Author Archive for
Julian Ku

Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.

 

Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal

by Julian Ku

The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea.  It is a little unclear exactly what Vietnam has filed.  According to its Ministry of Foreign Affairs website:

In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.

According to the South China Morning Post, the Vietnamese submission has three points.

1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.

I think this filing has much more political than legal significance.  As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal.  It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.

On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China.  I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course.   The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

by Julian Ku

I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program.  In this post, I want to focus on an interesting data point coming out of this debate.  As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public.  This doesn’t mean that the CIA program was legal.   But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.

I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification.  (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”).  There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view.  This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.

For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law.  The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement.  In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture”  or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture.  Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.

However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view.  FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure.  It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.

Again, I am not claiming that public opinion should determine whether the CIA program was legal.  But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture.   This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program.  And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.

Why the Philippines’ Arbitration Against China is Doomed to Fail

by Julian Ku

Over at The National Interest, I have an essay considering the strategic implications of the Philippines arbitration claim against China.  I argue that the Philippines made a mistake by trying to force China into an arbitration under the UN Convention on the Law of the Sea, and that their “lawfare” strategy is probably going to backfire.

Due in part to domestic pressures for a robust nationalism in defense of all territorial claims, China has not yet reached the point where arbitration seems like a reasonable way to settle its maritime disputes.  And since it has now spent months denouncing the Philippines arbitration as illegal and illegitimate in its domestic press and internationally, it will be even harder to accept any form of international dispute resolution in the future.

This is why the Philippines’ effort to force China to accept arbitration now is doomed to fail and will probably backfire. The Philippines will be in no stronger position vis-à-vis China than it was before the arbitration, even if it wins an award.  Meanwhile, the overall credibility and effectiveness of the UNCLOS dispute resolution system will be called into question.  And the U.S. goal of a China that “abides by and reinforces” international law and norms will be even farther off.

 

Star Wars, Indeed: US Navy Will Deploy Its First (Hopefully Legal) Laser Cannons to Persian Gulf

by Julian Ku

It looks like the US Navy is going to go ahead and start deploying its new laser cannons to the Persian Gulf next year, according to this Washington Post report.  The Navy has been developing this weapon for years as a cheaper alternative to missiles for attacking smaller targets, especially drones (My 2005 self is still kind of amazed at my 2014 self for writing this last sentence in all seriousness and not as part of a science fiction fantasy).  But you have to watch this video…

Is there any legal limitation on this new weapon?  Well, the Navy is planning to limit it to self-defense for now, according to this WSJ($) report.

“We have the authorities right now to use it in self-defense,” Adm. Klunder said. “If someone was coming to harm the USS Ponce, we could use this laser system on that threat and we would intend to do so.”

The U.S. is also party to the Protocol on Blinding Laser Weapons, ratified by the U.S. back in 2008.  The Protocol limits the U.S. Navy’s lasers in this way:

Article 1

It is prohibited to employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices. The High Contracting Parties shall not transfer such weapons to any State or non-State entity.

The scope of this provision is limited by Article 3, which appears to allow blinding via lasers if it is an incidental or collateral effect.

Article 3

Blinding as an incidental or collateral effect of the legitimate military employment of laser systems, including laser systems used against optical equipment, is not covered by the prohibition of this Protocol.

This would seem to give the US Navy enough room to use its laser cannons, which are not intended just to blind, but to actually destroy targets (take a look at that video one more time).  Still, it is possible that blinding would be one of its effects, since it is intended to be used against small targets, including small boat attacks favored by Iran.  Soldiers in these open boats could be “blinded” by a laser attack, and Article 2 requires the U.S. to take all feasible precautions to avoid the incidence of permanent blindness to unenhanced vision.” Still, I think Article 3 is enough cover for the U.S. Navy to justify its use in combat.  And just in case, the U.S. added a declaration upon accession:

“It is the understanding of the United States of America with respect to Article 2 that any decision by any military commander, military personnel, or any other person responsible for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”

Star Wars is here, and no treaty is going to stop it….

 

 

So Ukraine May Sue Russia for Violating Anti-Terrorism Financing Convention

by Julian Ku

Things are not going well for Ukraine these days as Russia has managed to solidify its control over Crimea and is continuing support for breakaway regions in Eastern Ukraine. It is very hard to justify the legality of Russia’s actions, so it is not surprising that Ukraine is looking for any and all international fora to sue Russia.

As usual, the great challenge is to find an international court with jurisdiction. Ukraine has added a bunch of new cases to the already crowded Russia docket of the European Court of Human Rights. But I had been wondering how Ukraine planned to bring Russia to other courts like the International Court of Justice since Russia has not accepted the compulsory jurisdiction of that court.

