So It Turns Out US Ratification of the Convention on the Rights of the Child Would Be Pointless

by Julian Ku

Internationalists critical of U.S. “sovereigntism” almost always point out that the U.S. is one of only three states in the world that has not ratified the U.N. Convention on the Rights of the Child (CRC).  Karen Attiah is the latest to take up this old talking point in the Washington Post.

The United States is part of an elite trio of non-ratifiers, along with Somalia, a country that is virtually in anarchy and consistently appears in the lowest ranks of countries in terms of human development, and South Sudan, the world’s newest country, which dealt with a fair share of civil conflict. Back in 2008, Obama said that it was “embarrassing to find ourselves in the company of Somalia, a lawless land.”

Attiah argues that the rest of world seems to be making lots of progress in improving child welfare, presumably because of the CRC, and the U.S. is falling behind. But this argument buries the lede.  Why?

Because even if the U.S. accedes to the CRC, it is almost certainly going to do so without passing new legislation or enacting new programs to live up to the treaty’s obligations. As it has done with other human rights treaties it has ratified, the U.S. will also declare the CRC non-self-executing, which means it cannot be enforced by US courts absent subsequent legislation by Congress or the States.  It is highly unlikely that US law or policy will be affected dramatically by joining the CRC if these limitations are imposed.

Rather, the argument for joining the CRC is usually not about changing US policy, but simply about the need for the US to be a member in order to credibly promote and support CRC rights and the interest of children around the world.  As an analyst from Human Rights Watch notes in the Economist, “It is awkward when the US tries to promote child rights in other countries—they all remind us that they’ve joined the treaty and we have not.”

If the data Attiah cites is accurate, though, US non-ratification isn’t having much of an impact on whatever benefits the CRC is providing.  Of course, it may be the case that US non-ratification is limiting whatever additional benefits US promotion of the CRC as a member would provide, but this seems unlikely.

Of course, if the CRC is unlikely to change US law or policy, why should anyone oppose it? This is indeed a mystery. The best case I can come up with is that CRC opponents do not trust the Congress, the President, or the courts to honor the non-self-executing pledge that the US has imposed on all other human rights treaties.  This is not totally unreasonable since some leading scholars have questioned the non-self-execution doctrine in this case.   But US courts have not yet shown any interest in forcing human rights treaties into US law against the wishes of the president and Senate, so this fear is somewhat overstated at this stage.

In the end of the day, Attiah’s reporting answers her own headline-question.  The US hasn’t ratified the CRC because doing so would not change the status quo much, if at all.  US policies domestically will be basically the same with or without the treaty, and (as Attiah points out) the rest of the world will do just fine whether or not the US joins.  So US ratification will accomplish pretty much nothing, which is as good a reason as any for why it is not going to happen.

http://opiniojuris.org/2014/11/25/turns-us-ratification-convention-rights-child-pointless/

8 Responses

  1. If Obama is so embarrassed about the U.S. being a non-party he can always take the first step and transmit the CRC to the Senate for advice and consent (something he hasn’t managed to do in his six years in office).

  2. This is a flawed logic, if applied generally. Any state in the world wouldn´t find no reason whatsoever to ratify a human rights treaty under those arguments. The main reason a human rights treaty is negotiated and ratified – besides the expected internalization of its norms – is to subject the state also to a supervisory machine settled by the treaty. US “sovereigntism” defies this purpose, and reject this kind of monitoring. Not ratifying the treaty leaves US social policy away from the international inquisitive eyes of the Committee on the Rights of the Child (contrary to the rest of the world, with the exception of South Sudan and Somalia).

