohen’s statement, regardless of its original purpose or intent, cannot be taken as a literal description of the role of the Committee in relationship to the CRC. The Committee is not a judicial body or court, much less one with jurisdiction over matters arising in the 67 Cynthia Price Cohen, A Guide to Linguistic Interpretation of the Convention on the Rights of the Child, in CHILDREN’S RIGHTS IN AMERICA, supra note 8, at 33. 100 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 United States. The Committee is essentially advisory—its role is to facilitate an ongoing dialogue about the interpretation and implementation of the CRC. While the interpretations of the Committee deserve respect, they are not in a judicial or legal sense binding on States Parties to the CRC. Given the confusion that has arisen within the United States concerning the role of the Committee, it would be best to create a declaration or understanding regarding its role. The purpose of this declaration or understanding would be to clarify that the interpretations or judgments of the Committee do not have the binding force of law, either through incorporation into domestic law or as a matter of international law. Such a statement is not meant to imply any disrespect to either the role of the committee or to the individual members. Rather, such a declaration or understanding would clarify that the role of the Committee is to assist the States Parties in a collaborative manner to implement the CRC. The Committee is not structured as, nor designed as, a judicial, administrative, legislative, or executive body, and its reports should not be given the force of judicial opinions, administrative regulations, legislation, or acts of enforcement. 2. Intrusions into the Family The concept that the CRC could proscribe all forms of corporal punishment in all homes and schools in the United States suggests a kind of authoritarian reach that is frankly frightening to many. Religious conservatives are not alone in pointing to a right to family autonomy that protects against unwarranted state intrusion. While there is general agreement that this zone of autonomy is not absolute and that the State has the duty and right to protect children from harm within the family, the question remains: Who defines what is considered sufficiently harmful to children to invade this zone of parental and family autonomy? This question goes far beyond the spanking issue. To the degree that the CRC is read to address a broad range of issues impacting parent-child relationships, it threatens to authorize a broad range of intrusions into the family. The balance between protecting familial autonomy and protecting children from harm within families is necessarily delicate. Some fear that the CRC could radically tilt this balance in the direction of an authoritarian State. Thus, the CRC is perceived as purporting to change both the legal norms governing this balance and the institutions with authority to adjudicate it. Rather than the balance being determined by democratically accountable domestic institutions, 2006] OVERCOMING RELIGIOUS OBJECTIONS 101 principally under state law, CRC ratification could shift authority to an international treaty incorporated into federal law. Rather than the balance being determined largely by the developing but familiar common law tradition, state legislatures, and state and local judges, CRC ratification apparently delegates responsibility for this balance to the international Committee on the Rights of the Child and, within the United States, to the federal courts. The solution to this dilemma is to understand that the CRC, while constituting a treaty, is not designed to be a technical legal document enforced and interpreted by courts and judicially applied to individual controversies. Properly understood, the CRC is a form of social mobilization addressed to the entire society. Its ideals and goals can only be realized when the entire society acts. This address to the entire society is not authoritarian through legalistic means but rather is collaborative through dialogue and action. The CRC’s terms are broad because they embrace the paradoxes of protection and participation inherent in both child development and the concept of children’s rights. These delicate balances are not altered by the CRC but, in substantial measure, are left to the implementing societies to work out. The simplest way to express the true nature of the CRC is to subject ratification to the declaration that the substantive provisions of the CRC are not self-executing. While many human rights advocates have objected to these declarations, they nonetheless have become routine in Senate ratifications of human rights treaties. Whatever the arguments about the use of such declarations in other treaties, the declaration that the CRC is not self-executing is particularly justified. Federal and state courts within the United States are ill-equipped to definitely interpret and apply the extensive and often ambiguous language of the CRC to the innumerable cases involving children, particularly given a climate of cultural conflict over the family and the legal tradition of judicial review. Instead, implementation of the CRC should be left, as appropriate, to the legislative and executive branches of government and to nongovernmental sectors of civil society. Indeed, under the terms of the CRC, the primary protectors of children’s rights are parents and families. In many respects, therefore, the CRC is addressed to parents as the first-line defenders of children’s rights. It would turn the CRC on its head to make a treaty that depends on the positive empowerment of parents for its implementation into a charter for authoritarian governmental intrusion into the family. 