Well, according to this report, it looks like Russia has accepted the compulsory jurisdiction of ICJ for disputes under the International Convention for the Suppression of the Financing of Terrorism.   Article 24(1) of the Convention states:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Although Russia could have avoided jurisdiction under paragraph 2 (as the United States did), Russia did not do so. So Russia could face an ICJ case, which I imagine it will ignore.  But I am not sure it could brazenly claim the ICJ lacked jurisdiction, so it will be interesting to see whether Russia decides to litigate (and maybe even file counterclaims)?

Is the Kenyatta Case the End for the ICC?

by Julian Ku

I haven’t had time to comment on the collapse of the ICC Kenyatta prosecution last week.  But friend of blog and Northwestern University law professor Eugene Kontorovich has some interesting thoughts over at National Review.  Read the whole thing, but suffice to say, Eugene thinks this is pretty big body blow to the whole idea that the ICC can be an effective institution at deterring international atrocities.  Not that it is exactly shocking that a head of state accused of atrocities would use every lever in his tool box to block his own prosecution.

In his requiem for the ICC, Eugene writes:

The ICC was born of a Whiggish belief that in the 21st century, a shared commitment to law could end impunity; that telecommunication makes people care more empathetically about distant tragedies; that bad guys will act like Western democratic leaders; and that impartial international bureaucrats could evenhandedly prosecute both sides.

The Kenyatta case reminds us that the alternative to victor’s justice is not super-neutral international justice, but rather no justice.

Ouch!

China Manages to File (and Not File) a Legal Brief in the Philippines Arbitration

by Julian Ku

The UNCLOS arbitral tribunal formed to hear a dispute brought by the Philippines against China has set December 15 as a deadline for China to submit a legal brief or memorial. As most of our readers know, China has steadfastly refused to even participate in the arbitral process. It has not selected any arbitrators and it did not attend the first hearing last spring. I (like most observers) expected China to ignore the December 15 deadline as well.

Although it looks like China will not file a formal legal memorial, it released yesterday a long, tightly argued “position paper” that looks a lot like a formal legal memorial (at least on the question of the tribunal’s jurisdiction).   So China is going to essentially file a jurisdictional objection (since the tribunal will surely read this paper) without having to file a formal legal brief.

It’s the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

As a legal document, the position paper is very well done and is the best legal analysis of the jurisdictional issues in the Philippines arbitration I have seen coming out of China, and certainly from the Chinese government. Granted, the Philippines have not released their own memorial so I haven’t had the chance to read their side. Essentially, China has three arguments against jurisdiction:

  • The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;

  • China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;

  • Even assuming,arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes,inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;

What is good about the position paper is that offers careful and credible legal analysis and avoids (for the most part) the annoying official propaganda tone that is the bane of every China-analyst.  I haven’t had the time to go through the paper with any great detail, so I will offer more detailed analysis at a future time. I will just say for now that I am most skeptical of China’s second argument: that the “Philippines has breached its obligation under international law” by failing to settle this dispute via negotiations. While China has usefully offered facts to explain how the Philippines has not really fulfilled its obligations to negotiate, I just don’t think the Declaration of Conduct China is relying upon can be interpreted to bar any and all UNCLOS arbitrations indefinitely, as China would seem to have it.

But there is a lot here to chew on.   I will try to share more of my thoughts when I’ve had time think about this paper more carefully. And I’m sure the Philippines will be tempted to release at least the jurisdictional portion of their brief as well. I hope they do, since the public reaction to their legal arguments will be just as important as any ruling the tribunal makes.

Did the Supreme Court Implicitly Reverse Kiobel’s Corporate Liability Holding?

by Julian Ku

Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits.  That decision, which was the original basis for the Supreme Court’s consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court in the U.S. has followed it.  The Supreme Court was initially going to review that original Kiobel decision, but then decided Kiobel on other grounds, namely, that the presumption against extraterritoriality applies to claims brought under the Alien Tort Statute.  In recent cases, ATS plaintiffs have raised questions about the viability of the original Kiobel corporate liability holding. Did the Supreme Court leave that question open or had it reversed the lower court’s corporate liability decision sub silentio?

The argument that the Kiobel corporate liability holding no longer stands has two parts.  First, a plain reading of the Supreme Court’s Kiobel decision turns up language suggesting that corporations could be liable under the Alien Tort Statute.  In the majority opinion, Chief Justice Roberts stated that ““[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices [to displace the presumption against extraterritorial application].”  The argument here is that although “mere corporate presence” is not enough, corporations with other, deeper connections might displace the presumption against extraterritoriality. (Since the Court in other places explicitly stated it was not reaching the corporate liability question, I am skeptical of this argument).

Second, and more persuasively, you might argue that because the Supreme Court dismissed the Kiobel case on the grounds that the presumption against extraterritoriality applied to the Alien Tort Statute and that the presumption only applies if the court has reached the merits (e.g. whether the statute applies to the facts at hand).  Because the corporate liability defense was a jurisdictional ruling, this line of reasoning goes, then the Supreme Court must have implicitly found that it had jurisdiction over corporations in order to dismiss the case on the merits.

