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

by Peter Spiro

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.

http://opiniojuris.org/2009/08/06/even-eugene-volokh-cant-stop-the-childrens-convention/

9 Responses

  1. As much as I disagree with prof. Volokh’s substantive criticisms (all of them, if I remember correctly), this criticism I don’t get. The key point about international law, which we always try to emphasise to the Glenn Beck watching conservative types in the blogosphere, is that it is legitimate because every state can democratically (or not) decide what treaties and CIL rules to sign up to. And that’s a good thing. It is the basis of the whole building.

    Even in the EU, where exceptions are more inefficient than elsewhere in international law, Member States opt out of Treaty provisions they don’t like. The Brits, the Danes and the Swedes didn’t want the Euro, fair enough. The Brits don’t want Schengen, fair enough. Since Amsterdam, there are even special Treaty rules for enhanced cooperation, to codify and streamline the practice in this area. As much as we would like Britain to be more fully part of the European project, we would never deny their right to be exceptionalists.

  2. Well, I’ll take a different jab at Mr. Spiro’s article, which is his contention that:

    But even if we don’t sign on, the convention’s substantive terms will insinuate themselves into US practice.

    There are so many counter-examples I don’t know where to begin.  The treaties banning Cluster Bombs and Land Mines would be good places to start.  Norway and Japan’s exceptions to the whaling treaties would also be good examples.

    If anything, history seems to be that a country that doesn’t sign on to a widely-ratified treaty will never hold those values.  US legal movement away from the death penalty has little to do with actual shifts in perception and a fair amount to do with imposition via legal fiat.

    As to Mr. Holterman’s viewpoint that “…is that it is legitimate because every state can democratically (or not) decide what treaties and CIL rules to sign up to.” I think you’ll find support for this concept is notably lacking amongst most IL advocates, especially regarding CIL.

  3. I promised Eugene I’d put up my own post on this rather than simply adding to the comments – it’ll take me a few days to get back to it, but I’ll cross post here and VC.

  4. I was unsurprised to read Eugene Volokh’s post opposing US ratification of the UN Rights of the Child Convention or some of the more abysmal comments in support.  I suppose there will always be those who wish to see juveniles hung for stealing a sheep, or birched for petty misdemeanours, or sentenced to lengthy terms in “reformatories” (aka <i>”the Universities of Crime”</i>). 

    Even though they are a dying breed, there are still some blue-rinsed Tory matrons in the UK who hold similar views – provided it is clearly understood that nothing of the sort should ever happen to their beloved grandchildren ( Justin and Penelope). 

    But I think Peter Spiro may be mistaken about how quickly the USA might catch up with the rest of the civilised world.  After all, how much later was slavery abolished in the USA than in the UK.  On that time-scale, it might take a good few years yet before capital punishment is finally abolished and perhaps the USA might be ready to deal properly with its juveniles in, say, 2250 or thereabouts.

    Just as the general savagery of the US criminal justice system is sparking calls for EU countries to revisit their extradition treaties with the USA, continued failure to ratify the Convention may have an impact not only on extradition but also on matters like cross-border child custody disputes.

  5. I apologize if these responses have lost their timeliness, but I wanted to comment in particular on remarks made by Martin Holterman, in particular:

    quote: The key point about international law, which we always try to emphasise to the Glenn Beck watching conservative types in the blogosphere, is that it is legitimate because every state can democratically (or not) decide what treaties and CIL rules to sign up to. And that’s a good thing. It is the basis of the whole building.

    Sorry, Martin, but isn’t the whole point of the original essay, in response to which you commented, that it DOESN’T MATTER whether or not the U.S. or any other country signs on to the Convention, or any other treaty, but that the universal principles – remember, the key word is `universal’ – will somehow be adopted into American jurisprudence? 

    I don’t see how this squares with the assertion that any signatory to a treaty can, if you will, `take or leave’ any provision of any treaty or convention?

