The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.
-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia
Ever since President Woodrow Wilson lobbied for his League of Nations at the end of World War One, Americans have resisted international political causes or organizations. In recent years, that resistance has been directed against the United Nations and its international human rights conventions that claim, among other things, to defend women and children and certain social and economic rights. With good reason, the U.S. Senate has ratified only one of these U.N. treaties and—as this essay will demonstrate—should not ratify any more. Driving that opposition, in part, is conservative distrust of “human rights” language, as such language is used by the political left to obscure a social liberationist agenda that is entrenched in various U.N. agencies charged with interpreting those treaties.
Yet many of the foundational human rights documents being used today to undermine the family actually provide a remarkable defense of the natural family, marriage between a man and a woman, and parental rights. Furthermore, the development of the concept of “human rights”—as well as its support among notable figures such as Mary Ann Glendon of Harvard Law School, the late Richard John Neuhaus, the founding editor of First Things, and the late Pope John Paul II—is proof that the idea is, if anything, conservative rather than liberal. The conservative character of human rights can be seen in the “granddaddy” of all human rights documents, the 1948 Universal Declaration of Human Rights. As Professor Glendon recounts its genesis:
Early in 1947, with the horrors of two world wars fresh in their memories, a remarkable group of men and women gathered, at the behest of the newly formed United Nations . . . to draft the first “international bill of rights.” So far as the Great Powers of the day were concerned, the main purpose of the United Nations was to establish and maintain collective security in the years after the war. The human rights project was peripheral, launched as a concession to small countries and in response to the demands made by numerous religious and humanitarian associations that the Allies live up to their wartime rhetoric by providing assurances that the community of nations would never again countenance such massive violations of human dignity. . . . [However,] together with the Nuremberg Principles [of 1946] . . . and the 1948 Geneva Convention, the Universal Declaration of Human Rights became a pillar of a new international system under which a nation’s treatment of its own citizens was no longer immune from outside scrutiny. The Nuremberg Principles . . . represented a determination to punish the most violent sorts of assaults on human dignity. The Genocide Convention obligated its signers to prevent and punish acts of genocide. . . . The Universal Declaration was more ambitious. Proclaiming that ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind,’ it aimed at prevention rather than punishment.”
The Preamble describes the Declaration as “a common standard of achievement for all peoples and nations” and states that “the peoples of the United Nations have . . . reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom.”
Reflecting on the Declaration fifty years after it was written, the Ramsey Colloquium, convened by the New York-based Institute on Religion and Public Life and composed of theologians, philosophers, and ethicists concerned with the preservation of public morality, noted, “The keystone of this reaffirmation is the dignity of the human person.” The first article states, “All human beings are born free and equal in dignity and rights.” It also highlights and recognizes, if vaguely, a corollary responsibility—“[Human beings] are endowed with reason and conscience and should act towards one another in the spirit of brotherhood.” The second article stresses the universality of the rights and freedoms expressed in the Declaration. They belong to everyone, without discrimination, by virtue simply of being a human being. The third article declares that the first of the “rights” belonging to everyone is “the right to life, liberty and security of person.”
The Ramsey Colloquium observed: “Although the formulation of these truths has a cultural history, they are not the possession of any one culture, nor does their universal recognition constitute a cultural imposition upon others.” The Universal Declaration of Human Rights is, as its title states, universal.
A Family-Friendly Declaration
The Declaration affirms in Article 16.3 the importance of that institution without which there is no human future, the family: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” This Article highlights common-sense facts, often overlooked by governments and international organizations: that the family exists prior to the state, that the family is the foundation of the state, and that the state is obligated to protect it. This priority is not simply vis-à-vis the national political unit—the state—but is also vis-à-vis the society, or larger community, itself. The family is the foundation; society and the state are built upon it. As any builder knows, if the foundation is cracked or unstable, the edifice built upon it is in danger of collapse.
The same article affirms the right of a man and woman to marry and found a family, recognizing that the family is founded (always in theory, if sometimes imperfectly in practice) upon marriage. In light of the essential roles that procreation and child-rearing play in society (Article 25.2): “Motherhood and childhood are entitled to special care and assistance.”
