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The UN’s Original Lesson Plan for Families
by William L. Saunders
Forces within and without the United Nations are trying to undermine the family using international “human rights law.” Sometimes they use ambiguous wording in UN documents (such as “various forms of the family”) to argue that international human rights law recognizes (that is, legitimates) novel family forms. Sometimes they rely upon “principles” of international law to undermine the role of the parents as the primary educator of the child.
These arguments cannot be ignored. American courts recognize the authority of international law (though there are serious legal disagreements about the scope of that authority). Judges who (wrongly) take the “legislative” role in disputed social issues may accept these arguments about international law as reasons to change American law.
Nevertheless, the claims are baseless. International human rights law, however broadly construed, supports rather than undermines the conception of the family and of the parental role in education that Christianity and the other major world religions have always recognized.
Before the State
Let us look at what international law actually says. As we will see, international law (1) affirms the role of parents as primary educator of their children, and (2) clearly affirms the traditional conception of the family, leaving no room to argue that “ambiguous” language in later documents effectively advances novel family forms.
The starting point for any examination of international human rights law is the Universal Declaration of Human Rights, issued in 1948. The Declaration called upon governments to respect the human rights of their own citizens. One of the human rights it recognized was that of the family.
Article 16 declares: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” It recognizes the fact, often overlooked by governments and international organizations, that the family exists prior to the state, is the foundation of the state, and that the state is obligated to protect it.
Article 16 goes further. It recognizes the right of a man and woman to marry and to found a family. In other words, it recognizes that the family is founded (always in theory, if sometimes imperfectly in practice) upon marriage.
Article 26 also recognizes the traditional understanding of the parents’ role in education (more on that below).
Thus, fundamental human rights doctrine supports the traditional natural family and the traditional role of parents as educators. However, those who would undermine the family and parents-as-educators counter that the Declaration is not binding law and that the “mere” principles in the Declaration must give way to the precise legal standards of the treaties devised to put its principles into legal obligation .
So let us look at the treaties. There are three primary treaties: the International Covenant of Economic, Social and Cultural Rights (what I shall call the “ESC Covenant”), approved by the UN General Assembly in 1966 and entered into force (i.e., became legally binding upon the signatories) in 1976; the International Covenant on Civil and Political Rights (the “Civil & Political Covenant”), approved by the General Assembly and entered into force in 1976; and the Convention on the Rights of the Child (the “Child Convention”), approved by the General Assembly in 1989 and entered into force the next year.
The United States has ratified only the Civil & Political Covenant, and that was done in a way calculated to avoid directly changing US law. However, very significantly, liberal commentators and jurists sometimes argue that the provisions of all three treaties have passed into customary international law, and thereby bind the United States.
The ESC Covenant echoes the Declaration’s provisions. Article 10 enacts the principles of the Declaration’s Article 16, requiring each state to accord “the widest possible protection and assistance . . . to the family, which is the natural and fundamental group unit of society.” Part of Article 13 says that the states that have agreed to the 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.
Another part affirms “the liberty of individuals and bodies to establish and direct educational institutions.”
This is a highly significant provision. The ESC Covenant clearly affirms the primal right of parents to direct the education of their own children. This is in recognition that it is the parents, not the state, who have primary responsibility for the child.
The second of the treaties, the Civil & Political Covenant, recognizes the primacy of the family in the life of society and as the foundation of the state. Article 23 repeats, nearly verbatim, the provisions we have discussed from the Declaration and the ESC Covenant.
The third treaty, the Child Convention, has been ratified by every nation of the world except Somalia and the United States. While I am certainly not arguing that the United States should ratify it, a close review of its provisions discloses that it, too, supports the traditional natural family.
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. Articles 3 and 5 emphasize that the parents are primarily responsible for the well being of the child, and that it is the state’s role to assist them in the fulfillment of those responsibilities.
Article 3(2) notes: “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents . . . and, to this end, shall take all appropriate legislative and administrative measures.” This clearly establishes the correct priority: parents first, the state as an aid, where needed.
Article 5 makes the point clear beyond argument: “States Parties 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].” Thus, the state does not, unless necessity dictates, substitute for the parents.
The Civil & Political Covenant and the Child Convention also affirm the traditional role played by parents in the education of their children, as we will see below.
Responding to Nazis
Since 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, the framers of the Universal Declaration believed the maintenance of such freedoms was at the heart of their project to secure peace and justice after WWII. We are not surprised to learn that after World War II, the world would value freedom of conscience and freedom of the press.
But were the human-rights lessons of the Second World War relevant for education? In her book about the Universal Declaration, A World Made New, Mary Ann Glendon makes a crucial, and often forgotten, point about Article 26: The drafting committee
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. . . . [A]fter [having] 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 by the framers of the Declaration from the experience of the Second World War was that parental choice in education is an indispensable plank of international peace and security. This is a crucial lesson to keep in mind, particularly in the West, where a state monopoly over education is often asserted, and “religious” values and viewpoints are sometimes denigrated, in favor of (militant) secularism.
Indeed, Article 26 of the Declaration recognizes that “[p]arents have a prior right to choose the kind of education that shall be given to their children,” over the designs of the state. Since, per Article 16, the state is obligated to protect the family, if it presumes to usurp the rights of parents to choose the education of their own children, it violates its own obligations and undermines its own foundation.
As we saw above, the ESC Covenant has extensive provisions to this effect. Similarly, Article 18 of the Civil & Political Covenant is concerned with “freedom of thought, conscience and religion.” It contains an important provision concerned with education: “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 Child Convention also speaks to this. While it may be appropriate for the state to establish a statewide education system, it may not deprive the parents of the right, should they deem the state system to be deficient, to educate their children in non-state schools. Accordingly, Article 29 affirms the “liberty of individuals and bodies to establish and direct educational institutions.”
Still, proponents of the modern position of state (secular) control of education would surely push out parental control if they could. But they cannot.
The international human rights documents emphasize the fundamental truth that the family is the foundation of society, and that it is the state that serves the family, not the other way around. The documents also emphasize that it is the parents who have the right to decide what education is best for their child, not the state.
“Progressives” often assert that “human rights law” renders traditional views obsolete, if not illegal, but the proponents of the traditional view have the upper hand. Those who support the natural family and traditional parental roles in education should not be reluctant to engage their opponents in the struggle over “human rights.” For in that struggle, it is our opponents who are on slippery ground.
The International Covenant of Economic, Social and Cultural Rights can be found at www.unhchr.ch/html/menu3/b/a_cescr.htm; the Convention on the Rights of the Child at www.unicef.org/crc/fulltext.htm; and the International Covenant on Civil and Political Rights at www.unhchr.ch/html/menu3/b/a_ccpr.htm.
The papers from the Doha Conference can be found at www.dicf.org.qa/english/documents/papers/index.html.
William L. Saunders serves as senior fellow and director of the Center for Human Life & Bioethics at the Family Research Council. A graduate of the Harvard Law School, he was recently profiled in that law school's inaugural Guide to Conservative/Libertarian Law.