Somalia Ratifies Children’s Rights Treaty, U.S. and South Sudan Remaining Holdouts

Health Letter, March 2015

By Sammy Almashat, M.D., M.P.H.

On Jan. 20, Somalia became the latest country to ratify the United Nations’ Convention on the Rights of the Child (CRC), a comprehensive global children’s rights treaty.[1] According to the United Nations, the CRC is the most widely ratified treaty in history, with 195 countries committed to implementing its provisions for protecting children’s rights.

With Somalia’s ratification, the United States now remains one of only two countries in the world that have refused to ratify the treaty — the other being South Sudan, which became a country less than four years ago.[2]

The U.S. signed the treaty in 1995 under former President Bill Clinton, but the Senate has never ratified it.[3] On first glance, it may seem odd that Washington cannot reach a consensus on a treaty that simply enshrines universal rights for children.

However, a closer look at the political, social and economic rights guaranteed under the CRC makes it clear that ratifying the treaty would immediately place the U.S. in breach of its obligations as a contracting party. Two such CRC rights at odds with existing U.S. law are the right to health care and the right to freedom from exploitative and hazardous child labor.

Lack of universal health care

Article 24 of the CRC is unambiguous on the right of children to universal health care access:[4]

States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

The tragic reality is that millions of children in the U.S. are uninsured. In this respect, the U.S. stands virtually alone among industrialized countries, which have overwhelmingly adopted universal health insurance programs for their citizens.

The 2010 Affordable Care Act did little to alleviate this problem, with the percentage of uninsured children dropping only slightly from 9 percent of all children (6.6 million) in 2012[5] to just over 7 percent (5.4 million) by mid-2014.[6]

One important reason for this small effect is that the Affordable Care Act excludes all undocumented immigrants.[7] An estimated 1 million U.S. children are undocumented,[8] and millions more are children of undocumented parents, many of whom are reluctant to seek out care for their children for fear of deportation.[9]

According to a 2009 Johns Hopkins University study, 17,000 U.S. children may have died over the previous two decades due, at least in part, to a lack of insurance.[10]

Millions more U.S. children are covered by inadequate insurance plans. Over a third of all children in the U.S., including over half of all Hispanic and black children, are insured through either Medicaid or the Children’s Health Insurance Program (CHIP), government-based “safety net” health insurance programs for the poor.[11]

But Medicaid is woefully underfunded, with one in five pediatricians refusing to accept new Medicaid patients, likely due to relatively low reimbursement rates.[12] CHIP, the program for families ineligible for Medicaid but too poor to afford private insurance, covers fewer necessary health services than Medicaid. And 30 states require CHIP recipients to pay premiums; 27 require copays.[13]

For low- and middle-income families with private insurance, the only affordable plans usually come with spotty coverage, denial of care, and high copays and premiums that often result in the same dismal outcomes for their children as for their uninsured counterparts.

Child labor

Article 32 of the CRC clearly prohibits hazardous child labor in all its forms:[14]

States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.

In 1938, the U.S. passed the Fair Labor Standards Act (FLSA), which barred the employment of children under 16 years of age from most forms of labor.[15] However, an exception was carved out for agricultural work, with child farmworkers excluded from any of the law’s protections. In 1974, some restrictions were placed on agricultural child labor, but these were minimal. Children of all ages could work on small and family-owned farms, while children 12 and older could work on larger farms, outside of school hours. Parental consent was required only for those under 14 years of age.

In 1938, the FLSA exception may have made sense, as most farms in the post-Depression era were small, family-owned establishments. But the loophole was retained even as the bulk of the American agricultural industry transitioned from family to industrial-scale “factory” farms, the latter employing hundreds or thousands of laborers.

