The Rights Of The Child

They are protected better under international law than they are by US statutes, says Law's Fox

By Sean Smith
Staff Writer

When it comes to protecting children's rights, says Prof. Sanford Fox (Law), the American legal profession is a critical ally. The American legal system, however, is another matter.

In a forthcoming article for Family Law Quarterly , Fox suggests that children's advocates look to international law as a resource in addressing children's rights issues. While US law is by no means completely ineffective, he said, international law has gone farther in establishing quality-of-life standards for children, with the advent of such measures as the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

At a time when welfare reform and other initiatives are having serious repercussions for children and their families, Fox says advocates need to better understand, utilize and help strengthen international law's role in ensuring protection for children's health, social, educational and economic rights.

"American lawyers know very little about international law in general, and especially in the areas of human rights and laws protecting children," Fox said. "If we could mobilize the bar to pursue these international remedies, American children would be better off. This is relevant for all lawyers, whether they are just starting out or have been in the profession for many years."

The article, "Beyond the American Legal System for the Protection of Children's Rights," is the most recent example of Fox's long-standing commitment to children's rights. He is an advisor to Defense for Children International, a Switzerland-based organization promoting children's rights worldwide, and founder of its US branch. He also chaired the drafting committee of the American Bar Association work group appointed to make recommendations concerning American ratification of the 1989 UN Convention on the Rights of the Child. This precedent-setting treaty represents the promise of international law as a guarantor of children's rights, Fox said, with its condemnation of child abuse, child labor and the use of children as soldiers.
Prof. Sanford Fox (Law)-"Children's rights are often portrayed as surpassing parents' rights, driving a wedge into families. It does not have to be that way at all." (Photo by Gary Gilbert)

The United States' response to this treaty - it and Somalia are the only two countries which have yet to ratify the document - reflects its short-sighted and ill-conceived perception of children's rights in general, Fox said.

"Children's rights are often portrayed as surpassing parent's rights, driving a wedge into families," Fox explained. "It does not have to be that way at all. Under the treaty, a government simply agrees to do everything within its power to create the best possible environment for a child. The government identifies where changes are to be made, and must show progress in those areas.

"The convention, in fact, recognizes that governments must respect the right of parents to raise their children," he said. "It does not mean a government must put a social worker in every home."

Understanding the dimensions of the UN convention and other aspects of international law is only part of the challenge for American child advocates, Fox said. Lawyers must work to exploit these opportunities by litigating children's rights claims before the Inter-American Commission on Human Rights, for example, or by using international norms to influence the American legal interpretation of statutes and constitutional provisions related to children's rights.

In particular, advocates should demand federal action to guarantee children's rights, Fox said, and the US's ratification of the International Covenant on Civil and Political Rights offers a possible route. A provision of the ICCPR states that the document "shall extend to all parts of federal states without any limitations or expectations," he said, and thus puts some impetus on the federal government to bring state and local laws in compliance with the covenant.

For example, Fox said, using the ICCPR advocates might request the Department of Health and Human Services act to remedy a state's failure to provide protection from abuse, or the Department of Housing and Urban Development respond to a state's inability to ensure a minimum level of housing for children.

"Advocates need not only look at this in terms of representing individual children," Fox said. "They might provide consultations to non-government organizations, which have the ear of both UN bodies and treaty-based monitoring committees. But these approaches need to be coordinated if they are to be effective, and this is a task for law school clinics, state bar associations and other such groups."

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