Even Eugene Volokh Can’t Stop the Children’s Convention

Eugene Volokh has this post on the merits of the UN Convention on the Rights of the Child.  He’s against it.  Volokh highlights several operative provisions that he finds objectionable on policy grounds, and argues that we shouldn’t sign on to treaties that we don’t intend to comply with.

What’s striking about the post is the exceptionalist premise that US isolation with respect to the treaty is basically irrelevant, and that the US can opt out on an indefinite basis.  Famously, the US is alone with non-functioning Somalia in failing to ratify the Convention.  Is that a sustainable position?

I don’t think so, at least not over the long run.  First, joining the Convention makes sense in a conventional national interests analysis.  America’s failure to join will cost it more than signing on.  There is already a drumbeat on the subject: US nonparticipation is a boilerplate punchline among international actors critiquing US human rights practice.  That doesn’t present a direct harm to US national security (in, say, the way that Guantanamo has), but it nibbles away at the national interest.  Given the small cost of participation (especially as conditioned by some reasonable package of reservations and understandings), ratifying the treaty looks the preferred, rational choice.

But even if we don’t sign on, the convention’s substantive terms will insinuate themselves into US practice.  Eugene assumes that the US can say no to the CRC, that America can insulate itself from universal international practice (to anticipate Ken’s objection here, universal at some core discursive level even if many other countries have attached significant reservations to their ratification).  I don’t think so.  There are too many entry points for international law, including through state governments, nonstate actors, and the courts.

Take the CRC provision barring life sentences for juvenile offenders, among those which Eugene finds objectionable.  I’d be willing to make a small bet that within the next 20-25 years that practice is halted in the US, whether or not we formally join the CRC.  It might be the courts that put a stop to it, a la Roper.  It might be state governments that come around on their own, in the face of ramped-up international static.  Nonstate actors (including academics) will be a part of the picture.  In any event, the international norm will be a driver.  That is, the fact that international law has moved to ban the practice will be consequential, policy aspects of the question aside.  That’s something that international law skeptics have trouble understanding: the material power of international law.

UPDATE: Prof. Volokh responds here.  I should emphasize that the above observations are descriptive.  I assume nonjudicial and extrainstitutional channels for the imposition of IL through which the US can be made to pay for nonconformity.   Eugene understands that

rejectionism may sometimes be too costly. If we have something serious and likely to gain from accepting a particular treaty, we should be open to that benefit. But we should recognize that there’s always a cost, even of a treaty whose terms are by themselves unobjectionable: the risk that endorsing such treaties (and especially “human rights” treaties) will promote a legal culture supporting the erosion of American legal principles that go against “international practice.”

I see the point, but this doesn’t take disaggregation and the material costs of nonconformity into account as facilitating the insinuation of IL.  If, for instance, a state of the US perceives a risk of losing foreign investment as a result of a human rights-violating practice, at some point it will cave, whether or not the retreat results in the further erosion of “American legal principles” (which of course are themselves becoming less distinctive in the face of increasingly globalized legal culture).  There will be multiple decisionmakers through whom IL is insinuated, contrary to Volokhs apparent assumptions that there is a single channel through which acceptance or rejection of IL will occur and that ideology will weigh heavily in the balance.

At the same time, US actors are hugely influential in the making of international law.  If some don’t think that states should have an obligation to ban hate speech, for example, they can fight it the entrenchment of the norm (or try to win acceptance of some sort of margin of appreciation tolerating a diversity of practice).  They might win.  But they might not, the same way that they lost with respect to the execution of juvenile offenders.  At some level, I’m arguing that categorical resistance is futile and that broad rejectionism is no longer an option.