Modern-day agricultural work is the most dangerous occupation for children in the U.S., with fatality rates for some child farmworkers more than four times higher than that for children in other industries.[16] Exposure to extreme temperatures, heavy machinery, and pesticide and nicotine residues on crops are just some of the myriad dangers child farmworkers must face on a daily basis (aside from the inevitable emotional and mental toll of being forced to work at such a young age).[17] Yet children 16 years of age and older can perform any hazardous job in agriculture, while those under 16 are prohibited from only some hazardous tasks.[18]

In 2012, the U.S. Department of Labor tried to expand the list of hazardous tasks on nonfamily farms that would be off-limits to children under 16.[19] However, President Barack Obama caved to corporate agribusiness interests and abruptly pulled the proposed rules, with a Department of Labor statement announcing that they would not be pursued again for the duration of his administration.[20]

No right to health for America’s children

The World Health Organization notes that a universal “right to health” is enshrined in numerous international treaties, and that “governments must generate conditions in which everyone can be as healthy as possible.”[21]

As a result of the U.S. government’s non-adherence to this principle, the mental and physical health and safety of millions of American children, particularly minorities[22] and those from undocumented families,[23],[24]is severely compromised. Many more children will be maimed on commercial farms, while others will die simply because they were unlucky enough to be born to parents unable to afford the most basic health care.

Ratification of the CRC probably would not prompt an immediate change in the policies responsible for these gross injustices, as the U.S. routinely ratifies global treaties on the (unconstitutional) condition that they will not override U.S. law.[26] But it would at the very least give children’s rights advocates, both here and abroad, a legal basis for holding the government accountable for its unwillingness to provide the most basic rights to children.


References

[1] United Nations News Centre. UN lauds Somalia as country ratifies landmark children’s rights treaty. January 20, 2015. http://www.un.org/apps/news/story.asp?NewsID=49845#.VMgGe2jF9Bk. Accessed January 27, 2015.

[2] Gettleman J. After years of struggle, South Sudan becomes a new nation. New York Times. July 9, 2011. http://www.nytimes.com/2011/07/10/world/africa/10sudan.html. Accessed January 27, 2015.

[3] Why won’t America ratify the UN convention on children’s rights? The Economist. October 6, 2013. http://www.economist.com/blogs/economist-explains/2013/10/economist-explains-2. Accessed January 27, 2015.

[4] United Nations. Convention on the Rights of the Child. http://www.ohchr.org/en/professionalinterest/pages/crc.aspx. Accessed January 27, 2015.

[5] McCanne D. Physicians for a National Health Program. New census data on the uninsured — still 48 million. September 17, 2013. http://pnhp.org/blog/2013/09/17/new-census-data-on-the-uninsured-still-48-million/. Accessed January 28, 2015.

[6] Kenney G, et al. A first look at children’s health insurance coverage under the ACA in 2014. Urban Institute. September 9, 2014. http://hrms.urban.org/briefs/Childrens-Health-Insurance-Coverage-under-the-ACA-in-2014.html. Accessed January 28, 2015.

[7] Wallace S, et al. Undocumented and uninsured. The Commonwealth Fund. August 2013. http://www.commonwealthfund.org/~/media/Files/Publications/Fund%20Report/2013/Aug/1699_Wallace_undocumented_uninsured_barriers_immigrants_v2.pdf. Accessed January 28, 2015.

[8] American Psychological Association. Undocumented Americans. “How many undocumented children and youth live in America?” http://www.apa.org/topics/immigration/undocumented-video.aspx#i. Accessed January 28, 2015.

[9] Wallace S, et al. Undocumented and uninsured. The Commonwealth Fund. August 2013. http://www.commonwealthfund.org/~/media/Files/Publications/Fund%20Report/2013/Aug/1699_Wallace_undocumented_uninsured_barriers_immigrants_v2.pdf. Accessed January 28, 2015.