  3. Although I largely agree that “[i]t is highly unlikely that US law or policy will be affected dramatically by joining the CRC,” I don’t necessarily agree that US ratification “would be pointless.” This post outlines many important considerations concerning ratification of the CRC, and I agree that “US policies domestically will be basically the same with or without the treaty.” However, I think this post underestimates the importance of a state’s reputation in international law. As Pres. Obama has stated, it is “embarrassing to find ourselves in the company of Somalia, a lawless land.” Being one of only three countries that haven’t ratified the CRC, especially considering that the other two countries are Somalia and South Sudan, is nothing to be brushed over or ignored. (In fact, as Attiah points out, South Sudan is “only three years old, [and] it is actually in the process of ratification, having passed a bill last year to approve the CRC.” This would leave the US and Somalia as the sole non-ratifiers.) Surely there is an effect on the US’s reputation as a result of its failure to ratify the CRC, and it is important to note the Human Rights Watch analyst’s argument that “[i]t is awkward when the US tries to promote child rights in other countries—they all remind us that they’ve joined the treaty and we have not.” Although this is perhaps overstated, I don’t think it can be said that this is a complete non-issue, either. If the US ratified the CRC, its global reputation would improve, which in turn would positively increase its relations with other states. The US undoubtedly wants to be seen as a promoter and supporter of children’s rights worldwide, and non-ratification of the CRC does nothing to help the US in achieving this image.

  4. It is well-documented that the U.S. Declaration of partial non-self-execution re: the ICCPR (partial because it expressly did not apply to Article 50) has been treated as an attempted reservation and that the attempt is void ab initio as a matter of law. Further, Article 50 mandates that ALL of “the provisions” of the ICCPR “shall” [i.e., self-executing] be law in all parts of federated states without any exception whatsoever. Thus, the ICCPR is unavoidably law within all parts of the United States. The Executive explanation with respect to another clause assured that the ICCPR will be implemented by the U.S., either by the feds or the states (and demonstrated why there will be no federal preemption of state legislation or judicial implementation of the ICCPR). Additionally, the text of the U.S. Constitution unavoidably mandates that “ALL” treaties shall be supreme law vis a vis the states (that is, even partially non-self executing treaties are supreme law vis a vis the states) — something that would occur if the U.S. ratifies the Rights of the Child Convention.

  5. Does anybody knows the real reason for not ratifying the treaty? If its ratification wouldn’t change anything, I believe that would be a good reason to ratify it. It will add an extra layer of legitimacy to the US in the international community with no effort in its domestic legal system.

    One simply cannot understand how Obama declared that and here we are six years later still awaiting ratification.

  6. The reason why the treaty hasn’t been ratified may simply come down to the fact that the U.S. may be wary of binding itself to any treaty when it need not do so. This is not the only time the U.S. seems to stand alone as one of the world powers who isn’t a party to a widely ratified treaty, the Vienna Convention and the Rome Statute come to mind. The whole “self-executing” business comes from the idea that an international treaty is not binding on U.S. domestic law unless either Congress has enacted statutes to implement it or it is self-executing. I’m no expert, but how I understood it was that if a treaty sets forth the actual obligations and means then it’s considered self-executing, and if it would require further guidance from congress to pass laws to enforce the treaty, it’s not self-executing.

    That doesn’t mean that congress couldn’t benefit from ratifying the treaty. Why they haven’t is anyone’s guess… perhaps it’s seen as a low priority, the regular scuffles of politics take over, and so on. Ratification might look better for the U.S. in the international arena, and furthermore, having the U.S. as a party to a treaty in itself carries weight that shouldn’t be underestimated. It may behoove congress to consider that the impact of treaties can sometimes extend decades (or longer) into the future, and not merely focus on what seems to have no impact domestically now.

  7. In my view, this is the unfortunate consequence of separating IL, such as the recent dodge in US v. Bond. The CWC (and BWC) are also politically uncomfortable, and duplicate other laws at the Local and State levels.

  8. To Mariano – the reason is politics and demagogery. That, combined with the Constitution’s 2/3 of the Senate threshhold for ratification, one of the most difficult ratification requirements of any state. (Oona Hathaway has written well about this.) Look up the pledge that 31 Republican senators signed in August 2010, to vote against ratification of the CRC if it came to the Senate, proving the virtual impossibility of ratification.
    http://www.cbsnews.com/news/31-gop-senators-oppose-un-childrens-rights-convention/

    Some Google research will show their cited reasons but they are widespread, demonstrably false claims and misconceptions about the treaty and the CRC Committee, eg that the CRC will interfere with parents raising their children or home-schooling or religious education and the like.

    Examples:
    http://www.nocrc.org/
    http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC=%7B55EE90CC-F282-48CF-A7BD-C326F6524FCC%7D

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