Echoing the recognition that the family is prior to the state, the Declaration acknowledges that parents are the primary educators of their children: “Parents have a prior right to choose the kind of education that shall be given to their children.” (Article 26.3) This clear recognition of the priority of the wishes of parents regarding the education of their own children over any designs of the state is reinforced by Article 16, which calls upon the state to protect the family. If the state presumes to usurp the rights of parents to choose the education of their children, it damages the family, violates its own obligations as outlined in the Declaration, and undermines the foundation of a just society and state.
The framers of the Universal Declaration believed the maintenance of those human rights that everyone today recognizes, such as the freedom of speech and of the press, is at the heart of the project to secure peace and justice. After all, the European and Asian totalitarian regimes—whose actions sparked the Second World War—came to, and remained in, power by a systematic denial of political and civil rights and freedoms, such as press and speech. What about parental rights in education? Professor Glendon provides the answer:
In the article on education  . . . [the drafting committee of the Declaration] made an important change, influenced directly by recollections of the National Socialist regime’s efforts to turn Germany’s renowned educational system into a mechanism for indoctrinating the young with the government’s program. . . . After Beaufort of the Netherlands recalled the ways in which German schools had been used to undermine the role of parents, a third paragraph was added: “Parents have a prior right to choose the kind of education that shall be given to their children.”
In other words, one of the most important lessons drawn from the experience of the Second World War is that parental choice in education is a fundamental plank of international peace and security. To combat totalitarianism and to protect human freedom, the framers of the Declaration wanted to ensure that parents, not bureaucrats or social engineers, have the final word in the education of their own children. This insight has particular application to the United States, where, since the 1960s, both the federal government and state agencies have presumed almost total control of public schools, often denigrating or ignoring the wishes of parents.
Enforcement of the Universal Declaration
The Declaration, though extremely persuasive, is not itself international law. Though reflecting the understanding of the international community regarding human rights, including those pertaining to the family and the education of children, the Declaration does not spell out or impose legal obligations binding upon nations. A system of treaties was devised to make the principles of the Declaration legally binding on nations that chose to ratify them. As Eleanor Roosevelt, who played a key role in the formation of the Declaration, explained:
The Covenant [or treaty] would be a simpler document in one way [than the Universal Declaration is]. It will have to cover fewer rights. But in another way it will be more complicated because the way those rights are to be assured to people throughout the world, under law, must be spelled out, and every nation in ratifying the Covenant—which will have the weight of a treaty—must be prepared to change its domestic laws so that it will be able to live up to its undertakings in the Covenant.
Written in 1966, the International Covenant of Economic, Social and Cultural Rights (the “ESC Covenant”) and the International Covenant on Civil and Political Rights (the “Civil & Political Covenant”) echo and enforce the provisions of the Declaration about the importance and protection of the family. The ESC Covenant (Article 10) requires each state to accord “the widest possible protection and assistance . . . to the family, which is the natural and fundamental group unit of society.” The Civil & Political Covenant similarly recognizes the primacy of the family in the life of society, and as the foundation of the state. Article 23 of the Civil & Political Covenant repeats, nearly verbatim, the provisions outlined in the Declaration and the ESC Covenant.
Both treaties elaborate on the freedom of education and its relationship to the family. The ESC Covenant (Articles 13 and 14) requires the provision of free, compulsory, universal primary education, requiring that the state “pursue” “the development of a system of schools.” These are ambitious provisions that envision an active and extensive role for the state. However, none of what the state undertakes in fulfilling this role is to be carried out in a way that undermines the rights of the family, or of the parents within the family, to direct the education of their children. The ESC Covenant (Article 13.3) states:
The States Parties to the present Covenant undertake to have respect for the liberty of parents and when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum education standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.
The article further states (emphasis added), “The liberty of individuals and bodies to establish and direct educational institutions, subject to” conformity with the principle that education is for “the full development of the human personality and the sense of its dignity.”
Article 13 also clearly affirms the primal right of parents to direct the education of their own children. Of course, such parental education (or parentally established schools) must meet “minimum education standards.” But once this obligation is met, parents are to be left free by the state to establish such schools and to take such steps to ensure that their own children are educated “in conformity with their own convictions.” This confirms that parents, not the state, have primary responsibility for the child’s education; they are the child’s primary educator.
