U.N. treaty trumps parental rights

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Originally published 10:38 p.m., August 27, 2006, updated 12:00 a.m., August 28, 2006

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Could a 10-person panel of foreign nationals dictate, with the full weight of U.S. law, how we raise our children? This idea seems far-fetched, even ridiculous, but, unfortunately, it is possible.

The problem stems from the United Nations Convention on the Rights of the Child, which has been adopted by 192 nations. The treaty creates civil, economic, social and cultural rights for every child. The Clinton administration sought ratification, but the treaty was not approved by the U.S. Senate because of opposition from senators who were concerned it would undermine parental rights.

For example, the convention gives children autonomy regarding the school they attend, the friends they have and the activities they choose. If there is a disagreement, the parent's decisions could be reviewed by a third party. Consequently, parents could be subject to "identification, reporting, referral, investigation, treatment and follow-up."

Many people are probably asking the question -- if the Senate didn't ratify it, why is the convention still a problem for the United States? Unfortunately, this is not the end of the story because the U.S. court system has been incorporating the treaty steadily through a doctrine called "customary international law." This is where U.S. courts look to foreign courts and other international treaties to derive its interpretation of the U.S Constitution.

In the 2004 case Roper v. Simmons, a majority on the U.S. Supreme Court noted that the execution of juvenile offenders violated several international treaties, including the U.N. Convention on the Rights of the Child, and stated that the overwhelming weight of international opinion against the juvenile death penalty provides confirmation for the court's own conclusion that the death penalty is disproportional punishment for offenders younger than 18.

Additionally, a change in the makeup of the Senate could result in the ratification of the treaty. The consequences of these actions could be devastating for the American family because it would mean that any state law relating to education, the family, adoption and dozens of other issues could be nullified by a judge.

Decisions interpreting the treaty in other nations could be relied on by our courts. An example of how this could unfold is occurring in Belgium today. A couple in Brussels is being threatened with criminal neglect for educating their children at home, and the Belgian authorities are using non-compliance with the convention as a legal argument to force the family to stop home-schooling. As reported by WorldNetDaily, the only response from the Belgian minister of education, Frank Vandenbroucke, came through a spokesman who said in a local newspaper that in Belgium home-schoolers must sign a document that requires them to follow the protocols of the U.N. convention.

"These parents have not done this. This is why the ministry has started an inquiry," he said.

It remains to be seen whether the Belgian courts, and potentially the European courts, uphold the position of the Belgian government. A ruling against the home-schooling Belgium family could have negative ramifications in the United States.

If the treaty is ratified, because of the way the U.S. Constitution is written, the convention would become the supreme law of the land. The U.S. Constitution's supremacy clause requires that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The U.S. Congress and state legislatures could not override the provisions of the treaty.

This scenario should remind us that we need to remain vigilant in defense of our liberty. In the short-term, it means that the appointment of judges who will not look to foreign courts for guidance is one of the ways the scenario above can be avoided.

• Michael Smith is the president of the Home School Legal Defense Association. He may be contacted at 540/338-5600; or send e-mail to media@hslda.org.

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