It is urgent that the United States ratify the international Convention on the Rights of the Child. This treaty, which recognizes that childhood is entitled to special care and assistance, is based on the principle that the family is the basic group of society, and it states that every child should be brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, so that the child can be fully prepared to live a worthwhile life in society.
The children’s rights treaty was unanimously adopted by the United Nations General Assembly in 1989 and came into effect within a year, upon its ratification by the 20th signatory. To date, most of the 193 UN members have ratified the treaty. Only the US, Somalia and South Sudan have failed to accept it. The Clinton administration signed the treaty on behalf of the US in 1995, but it has never been sent to the Senate for ratification.
As with the international women’s rights treaty, the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw), which also has yet to be ratified by the US (in company, again, with Somalia and a few other countries), when people learn for the first time that the US is an outlier in this regard, they ask, Does the treaty matter? The answer in the case of both treaties is: Yes, it matters a lot, because the US will continue to lack moral authority to advance human rights in other countries until we set our own affairs straight.
So why has the US not joined the rest of the developed world -– and beyond -– in ratifying the children’s pact? One reason is that America still suffers from vestiges of a generalized mistrust of international human-rights treaties, which had its roots in the 1950s, when Southerners feared that ratification would force them to give up racial segregation.
Fortunately, that unhappy reminder of our slave-holding past has faded, though something akin to it is still around, expressed as a view that we don’t need “foreigners” (to use the US Supreme Court Justice Antonin Scalia’s word) to tell us how we should protect our children. It is somewhat ironic that one objection to US adoption of the treaty used to be that it forbade the execution of criminals for acts they committed under age 18, which used to be legal in some states.
In fact, when the US ratified the International Covenant on Civil and Political Rights, it included a reservation that the US could continue to allow capital punishment for juveniles, where state law so provided. Then the US Supreme Court ruled in 2005 that executions for crimes committed by juveniles violated the Constitutional prohibition of “cruel and unusual punishments” because of emerging national consensus against such executions and the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”
Perhaps we can learn something from those foreigners after all. The concern about the possible weakening of US sovereignty that might result from ratifying the treaty also reveals hostility toward its requirement that the US report on the progress of children’s rights in America to the 10-member UN Committee on the Rights of the Child. It would further give the committee the right to make suggestions and general recommendations to the US, which would be reported to the UN General Assembly.
As so often with important decisions, there are trade-offs to be weighed: are we so afraid of telling the world what is happening with children’s rights in the US and running the risk of unfavorable comment that we are willing to weaken our ability to influence how other nations treat their women and children? I don’t think so.
The children’s treaty has also been heavily criticized by opposition groups in the US who fear the treaty would impinge on parents’ rights regarding such things as their powers to determine what religion their children should follow; to home-school their children if they want; to have their children excluded from sex education classes in schools outside the home; and to spank or otherwise discipline their children (and give school authorities the power to do the same).
Opponents also contend the treaty would shift the balance of powers to make decisions about children’s welfare from parents to public authorities and from state governments to the federal government, and that adopting it would subject US government decisions to review by international bodies composed mainly of foreigners, perhaps even the International Court of Justice.
As we consider these points against ratification, it is critical to remember that the Senate action does not have to be an up or down vote on the treaty as approved by the UN General Assembly. The Senate can qualify its acceptance of the treaty provisions through the use of “reservations, understandings and declarations,” often called RUDs. The Senate can also carve out reservations to cover cases when treaty provisions and US domestic law do not track each other and to establish, as it has proposed to do with Cedaw, that the treaty does not reach “private conduct.” In addition, the Senate can state its “understandings,” which often relate to clarifying how treaty obligations can play out in America, where certain powers are reserved to state and local governments, and where we can clarify that our Bill of Rights, as interpreted by the Supreme Court, will trump treaty terms.
Finally, the Senate can make “declarations,” which are often statements that the treaty will not be self-executing — that is, it will take effect only through additional legislation — and can also state that the US refuses to be bound by the treaty’s dispute-resolution provisions, particularly those conferring jurisdiction on the International Court of Justice.
Human-rights advocates have often deplored the widespread use of RUDs by the US. This is only natural for people who are extremely passionate about the rights of women and children and human beings in general. Yet the time has come to recognize that there will always be honest differences of opinion on these subjects, even among intelligent people of good will. It is far better to face our limitations, enact into US law the points we can agree on and continue to conduct civil discourse on the disagreements. For the things that really matter, like not executing juvenile criminals, we can hope, or even expect, that a majority of US citizens will want to live in a society that shows a greater degree of respect for the dignity of all people, including children.
So the time has come for human-rights advocates to face the question as to whether it’s better for the US to ratify the children’s rights treaty with objectionable or even painful RUDs or to continue to be regarded as something of a rogue state in terms of children’s rights. It is only by ratification that we can be effective with other countries to advance human rights throughout the world.
This is the second in a series of essays on the need for US ratification of international human-rights conventions.
Why the International Women’s Rights Treaty Matters
Protecting Children’s Rights in Troubled Landscapes
We welcome your comments on this article. What are your thoughts?
Anthony C. Gooch is a retired partner at the international law firm Cleary Gottlieb Steen & Hamilton. He has written and co-authored numerous books and articles on legal topics and serves on several boards and councils, including the board of the Chamber Music Society of Lincoln Center, the Rockefeller University Council and the Investment Management Committee of the board of regents of Sewanee: The University of the South.
Gooch formerly served as board chairman of the International Institute of Rural Reconstruction, an organization that works to better the conditions of the rural poor and their communities in Africa and Asia.
An honors graduate from the University of the South in Sewanee, Tenn., Gooch also holds a law degree and a master of laws from New York University and a master’s degree in international affairs from Columbia University as well as a diploma from the College of Europe in Bruges, Belgium.