[10] Johns Hopkins Children’s Center. Lack of insurance may have figured in nearly 17,000 childhood deaths, study shows. October 29, 2009. http://www.hopkinschildrens.org/lack-of-insurance-may-have-figured-in-nearly-17000-childhood-deaths.aspx. Accessed January 28, 2015. [A broader study by Harvard University, co-authored by Physicians for a National Health Program founders Steffie Woolhandler and David Himmelstein, estimated that 48,000 American adults died in 2011 alone because they were uninsured. See: Physicians for a National Health Program. Despite slight drop in uninsured, last year’s figure points to 48,000 preventable deaths: health expert. September 12, 2012.] http://www.pnhp.org/news/2012/september/despite-slight-drop-in-uninsured-last-year%E2%80%99s-figure-points-to-48000-preventable-. Accessed January 28, 2015.]

[11] Kaiser Family Foundation. Children’s health coverage: Medicaid, CHIP and the ACA. March 26, 2014. http://kff.org/health-reform/issue-brief/childrens-health-coverage-medicaid-chip-and-the-aca/. Accessed January 28, 2015.

[12] Decker SL. Two-thirds of primary care physicians accepted new Medicaid patients in 2011-12: a baseline to measure future acceptance rates. Health Aff (Millwood). 2013;32(7):1183-1187.

[13] Kaiser Family Foundation. Children’s health coverage: Medicaid, CHIP and the ACA. March 26, 2014. http://kff.org/health-reform/issue-brief/childrens-health-coverage-medicaid-chip-and-the-aca/. Accessed January 28, 2015.

[14] United Nations. Convention on the Rights of the Child. http://www.ohchr.org/en/professionalinterest/pages/crc.aspx. Accessed January 27, 2015.

[15] Human Rights Watch. Fields of Peril. May 2010. https://www.hrw.org/sites/default/files/reports/crd0510webwcover_1.pdf. Accessed January 28, 2015.

[16] Human Rights Watch. Fields of Peril. May 2010. https://www.hrw.org/sites/default/files/reports/crd0510webwcover_1.pdf. Accessed January 28, 2015.

[17] Human Rights Watch. Fields of Peril. May 2010. https://www.hrw.org/sites/default/files/reports/crd0510webwcover_1.pdf. Accessed January 28, 2015.

[18] U.S. Department of Labor. Fact Sheet #40: Federal Youth Employment Laws in Farm Jobs. http://www.dol.gov/whd/regs/compliance/whdfs40.pdf. Accessed February 6, 2015.

[19] Human Rights Watch. Press Release: US: Labor Department Abandons Child Farmworkers. April 27, 2012. http://www.hrw.org/news/2012/04/27/us-labor-department-abandons-child-farmworkers. Accessed January 28, 2015.

[20] Department of Labor. Labor Department statement on withdrawal of proposed rule dealing with children who work in agricultural vocations. April 26, 2012. http://www.dol.gov/opa/media/press/whd/WHD20120826.htm. Accessed January 28, 2015.

[21] World Health Organization. Fact sheet N°323. Reviewed November 2013. http://www.who.int/mediacentre/factsheets/fs323/en/. Accessed February 6, 2015.

[22] U.S. Department of Commerce. United States Census Bureau. Health Insurance in the United States: 2013. Issued September 2014. https://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-250.pdf. Accessed February 12, 2015.

[23] Human Rights Watch. Fields of Peril. May 2010. https://www.hrw.org/sites/default/files/reports/crd0510webwcover_1.pdf. Accessed January 28, 2015.

[24] Wallace S, et al. Undocumented and uninsured. The Commonwealth Fund. August 2013. http://www.commonwealthfund.org/~/media/Files/Publications/Fund%20Report/2013/Aug/1699_Wallace_undocumented_uninsured_barriers_immigrants_v2.pdf. Accessed January 28, 2015.

[25] Article VI of the U.S. Constitution. http://www.law.cornell.edu/constitution/articlevi. Accessed January 28, 2015.

[26] Why won’t America ratify the UN convention on children’s rights? The Economist. October 6, 2013. http://www.economist.com/blogs/economist-explains/2013/10/economist-explains-2. Accessed January 27, 2015.