Sunday, February 8, 2015

The "Rights of the Child" Constitution and the Constitution of the British Royal Family

In this post, I would like to look at some issues in the news with regard to the allegations that Prince Andrew was involved in sex trafficking and/or involved in preventing its prosecution in the United States.

The legal issues in this case affect shared earning / shared parenting families because they relate to efforts to remove discrimination against these families in taxation and benefits.  In the UK and the US all laws must follow the constitution, so if the constitution discriminates against shared earning / shared parent families, all laws will as well. 

Until paternity became provable, it was difficult for legal systems to regard a child as the responsibility of both parents, much less the equal responsibility of both parents.  In recent years, not only has paternity become provable, it has become inexpensively provable, literally something that can be done at the corner drugstore, at a cost that is expected to below $100 by the end of the decade.

As noted elsewhere in this blog, however, the British and US systems of "constitution above leader" rather than authoritarian leader who is the source of law, plus the basis of that constitution in "rights and responsibilities of person and citizen" rather than the "rights of man and citizen" of the constitution of France or the "responsibilities of woman" of the constitution of Ireland and some countries in Latin America, seems however, to have implied that such equal responsibility was the ultimate intended foundation of such systems.

What does the Prince Andrew scandal have to do with this?

It has to do with reconciling conflict among several British constitutional documents relating to rights and responsibilities of adults on the basis of sex, as well as to concepts that children have rights, including to have statutory sexual assault and sex trafficking prosecuted. 

The implications of the scandal are broader, however, and may reach the constitutional concept that daughters have equal rights to sons and that both biological parents hold equal responsibility for a child as baseline (with adoptive or single parents able to assume such responsibility with full consent, or both bio parents able to arrange another allocation of responsibility provided that they both remain accountable to the child if any failure to meet the standards occurs).

Here is the basic conflict and its likely resolution, in my view:

A.  The Basic Conflict and Its History and Positioning:

1.  Prince Andrew was placed ahead of his older sister, Princess Anne, in the line of succession on the day he was born pursuant to the 1701 Act of Settlement for no reason but his biological sex and hers.  This law, which is considered part of the group of laws that form the constitution of Britain, establishes male-preference primogeniture

One thing to keep in mind about the legal system in Britain is that it applies to everyone the way it applies to royalty, so male-preference primogeniture for inheriting the position of head of state would affect all daughters' and son's position, with regard to a range of issues, including property law.

The choice to establish male-preference primogeniture was curious as the UK has historically differed from many monarchies on the Continent in including women in the line of succession, both in using cognatic descent (i.e., descent through women as well as men) and in making daughters heirs and thus eligible to be queens regnant.

The Tudor line was based in cognatic descent, through the daughters of the Houses of Lancaster and York, both of which were descendants of John of Gaunt. The reigns of Mary I, Elizabeth I, Mary II (together with William) and Anne all preceded the passage of the 1701 law and some of these reigns, particularly the latter three, were considered very successful times for Britain.  And the House of Hanover, a German house that was used in the 1701 Act, begins with the children of Sophia of Hanover, recognizing cognatic descent.  Also, the fact that paternity was not yet as provable as maternity made descent through the female line established more firmly in law. 

In contrast, on the Continent, Salic law excluded women altogether from the line of succession even though paternity was not provable and even though women were proving very capable leaders in England.  The House of Hanover, as a Germanic house, recognized Salic law, and this may have influenced the decision in 1701 to go with "male-preference" rather than "gender-neutral" primogeniture.

Thus, as of 1701, although the UK included daughters in the line of succession, it put them at the end of the line, behind any sons.  Ironically, it often happened that the sons killed each other off (as in the case of the Lancasters and the Yorks), and the daughters would often end up ruling.

In any event, as the current heir Prince William was about to have his first child, the Commonwealth countries agreed to change the law to "gender-neutral" primogeniture with regard to his children and subsequent generations.  When his son George was born, this meant the change would not have had immediate practical effect, however, and Parliament and the Commonwealth countries have delayed putting the change into law, perhaps because of this lack of immediate practical effect.