102 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 Although less important, a standard federalism declaration should also be inserted into the CRC. The federal-state division of authority that exists in family issues, while certainly open to change, development, and questioning, should not be altered by the mere ratification of the treaty. While some advocates for children’s rights may argue that the non-self- executing and federalism declarations gut the treaty, I would argue that these provisions reflect the true nature of the CRC as it currently functions in other societies. Although the CRC has been very broadly ratified, it has not generally been treated as a legal document as would a self-executing treaty in the United States. To a large degree, the CRC is treated as a hortatory declaration within many ratifying nations. The point is not simply that the CRC, like other human rights treaties, is often ratified and then ignored. Rather, the point is that even helpful implementation of the CRC generally is not accomplished through making it directly cognizable, or self-executing, within the courts. The CRC, most positively understood, identifies the delicate balances and paradoxes involved in children’s rights. These paradoxes include the following tensions: protecting children through limits on their choices while allowing them to gradually develop the capacity for decisional autonomy; the family as both the natural environment for children and yet also constituting sometimes the greatest threat to children; the necessity of State intervention in the lives of vulnerable children coupled with the incapacity of the State to “parent” a child or otherwise meet the child’s need for love and a family environment; the emotional appeal of the isolated child in need coupled with the brutality of isolating the needy child from the family; and the child’s profound tie to a family and community identity coupled with the child’s capacity to modify his or her own identity as he or she grows and matures. The meaning of these tensions can only be worked out in daily life according to cultural norms, for children and the family are themselves the incubators and future of each cultural group. One can no more isolate children’s issues from cultural issues than one can separate live fish from water. Under these circumstances, a treaty like the CRC which comprehensively addresses children’s rights necessarily addresses questions that must, in large measure, be implemented differently from culture to culture, with a large measure of discretion left to each State Party as to how to navigate the relevant tensions. Under these circumstances, the best model for implementation of the CRC as a whole is collaborative and participatory rather than legalistic and definitive. Definitive interpretations of the CRC, whether by the Committee on the Rights 2006] OVERCOMING RELIGIOUS OBJECTIONS 103 of the Child or a national judiciary, would therefore be as likely to hinder true implementation of the treaty as to facilitate it. Of course, the CRC also contains definable legal standards, such as the ban on the juvenile death penalty. Similarly, each society’s struggle to implement the CRC is likely to produce specific policy choices and some definable and enforceable legal doctrines. These more specific legal standards, however, can always be implemented by legislative or executive action. The CRC as a whole, however, remains ill-suited to judicial implementation. In U.S. terms, the CRC is closer in spirit to the Declaration of Independence, which is not judicially cognizable in U.S. courts, than it is to the Constitution, which implements many of the Declaration’s ideals in procedural and legal terms. 3. Corporal Punishment Some within the conservative religious community perceive a duty to employ corporal punishment with children in some circumstances, while a broader group believes that parents possess the authority and discretion to employ reasonable corporal punishment. These religious beliefs exist within a broader society where the vast majority of parents, of whatever religious belief, sometimes employ corporal punishment. Thus, the religious beliefs of many Americans coupled with their broader beliefs and practices serve as a barrier to ratification of an international instrument that proscribes all forms of corporal punishment by parents. By extension, a similar but weaker barrier exists to an international obligation to proscribe all corporal punishment within schools. The practice of corporal punishment within the United States is not unusual. Among many of the countries that have ratified the CRC, corporal punishment of children is commonplace. Thus, the broad ratification of the CRC, coupled with the Committee’s interpretation of the CRC, do not represent an international consensus on the practice of corporal punishment. Given the legalistic culture of the United States it seems best to handle the question of corporal punishment through an explicit understanding. This understanding would state that the United States does not understand the CRC as a whole, nor Article 19 in particular, to require the proscribing of all corporal punishment within the contexts of family and school. It seems permissible to state this view as an understanding, rather than a reservation, because even the Committee’s consistent position to the contrary does not represent a binding principle of international law. 104 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 D. Article 29 Commentators have noted a potential conflict between Article 29 of the CRC and current constitutional doctrine within the United States. 