    Perhaps you should be in dialogue with the writer of this post before you attempt to engage nebulous `watchers of Glenn Beck in the blogosphere’ (whatever sense that makes)…

    my second comment is for Mourad of London, who chose not the leave his surname (perhaps understandably, given what follows):

    to quote: I was unsurprised to read Eugene Volokh’s post opposing US ratification of the UN Rights of the Child Convention or some of the more abysmal comments in support.  I suppose there will always be those who wish to see juveniles hung for stealing a sheep, or birched for petty misdemeanours, or sentenced to lengthy terms in “reformatories” (aka <i>”the Universities of Crime”</i>). 
    [end quote]

    I think Prof. Volokh is more than able to defend himself, but I would just point out a number of things.  Namely, to my knowledge, Eugene Volokh has never advocated the death penalty those under the age of 18 for stealing sheep, nor yet for any other reason; I’ll take it that he doesn’t know what kind of punishment is involving in `birching’, and I don’t either, so Prof. Volokh could hardly have been a advocate for it.
    [second quote from M. of London: Even though they are a dying breed, there are still some blue-rinsed Tory matrons in the UK who hold similar views – provided it is clearly understood that nothing of the sort should ever happen to their beloved grandchildren ( Justin and Penelope).]

    I suppose the matter of British penal institutions are best left to the electorate of that fine country, whether they employ a blue-rinse or not.  Just why the latter should disqualify someone from engaging in civil debate, is quite beyond me, and perhaps Mourad has an explanation for that.  

    I have read, though, that rates of crime in some areas of the urban U.K. have approached levels witnessed only in the United States before the early 1990s.

    Which is to say, before `three strikes and you’re out’ and all the other `savage’ measures that were introduced, and that – by sheer coincidence and nothing else (according to the `experts’) – saw massive declines in violent crime throughout the United States.
    [quote: But I think Peter Spiro may be mistaken about how quickly the USA might catch up with the rest of the civilised world.  After all, how much later was slavery abolished in the USA than in the UK.  On that time-scale, it might take a good few years yet before capital punishment is finally abolished and perhaps the USA might be ready to deal properly with its juveniles in, say, 2250 or thereabouts.]

    I’m only a history minor, but by my understanding, slavery was abolished in the U.S. finally in 1863; in the U.K., 1834, a difference of twenty-nine years.

    Of course, many jurisdictions in the U.S. had already long abolished slavery – notalbly Massachusetts and other New England states, which abolished the `peculiar institution’ in the 18th Century.  Most other northern U.S. states abolished slavery prior to 1834.  So, Mourad, wasn’t it the U.K. that was finally catching up to the `civilized’ U.S. when it finally abolished slavery?
     
    In general, comments of not very high calibre, at least for a legal-opinon blog.

    thanks

  6. R.S. Glennie’s “history minor” must have pretty minor if he is unaware that slavery was declared unlawful in England by the decision of Lord Mansfield in the case of  R. v. Knowles, ex parte Somersett decided in 1772.  Therefore with slavery abolished in the USA in 1863 the time lag was 91 rather than 29 years.

    Likewise, the last execution in England took place in 1964 so on a linear basis one might expect to see the last US execution 91 years later – in or about 2055. 

    Naturally, I would be only too delighted were the abolition of capital punishment to take place sooner.

    The point I seek to make, however artlessly, is that there does seem to be a pattern of the USA lagging behind on many human rights norms.

  7. @ Mourad

    Our London’s friend’s minor understanding of history is showing through.  This is very sad given that he apparently is from / lives in the country in question.

    The 1772 ruling did not of course abolish slavery.  It paved the way for the *eventual* abolition, which occurred only in 1834.
    As I said, many American jurisdictions had already banned slavery long before 1834.  And of course, this didn’t really abolish slavery: most were turned into a `apprentices’, free in name only.

    So: no lag.

    Mourad: fail.

    moving on…

    *The point I seek to make, however artlessly, is that there does seem to be a pattern of the USA lagging behind on many human rights norms.*

    It was indeed artless. 

    But prithee, just what are these vaunted `human rights norms’ that you speak of?  The `norm’ of having Jewish delegates to a so-called anti-racism conference presented with holocaust denial books for sale?  that’s what happened at the conference in Durban in 2001, and for which the organizer, this very day, is about to receive the presidential medal of freedom?

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  1. […] Original post:  Opinio Juris » Blog Archive » Even Eugene Volokh Can't Stop the … […]

  2. […] Prof. Peter Spiro (Opinion Juris) responds to my earlier post, saying (among other things): 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. […]