The second of the two treaties that were envisioned as securing the rights enunciated in the Declaration, the Civil & Political Covenant, also contains a provision (Article 4) concerned with education that illumines why the international community was concerned about this subject: “The States Parties to the present Covenant undertake to have respect for the liberty of parents, and when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”
The framers of the Declaration and the two covenants understood that the future is in the hands of the children; it is they who will be the decision-makers of the future; the values they hold—the educational formation they have received—will help shape the decisions they will make, and, hence, the kind of society each nation will have in the future. To frustrate the ambitions of a new generation of social engineers who would control the child’s mind in order to control the future, the drafters of the ESC Covenant and the Civil & Political Covenant realized that parents must have a recognized right to pass on their values to their children.
Human Rights Treaties: The Second Generation
The ESC and Civil & Political covenants are sometimes referred to as the “first generation” of human rights treaties. A “second generation” of treaties followed, derived from the rights recognized in the Universal Declaration as well as particularized specifications of rights in the first generation treaties. Among the second generation of human rights treaties is the Convention on the Rights of the Child (CRC). This treaty was first set before the nations of the world in connection with the World Summit for Children in 1989. At a second summit in 2001-02, nations assessed the efforts on behalf of children, and, not surprisingly, found much remained to be done. The resolution adopted at the close of the Special Session in 2002 noted remaining problems regarding education, chief of which may have been that “more than 100 million children of primary school age, the majority of them girls, are not enrolled in school . . . and one third of all children do not compete five years of schooling, the minimum required for basic literacy.” The resolution called for a breath-taking array of programs and efforts to meet this problem. The task of achieving these goals is certainly one in which states, as such, must take the lead. Still, the nations gathered at the United Nations recognized that parents are “the primary caretakers of children.” They also pledged to “strengthen their capacity to provide optimum care, nurturing and protection.”
Certain sections of the CRC (most notably Articles 28 and 29) can be interpreted as diverging from the previous two covenants and the Declaration due to their extensive treatment of the responsibility of the state regarding education. Yet the CRC reaffirms many of the provisions regarding education and the family in the 1948 Declaration and the 1966 covenants. The Preamble makes clear that the family is the fundamental and natural unit of society, and that the family “should be accorded the necessary protection and assistance” by the state. Article 3 emphasizes that the parents are primarily responsible for the well being of the child, and that states are to assist them in the fulfillment of those responsibilities: “States parties [to this treaty] . . . [are to act for the child’s well-being], taking into account the rights and duties of [the child’s] parents.” This clearly establishes the correct priority—parents first, the state as an aid, where needed.
Article 5 makes the point clearer: “States Parties [to this treaty] shall respect the responsibilities, rights and duties of parents . . . to provide . . . appropriate direction and guidance in the exercise by the child of the rights recognized [herein].” The state does not, unless necessity dictates, substitute for parents. While establishing a statewide education system is appropriate, the state may not do so in a way that deprives parents—should they deem the state system deficient—of their right to ensure that their children receive education in non-state schools. Accordingly, the “liberty of individuals and bodies to establish and direct educational institutions” (Article 29.2) is affirmed.
Many tangible benefits flow from this approach. The state, unable to claim an absolute monopoly, is forced to compete. If the state fails to provide its citizens with an educational system which meets their needs, or which contradicts their values, the parents can, as an international human right, establish alterative schools that are more in conformity with their own values. Of course, under these international documents, such education must meet minimal standards—it must be about educating the child, not merely indoctrinating him. And such education is to prepare the child to live in a world where persons of different views live, and to respect the basic human rights of such others. That goal can be achieved in many ways; a one-size-fits-all state school system is not required. Homeschooling of children is perfectly congruent with these international human rights standards.
Distorting the Declaration by Committee
Every “human rights” treaty, whether the first generation or the second, contains provisions for the election of a committee to make advisory recommendations. For example, the CRC Committee (the U.N. Committee on the Rights of the Child), which holds three sessions a year, is comprised of eighteen “experts” in human rights and international law and juvenile justice. The CEDAW Committee (the U.N. Committee on the Elimination of Discrimination against Women), which includes twenty-three “experts” on women’s issues, meets every two years to monitor progress made by signatories in fulfilling treaty obligations.