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.68 Thus, under U.S. constitutional principles it would be impermissible for the government to regulate the values of private education in the manner apparently required by the CRC. For example, there are both religious and non-religious persons and organizations within the United States who are, in principle, opposed to the United Nations. Under Supreme Court case law, there is in effect a constitutional right for private schools to foster a negative view of the United Nations, while under Article 29 the State would be obligated to either shut down such schools or alter their curriculum. Similarly, the practice in many religious schools of teaching that a particular religion is the true religion could be seen as violating Article 29’s requirement that private and public schools teach values of respect, friendship, and tolerance for other religions and cultures. This point is, of course, a debatable question of interpretation, for it could be argued that respect and tolerance do not require a doctrine of religious relativism. The CRC is hardly in a position to mandate the belief that all religions are equally true, which would of course render most religions false and therefore end in the self-contradiction of demanding respect for religious views through an implicit condemnation of most religions as intolerant and misguided. Nonetheless, the stark elevation of a particular religion at the expense of all others could easily be seen by some as violating Article 29, which would, of course, lead the Article to again contradict the constitutional ideals of parental rights and religious liberty which allow such religious teachings in private schools. Given this stark contradiction between Article 29 and U.S. Supreme Court constitutional precedents, a reservation is apparently necessary. Thus, the American Bar Association has recommended a reservation on this point, 68 See Bitensky, supra note 8, at 181. Relevant cases include Runyon v. McCrary, 427 U.S. 160 (1976); Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). 2006] OVERCOMING RELIGIOUS OBJECTIONS 105 although its language is perhaps too limited.69 Whatever the final language, the United States should create a reservation, accompanied perhaps as well by an interpretative understanding, which upholds the American ideals of parental rights and religious liberty. These are principles worth espousing both domestically and internationally, which ultimately contribute to, rather than denigrate from, human rights. E. Provision Rights The CRC, like other human rights treaties, embraces positive economic rights in a form different from the constitutional traditions of the United States. The U.S. Constitution overwhelmingly protects individuals from government without defining much in the way of rights to governmental help or assistance. Questions of governmental assistance generally are matters of political discretion rather than constitutional right within the American system.70 Economic rights in the United States primarily refer to the right of property owners to be free of government regulation. The concept of rights embodied in human rights treaties, by contrast, concerns both negative and positive rights in relationship to government. While it is unclear to what degree the human rights protections of positive economic rights necessarily require direct government provision, international human rights norms certainly refer to some level of positive governmental responsibility to meet basic human needs. The United States has generally not ratified human rights treaties involving positive economic rights. The most prominent example, of course, is the failure of the United States to ratify the Covenant on Economic, Social, and Cultural Rights.71 The significant provision rights within the CRC could prove an obstacle to U.S. ratification. These provisions raise the issue, for example, of whether the treaty would require that the government guarantee or provide health care to all children in the United States. In addition, one commentator 69 See AM. BAR. ASS’N, CTR. FOR CHILDREN AND THE LAW, POLICY ON U.S. RATIFICATION OF CONVENTION ON THE RIGHTS OF THE CHILD—SUPPLEMENTAL ACTION (Aug. 1994), available at http://www.abanet.org/child/abaploicies.html#83 (recommending that ratification of the CRC include certain RUDs, including an Understanding addressing Article 29, stating that “the United States is not required to regulate private educational institutions in any way beyond that which is permitted by the First Amendment to the United States Constitution”). 70 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. 