This second argument has some force to it (it was previewed in our insta-symposium last spring), and it was accepted by Judge Shira Scheindlin in a separate New York district court ATS case even though she ended up dismissing that case on other grounds.   It looks like the plaintiffs in another ATS case, Jesner v. Arab Bank, will get the appeals court to consider the issue as well, according to this NY Law Journal write up of oral argument in that case.

I think it is unlikely that the panel will conclude that the Kiobel corporate liability holding has been implicitly reversed, but I do think there is enough of an argument here to attract review of the full en banc Second Circuit. The tricky part here is that the ATS is itself a “jurisdictional” statute, and as the Supreme Court in Kiobel acknowledged, the presumption against extraterritoriality doesn’t typically apply to jurisdictional statutes.  So the Kiobel presumption is a little different and its application to causes of action that can be brought under the ATS is not exactly the same as when the standard presumption against extraterritoriality is applied to a regular non-jurisdictional statute. But it is unclear whether it is different enough to matter.

I am still coming to my own point of view on this issue. I don’t think the defendants in Jesner really addressed this issue effectively in their brief, but it is a complex issue.  At the very least, I think it will be resolved in the near future by the Second Circuit, either by this panel or by the full court. Corporate liability under the Alien Tort Statute is not quite a dead issue, but ti will take some time to figure out how alive it is.

Eric Posner’s Not Completely Wrong Critique of International Human Rights Law Clinics

by Julian Ku

[I posted this last week, or I thought I did, but somehow it ended up staying hidden in the bowels of OJ’s archives. So although it is a little late, I am posting this again today.  -Julian]

As is his wont, U. Chicago law professor Eric Posner has hit a nerve with his recent Chronicle of Higher Education essay criticizing the value of international human rights law clinics at many law schools.  As part of his larger critique of international human rights law in general, Posner argues that most international human rights law school clinics “engage in a bewildering array of programs and strategies that have little in common but a left-wing orientation.”   Many (maybe most) of these clinics, Posner argues, engage in wide-ranging left-wing political advocacy with no particular focus on training students with legal skills. Crucial to his argument is that, unlike regular domestic law clinics, international human rights law is such a fuzzy unsettled and undeveloped area of law that there are few concrete legal skills that are teachable in such clinics.

His essay has drawn a sharp reaction (of course) from those who are involved in these clinics.  Most prominently, Sital Kalantry, the founder of a new international human rights clinics at U. Chicago Law itself, argues that Posner doesn’t understand what such clinics do and, in any event, his attack on clinics rests entirely on his (misguided) attack on international human rights law itself.

As always, I am sympathetic to Posner’s views here and admire his willingness to take on yet another sacred cow.   But even I think his attack on international human rights clinics sweeps a bit too broadly.  Under his view of the role of clinics and legal education, narrowly focused clinics would satisfy his standard.  My law school (Hofstra) has a just such a clinic focused on asylum hearings in deportation proceedings within the US immigration law system. Students learn a great deal about how to handle real clients, draft legal papers, and make arguments, before mostly administrative law judges.  But since asylum claims almost always require invocation of international as well as domestic law standards in order to determine whether asylum should be granted, it is also sort of an international human rights law clinic.

I do agree with Posner that it is possible that some international human rights law clinics, like that at my alma mater Yale, have extremely broad mandates to pretty much do anything from filing briefs in domestic litigation and suing their former alums, to lobbying city councils to adopt human rights standards to issuing reports on international law. And these clinics are very close to pure political advocacy groups. But these more ambitious clinics are probably inspired by freestanding non-governmental organizations like Human Rights First or Human Rights Watch, whose lawyers also engage in  broad range of non-lawyering political advocacy.  And they also are within the orbit of the larger universe of UN-affiliated NGOs and UN human rights institutions.  Should law students really be training to do the same type of stuff? I think this depends on the particular situation of the law school and the goals of its students.  I think a narrower clinic is probably better in most cases, but I am not ready to say that it would never be appropriate to have a broad-based international human rights law clinic, and that there would never be any useful legal education occurring in that clinic.

But I think Posner’s critique reminds us that international human rights law clinics are outside the traditional box of law school clinics, and that they do risk becoming a platform for pure political advocacy (and training students in pure political advocacy).  That is something that I agree is undesirable, and I am glad that his critics don’t dispute that point.  Even international human rights law clinics deserve scrutiny and to be held to the same standards as other law school clinics.

Law schools need to make hard assessments about whether such clinics are worth it for their students, and perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training (like a political asylum clinic, etc.).  Posner asks the right questions, even if I think his final answer is not quite right.

Let’s Be Real: An International Anti-Corruption Court Would Never Work

by Julian Ku

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.

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.