By the terms of the treaties, committee recommendations are meant to be purely advisory; the committees are not empowered to make binding interpretations of their respective treaties. Nonetheless, the U.N. committees charged with offering guidance on the obligations incumbent upon signatory nations are advancing a radical agenda under the cover of providing review and recommendations. Even in countries that are not signatories to a particular treaty, the radical views of the respective committees are nonetheless welcomed and cited by sympathetic jurists, government officials, and activists pushing the same agenda. As the Ramsey Colloquium warns: “Human rights are threatened in the name of human rights.”
The interpreting committees have actively sought to undermine the Universal Declaration’s clear commitment to the primacy of the family and parental rights under the guise of expanding “children’s rights.” The committees are urging signatory states to give minor children: the right to privacy, even in the household; the right to professional counseling without parental consent or guidance; the full right to abortion and contraceptives; the right to full freedom of expression at home and in school; and the legal mechanisms to challenge in court their parents’ authority in the home. For example, in 1995 the CRC committee specifically rebuked the United Kingdom for allowing parents to withdraw their children from sex-education classes if they disagreed with the content:
Insufficient attention has been given to the right of the child to express his/her opinion, including in cases where parents in England and Wales have the possibility of withdrawing their children from parts of the sex education programs in school. In this as in other decisions, including exclusion from school, the child is not systematically invited to express his/her opinion and those opinions may not be given due weight, as required under article 12 of the Convention.
The CRC committee report to Belize recommended that the government set up legal mechanisms to help children challenge their parents, including making an “independent child-friendly mechanism” accessible to children “to deal with complaints of violations of their rights and to provide remedies for such violations.” The report goes further, asserting it is “concerned that the law does not allow children, particularly adolescents, to seek medical or legal counseling without parental consent, even when it is in the best interests of the child.” The CRC committee told Austria, “Austrian Law and regulations do not provide a legal minimum age for medical counseling and treatment without parental consent.”
Likewise, the CRC committee recommended the Japanese government “guarantee the child’s right to privacy, especially in the family.” The committee urged the Ethiopian government to change its laws so that “the limitation of the right to legal counsel of children be abolished as a matter of priority.”
The committee periodically issues “general comments” intended to flesh out the commitments inherent in the CRC treaty itself. In 2003, the committee’s General Comment No. 4 expounded upon “adolescent health and development in the context of the Convention on the Rights of the Child.” This comment asserts the right of children “to access appropriate information” regarding “family planning.” It instructed states to allow minors to receive confidential medical care. Minors should have “access to appropriate information [regarding HIV/AIDS and STDs], regardless of their marital status and whether their parents or guardians consent.” States should, according to the committee, “take measures to remove all barriers hindering the access of adolescents to information, preventative measures such as condoms, and care.”
General Comment No. 4 also unilaterally expands the purview of the CRC’s anti-discrimination clause (Article 2), which states that minors enjoy the rights of the treaty “without discrimination . . . with regard to ‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.’” The committee expands this list of protected classes to include “adolescents’ sexual orientation” despite the fact that no binding U.N. treaty mentions “sexual orientation.”
Another advisory committee, The Committee on Economic, Social, Cultural Rights, issued General Comment 20 on July 2, 2009. It claims that two new anti-discrimination categories, “sexual orientation” and “gender identity” exist even though sovereign states have repeatedly rejected these same categories in open debates at the United Nations. The comment is based on the Yogyakarta Principles, a controversial 2007 manifesto authored by U.N. human rights officials which re-interprets twenty-nine existing human rights to include homosexuality. That unofficial, non-binding document asserts that nations who are party to U.N. human rights treaties are already obligated to grant broad homosexual rights. If they do not, those nations are in violation of international law. Consequently, General Comment 20 says a “State’s constitution, laws and policy documents,” must be changed to include “measures to attenuate or suppress conditions that perpetuate discrimination,” including measures within “families.”
The committees have also waged war against motherhood, expressing opinions demeaning to motherhood and suggesting that state officials can replace mothers in fulfilling important social responsibilities. Rather than pointing out to signatory states the social and economic dangers of policies that jeopardize the position of mothers who want to stay at home to raise their children, U.N. committee recommendations not only denigrate the role of the stay-at-home mother as unfulfilling and damaging to her own welfare but also decry national policies that support her. Moreover, the committees advance their agenda under the guise of elevating the status of women and reducing discrimination.