71 International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1967). 106 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 has suggested that the CRC would require the United States “to move progressively toward child support, social insurance, parental support and income maintenance policies and practices. . . . Improvements in the minimum wage, the availability and amount of tax credits, education, job training, and job creation efforts, social insurance programs and benefits in safety net programs are all necessary.”72 These observations about the possible impact of the CRC were published in 1990, before the Clinton-era enactment of “welfare reform” and the international controversy over “neo-liberal” economics; indeed, they even predate the collapse of the Soviet Union and the relative embrace of capitalism by India and China. Nonetheless, these words accurately indicate the kind of issues which the CRC would still raise in the United States. Some religious conservatives are opposed to the expansion of the so-called “welfare state” based on a philosophy or theology of government that perceives assistance to the poor and needy as best accomplished through nongovernmental means. Of course the debates over the size and functions of government are a perennial political issue, regardless of religious perspective. It is often noted that the United States is unusual among comparable nations in its approach to health care, due to the failure of the government to guarantee health care to all through a nationalized health care system. The ongoing debates in the United States over Medicaid, Medicare, Social Security, health care costs, and other important budgetary issues continually implicate these questions regarding the role and size of government. The issues raised by the provision rights in the CRC underscore the need for the United States to declare the CRC to be non-self-executing. Such a declaration would place the responsibility for implementation of provision rights with the legislative and executive branches of both the federal and state governments rather than with the judiciary. The debate over the role of government in meeting the provision rights of children would be completely legitimate and would effectively duplicate and underscore existing debates in the United States about the role of government in meeting the needs of children. No one, including religious conservatives, can legitimately object to continuing public debate over how to ensure that the basic needs of children are met. The real objection to these CRC provisions would be that they alter the U.S. system of government, which traditionally places such issues within 72 James Weill, Assuring an Adequate Standard of Living for the Child, in CHILDREN’S RIGHTS IN AMERICA, supra note 8, at 197, 214. 2006] OVERCOMING RELIGIOUS OBJECTIONS 107 the democratically-accountable branches as political issues rather than within the judicial branch as constitutional law questions. Ratifying the CRC as a non-self-executing treaty should meet these legitimate objections. Some proponents of the CRC might object to the non-self-executing declaration precisely based on their hope that enactment of the CRC would mandate that the United States dramatically increase the role of government in meeting the basic needs of children and families. It is important that such proponents of the CRC clarify their approach to avoid giving a misleading and self-defeating double message. Logically, one cannot urge that ratification of the CRC should be non-controversial while simultaneously arguing that the CRC would force dramatic and controversial changes. If CRC ratification would literally create a judicially enforceable obligation for universal health care coverage, then ratification should be highly controversial and indeed is unlikely in the foreseeable future. By contrast, the premise of the CRC as a non-self-executing treaty designed to involve the entire society in an ongoing effort to effectuate the rights of children, is consistent with a call for immediate ratification. If proponents of CRC ratification look to other countries, they will likely find that ratification is, at best, the start of a developmental process rather than a defining victory in itself. From this perspective, acknowledging the CRC as non-self-executing is not so much a concession to opposition as it is recognition of the nature of the CRC. Ultimately, the ratification process for the CRC is no place to play bait- and-switch. Proponents of the CRC must learn to clearly differentiate between what ratification in itself will produce and what they hope the long-term implementation process, involving the collaborative effort of the whole society, would produce. Moreover, they have to recognize that, given the structure of the CRC and the constitutional and political traditions of the United States, most of the hoped-for changes will not be initiated by the judiciary, but instead will come from initiatives of the legislative and executive branches of the federal and state governments. Ratification of the CRC, in short, cannot be the kind of shortcut for the children’s rights movement that victory in the Supreme Court has sometimes been for some rights causes. 