2.  Princess Anne has been President, since 1970, of a charity called "Save the Children."  The charity was the originator, earlier in the 20th Century of the concept of a declaration of the "rights of the child". This was later refined by the United Nations into the Convention on the Rights of the Child (the "UN ROC treaty"), which became available for countries to sign in 1990.   All countries and the Vatican have signed it, except the US, Somalia and South Sudan; there may be some good reasons for the US not to have signed it, as I'll discuss below.  The US has signed a protocol to it prohibiting sex-trafficking, however.   "Save The Children" continues to be involved with the treaty, working on its use around the world.  She has been very involved with the treaty and is respected for this.  A recent poll found the public were more interested in funding her than Prince Andrew.  Also, her children are currently not funded and Prince Andrew's are.  More of the public wanted her children brought into funding than wanted Prince Andrew's funded at all.

Princess Anne has also displayed personal integrity in the concept of "constitution above leader" when she did not try to claim any sort of sovereign immunity when she was prosecuted for having an out-of-control dog that bit some children.   In contrast Prince Andrew has been using the monarchy to prevent answering questions, including how he happened to be in a photograph with his arm around one of the underage Jane Does.

3.  The UN ROC treaty, particularly the anti-sex-trafficking protocol, is at issue in the Prince Andrew case in several respects: (a) the international aspect of the trafficking, crossing country lines between the US, Britain and the British Virgin Islands, and involving teenage girls from a variety of countries, including the US, Russia and some other European countries, (b) the fact that countries who sign it agree to prosecute sex-trafficking.  The allegation by the Jane Does in the Jeffrey Epstein case that implicates Prince Andrew is that such prosecution was stifled.

4.  The UN ROC treaty also contains an ancillary protocol similar to the 1628 "Petition of Right", another of the documents that form the British Constitution that then formed the basis of the US Constitution.   This allows for an individual to communicate to the UN that a country is not following the UN ROC treaty's principles.  This protocol, which only became available for signing in the last couple years, has not been signed by either Britain or the US, but it has been signed by a number of other countries.  While it is thus not available to the US-based Jane Does, they could file a pro forma version of it.

5.  The UN ROC treaty, as an international consensus lawmaking, effectively forms an international version of the Constitutions of Clarendon of 1164 (which required clergy to be subject to secular criminal law) and the Magna Carta of 1215 (which required the King to be subject to the law).   Indeed, the UN Convention has been instrumental in the prosecutions of the Vatican and its clergy in a variety of countries for child sexual abuse.   It is also at issue in Pope Francis' condoning (or even advocacy?) of corporal punishment (which is prohibited in the UN ROC treaty).  Until the UN ROC treaty was ratified and John Paul II signed it in 1990, it was nearly impossible for victims to hold the Vatican to any kind of accountability for violation of secular law because of the Vatican's status as an independent state.   Now, the Prince Andrew scandal means the UN Convention could be applied to the monarchy, making Prince Andrew accountable in international law in a way he would not otherwise be.  The lawyers for the Jane Does have curiously not yet cited the UN ROC treaty, even the anti-sex-trafficking protocol that both the US and the UK have signed, and instead are relying on US law and possibly some Hague treaties.  It is true that the individual "Petition of Right" has not been signed by the UK or the US yet, but they could still use it pro forma.  This might also prevent allegations that this case is being tried in the press, rather than through due process.

6.  The UN ROC treaty is not framed in a context of paternity being inexpensively provable.  When the treaty was written, it was not inexpensive to prove.  It therefore needs to be updated to incorporate this information and its implications.

7.  The British parental responsibility law also is not framed in a context of paternity being inexpensively provable.   It provides that all mothers, but only those fathers married to the mother, are responsible for meeting their children's needs as a baseline.  It does provide that paternal responsibility can be asserted by a variety of parties, including the father, but there is not a self-executing right of the child to have his/her biological parents identified at birth with a baseline of their joint and equal responsibility.  The parental responsibility is equal regardless of sex.