A CEDAW committee report, for example, recommended that the government of New Zealand “recognize maternity as a social function which must not constitute a structural disadvantage for women with regard to their employment.” Almost a decade later the committee continued to place maternity at odds with women’s fulfillment as workers saying, “the Committee is concerned that the rates of participation in the labor force of mothers of young children and single mothers remain below the average for States members of the Organization for Economic Cooperation and Development.” The CEDAW committee “strongly” urged the government of Armenia to use the education system and the electronic media to combat the “stereotype” of women in the role of mother. The committee also criticized Belarus for the “prevalence of sex-role stereotypes, as also exemplified by . . . such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women’s traditional roles.” As might be expected from these examples, the interpretative committees also consistently push for nations to boost government-managed and subsidized daycare, despite research showing that on average, children in daycare fare worse intellectually, emotionally, and socially than their stay-at-home peers.
The American Impact
Although not an exhaustive list of assaults on the family, marriage, and motherhood being waged by U.N. committees, these examples illustrate the “powerful inclination to pick and choose among human rights, which result in favoring some (e.g., the right to privacy) at the expense of others (e.g., the rights of the family),” as the Ramsey Colloquium notes. “Such selectivity undermines the necessary connection between rights.”
One might be tempted to think that, whatever their “interpretation” of a human rights treaty, these U.N. committees are irrelevant to life in America when the treaty in question, whether the CRC or CEDAW, has never been ratified by the United States. However, such a view is mistaken. The political left has long argued not only that rights to abortion and to same-sex marriage have arisen under international law, but also that such laws are binding on the United States. The fact that many judges in the United States take an activist role—seeking to advance “contemporary” understandings of “rights,” rather than to enforce terms as the drafters of the original human rights conventions intended—raises the substantial likelihood that recommendations of U.N. committees will be cited in legal cases as evidence of what international law requires.
An instructive example is Lawrence v. Texas, decided by the U.S. Supreme Court in 2003. Therein, the Court relied upon “values shared with a wider civilization” (i.e., Europe) to decide whether a state statute prohibiting homosexual sodomy was consistent with the U.S. Constitution. Another example is Roper v. Simmons, in which the Court held it unconstitutional to sentence a minor to the death penalty, citing (among other authorities) the unratified CRC. Furthermore, Article 6 of the U.S. Constitution includes treaties among “the supreme law of the land.” Thus, if the United States ratified the CRC or CEDAW, and an interpretive committee found that language therein implicitly included same-sex marriage or abortion, the Supreme Court might hold that the United States was bound thereby.
Given how these strategic U.N. committees and their interpretations of international treaties, whether ratified or not by the U.S. Senate, are embraced by American elites, what recourse do ordinary Americans have to ensure the preservation of the admirable principles of the Universal Declaration? How can conservatives respond to social deconstructionists who appeal to such recommendations in academic journals, or to jurists in U.S. courts who claim that “emerging international law” is binding upon the United States? At the very least, they need to encourage public officials to reject the ideologically driven work of the committees and seek to silence these apparatchiks from pushing their anti-family and anti-marriage mischief. Any credence Americans give to U.N. committees only contributes to the argument that the United States is bound thereby to their recommendations. In doing so, concerned Americans should heed Professor Glendon’s insights:
The Declaration’s ability to weather the turbulence ahead has been compromised by the practice of reading its integrated articles as a string of essentially separate guarantees. Nations and interest groups continue to use selected provisions as weapons or shields, wrenching them out of context and ignoring the rest. . . . Forgetfulness, neglect, and opportunism have thus obscured the Declaration’s message that rights have conditions—that everyone’s rights are importantly dependent on respect for the rights of others, on the rule of law, and on a healthy civil society.
The day when the American political class recovers that understanding seems far off. Until that day arrives, the United States should not only refrain from ratifying any additional human rights treaties but also reject the U.N. committee interpretations of both ratified and non-ratified treaties.
Mr. Saunders, prior to his appointment last year as senior vice president for legal affairs of Americans United for Life in Washington, D.C., served for nearly a decade as a senior fellow at the Family Research Council. He is a graduate of Harvard Law School.