108 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 CONCLUSION Upon close examination, the so-called “religious” objections to the CRC flow both from religion and also from the complex interface of the CRC and the constitutional, political, and cultural contexts within the United States. Religious conservatives do have sincere religious convictions concerning parent-child relationships and the family which affect their approach to the CRC. Some religious conservatives also possess what they perceive as religious views of the proper role of government, which also bear upon the CRC. The factors that crystallize these religious and political views into opposition to the CRC, however, are largely peculiar to the political, constitutional, and cultural contexts of the United States. 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, 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. The divisions within society about the best interests of children and, more importantly, the division of legal authority concerning such matters, would be the same after ratification as they had been before ratification. Ratification of the CRC, in short, would not in the long term be a significant factor within the culture war over “family values.” This argument for CRC ratification, however, is purely defensive—a matter of diffusing objections. Organizations that devote most of their efforts to the culture wars within the United States may still oppose the CRC, even if they largely accept my argument. Why take a chance? Why risk the CRC altering the balance even a small amount? What positive gain is there in U.S. ratification of the CRC? The positive argument for the CRC requires religious conservatives to envision themselves more deeply as part of genuinely international religious 2006] OVERCOMING RELIGIOUS OBJECTIONS 109 movements. Why, American Christians must ask themselves, are we virtually alone, even among theologically-conservative Christians, in our negative reactions to the CRC? Why is most of the religious world not similarly afraid of the CRC? Why is the CRC so broadly embraced around the world if it really undermines fundamental arrangements like the family and parental authority? It is instructive, for example, that World Vision, a large evangelical relief and development nongovernmental organization, explicitly supports the CRC.73 World Vision’s support for the CRC is probably more typical of evangelical Christian opinion worldwide than is the sharp opposition to the CRC evidenced by many conservative Christian organizations within the United States. Given the traditional Christian emphasis on providing protection and assistance to the vulnerable, poor, needy, and oppressed, the CRC, along with human rights language generally, expresses a positive call and commitment to action. On a worldwide basis, those who seek to minister in the name of Christ among the tragic circumstances of human life apparently find more inspiration than fear in the words of the CRC. Religious conservatives within the United States should perceive, moreover, that the positive message of the CRC is relevant not only internationally but also domestically. The United States, in many respects, has not yet met its human rights obligations to the nation’s children. Properly understood, the CRC expresses well many of the concerns for the nurture and protection of children shared by religious conservatives. As the introduction to this Essay noted, there is a natural congruence between the overall concerns of the human rights movement and the concerns of conservative religious communities. The human rights movement needs the sustaining commitment and historically-based wisdom of those whose concern for human dignity is grounded in religious commitment. The religious community needs a method for expressing its commitment to human dignity and the vulnerable and oppressed in language accessible across the boundaries of particular religious, national, cultural, and ethnic communities. This “natural” alliance has its important and defining limits, as the religious communities must retain their own worldviews and sets of commitments to 73 See World Vision, Imagine a World Where Children Are Safe, http://www.wvi.org/wvi/global/ global.htm (“WV endorses the United Nations Convention on the Rights of the Child (CRC) as a powerful statement of obligations to children; and when advocating for the rights of the child, WV promotes the articles and principles of the Convention as a solid framework for action.”) (last visited Apr. 2, 2006). 110 EMORY INTERNATIONAL LAW REVIEW [Vol. 20 realities beyond that of the merely human and natural. Nonetheless, both the human rights and religious communities are enriched by their allied efforts, despite disagreements about worldview or particular issues that may arise. There are, of course, objections to the CRC and potential RUDs that stem primarily from non-religious issues and thus are beyond the scope of this Essay. The message of this Essay, however, may be relevant to those objections as well. That message is that the United States should ratify the CRC with RUDs expressive of genuine issues which the CRC poses in the context of the United States. This kind of careful and measured ratification would take the CRC and our commitment to it seriously, while opening the door to a long-term implementation process that hopefully would serve children and the entire society.