8.  The British citizenship law also was not framed in a context of paternity being inexpensively provable, although this changed in 2014.   It had provided that all children of British citizen mothers are citizens and all children of British citizen fathers married to the mother (regardless of her citizenship) are citizens.  Children of British citizen men with women to whom they were not married are not citizens.  This aspect of the law was created in 2006, during Tony Blair's term as Prime Minister, just as he converted to Catholicism.   Since the law was passed, the actor Jude Law fathered children with a US citizen and an Irish citizen, leading to comical interpretations of "Jude's Law" giving men this incentive to father children without responsibility.  In the case of the child of the US citizen mother, a paternity test was ordered and he owes child support but presumably has avoided the personal responsibility he would have faced under the UK parental responsibility law.  London mayor Boris Johnson is also alleged to have fathered two children with women to whom he is not married and for which he and the mother are not following the parental responsibility law.

9.  Australia, a Commonwealth country, is also facing a debate around the issue of paternity becoming inexpensively provable.  There are some who want to make this a self-executing right of each child.  A case of biological parents from Australia abandoning a child conceived with a Thai woman as surrogate, where the Thai woman is now seeking Australian citizenship for the child in order to receive free health care and other benefits for the child, has also brought these issues to the fore.

B.  The Likely Resolution:

1.  Will Princess Anne, and her children and grandchildren, be restored to her correct place in the line of succession ahead of Prince Andrew, his children and grandchildren?  I suspect this will happen for several reasons:

(a) her exemplary work on the international consensus lawmaking of the UN Rights of the Child Treaty, and its astonishing success in forming an international "constitution above leader" being used in the style of the Constitutions of Clarendon against the Vatican, the Magna Carta against Prince Andrew, and the Petition of Right against US authorities who failed to prosecute;

(b) the contrast of her exemplary work with Prince Andrew's admitted involvement with a convicted sex-trafficker, Jeffery Epstein;

(c) the change to gender-neutrality having already been agreed to on a prospective basis, so it seems only fair to recognize it retrospectively with regard to living Royals; and

(d) the public wanting the order put back in the actual birth order, without her disenfranchisement for no reason but her bio sex and Andrew's.

2.  Will the monarchy continue to exist at all?

While some might see Andrew's behavior as the likely end of the monarchy, I think the fact that the treaty was accomplished with Anne's involvement, that the treaty is very necessary and effective, and that male world leaders have not been getting the job done (including the Presidency of George W. Bush and the Governorship of Jeb Bush, both of which are implicated in the alleged failure to prosecute Epstein) means that the British Royal Family still has a role.  The fact that the Pope still exists may also be a reason that the British Royal Family will continue to exist, with cognatic descent and gender-neutral primogeniture, subject to a constitution based in "rights and responsibilities of person and citizen".

One way the Royal Family may elect to keep itself relevant is to have Prince Harry succeed to Princess Anne's work on the UN ROC Treaty, with his focus to be updating it to reflect that paternity is inexpensively provable.

3.  Will the US adopt the UN ROC Treaty?

I think that the US is not likely to adopt this treaty until it is updated to reflect that paternity is inexpensively provable, to recognize dual citizenship based upon dual citizenship parents and dual countries of responsibility.

It may be that the US doesn't adopt the treaty per se, but instead constitutionalizes a basic concept of every child having a self-executing right to have his biological parents identified.  In many places in the US, state law already says what the treaty requires, however, the current Supreme Court is not interpreting equal rights and responsibilities of citizenship (notwithstanding the Constitution's language of "person" not "man" or "woman" and all this history of its development) and this is causing discrimination against shared earning/shared parenting families that regard a child as the equal responsibility of both parents.

Just as in Australia, Scotland and other British Empire-legacy countries, in some parts of the US, actual paternity has long been an ideal that differentiated the US and these political economies from those on the European Continent (and Ireland) and in Latin America which are legacies of the Roman Empire and Spanish Empire.  Also, particularly because the Ottoman Empire legacy is still not reckoning with paternity being inexpensively provable, with Islamic law still overriding this biological evidence, I think this will be a priority of the US as it is in Britain, Australia, Scotland, and perhaps Hong Kong as well.  Hong Kong, also a legacy British Empire country, has a very low fertility rate (below 1.0) for Hong Kong citizens and is struggling with "birther" babies from mainland China taking up spaces in what is the most densely populated place in the world.


What do you think?   Please let us know in the comments.