OVERCOMING RELIGIOUS OBJECTIONS TO THE
CONVENTION ON THE RIGHTS OF THE CHILD
David M. Smolin*
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
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
82 EMORY INTERNATIONAL LAW REVIEW [Vol. 20
kind of understanding and respect conducive to productive discussions of the
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
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
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
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
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
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
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
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
19 CRC, supra note 1, arts. 20–21.
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
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
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,
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
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
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
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
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.”
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
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
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
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
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.”
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
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).
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.
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
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
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
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
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
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.