Convention on the Rights of the Child: Would Ratification Impact American Kids?

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On October 1, Somalia's government ratified the Convention on the Rights of the Child,[1] leaving the United States as the only U.N. member that has not ratified the treaty.[2]Some observers argue that the United States’s failure to ratify the treaty undermines its leaders’ claims that their country is the world leader on human rights.[3] Although the purpose of the treaty is to promote children’s human rights, ratification probably would not have any significant impact on the rights of U.S. children.

The Convention, which was adopted on November 20, 1989, and entered into force on September 20, 1990,[4] is now the most widely ratified human rights convention.[5] It obliges state parties to respect and ensure the rights of children (defined as anyone under the age of 18),[6] and provides for the realization of these rights by setting standards for health, education, legal, civil, and social services for them.[7]

The U.S. was instrumental in drafting the convention. The Reagan and George H. W. Bush administrations contributed several articles directly from the U.S. Constitution, and the Clinton administration signed it in 1994.[8] The First Amendment rights of freedom of religion, speech, and peaceful assembly, along with the Fourth Amendment right of people to be secure in their persons against unreasonable searches and seizures,[9] are all enshrined in the convention.[10] Considering the strong U.S. influence, it seems unusual that no U.S. President has submitted the treaty for consideration.

In the United States, ratification requires a two-thirds supermajority vote in the Senate after submission by the President.[11] A treaty that requires no implementing legislation, a so-called self-executing treaty, enters into force as domestic law immediately after ratification.[12] Non-self-executing treaties enter into force as domestic law only upon the passage of implementing legislation.[13] Additionally, a treaty intended to be self-executing can be rendered otherwise within the United States if the Senate, in ratifying it, attaches a statement of limitations.[14] Such statements are known as “reservations, understandings, and declarations”, or “RUDs”.[15] They are loosely analogous to presidential signing statements and similarly controversial, though their force is less open to dispute within the United States.[16]

Ratification by the U.S. is unlikely to substantially impact the rights of children for two reasons. First, U.S. law is already consistent with most of the Convention's elements. Apart from the Constitutional provisions, U.S. federal law provides similar protections for children. For example, federal child-labor statutes, which protect children’s safety when they work,[17] are consistent with Article 32 of the Convention.[18] Also, the Child Abuse Prevention and Treatment Act[19] helps protect children from child abuse as the Convention requires.[20] Since children are already afforded these rights, ratifying the Convention is unlikely to augment those rights further.

Second, where the Convention is inconsistent with U.S. law, the Convention’s provisions are not likely to alter the rights of children because the U.S. Senate has typically ratified human-rights treaties with RUDs that render them non-self-executing.[21] It has been argued that this practice is meant to keep U.S. judges from adjudicating local human-rights conditions under international standards.[22] Article 37 of the Convention, which prohibits sentencing children to death or life imprisonment without a possibility of parole, was one area in which U.S. laws directly contravened the Convention.[23] It was not until 2005 that the Supreme Court, in Roper v. Simmons,[24] ruled the execution of juveniles unconstitutional.[25] Similarly, it was not until 2012 that the Supreme Court, in Miller v. Alabama,[26] ruled the sentencing of juvenile to life without the possibility of parole unconstitutional.[27] The U.S. could ratify the convention with inconsistent provisions; however, as a non-self-executing treaty, the U.S. can choose to implement only parts that are consistent with domestic laws while inconsistent provisions remain ineffective absent domestic legislation.

[1] Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter Convention].

[2] Denis Fitzgerald, Somalia Ratifies Child Rights Convention, U.S. Sole Holdout, UN Tribune (Oct. 1, 2015), [].

[3] See Joe Lauria, Why Won’t the U.S. ratify the UN’s Children’s Rights Convention?, Huffington Post (Nov. 25, 2014), [] (“U.S. leaders like to say the U.S. is the world leader on human rights. That claim is undermined by its failure to join the rest of the world in ratifying this convention.”).

[4] Convention on the Rights of the Child, Audiovisual Library Int’l L., [] (last visited Oct. 18, 2015).

[5] Bradley McAllister, UN welcomes Somalia’s ratification of Child’s Rights Convention, Jurist (Oct. 3, 2015), [].

[6] Convention, supra note 1, art. 1.

[7] Convention on the Rights of the Child, supra note 4.

[8] Lauria, supra note 3.

[9] U.S. Const. amends. I, IV.

[10] Convention, supra note 1, arts. 13-16.

[11] U.S. Const. art. II, § 2, cl. 2.

[12] Sen. Comm. on Foreign Relations, 106th Cong., S. Rpt. On Treaties and other International Agreements 4 (Comm. Print 2001).

[13] Id.

[14] Penny M. Venetis, Making Human Rights Treaty Law Actionable in the United States: The Case for Universal Implementing Legislation, 63 Ala. L. Rev. 97, 101–02 (2011), available at (PDF).

[15] Id. at 97–98; Duncan Hollis, Relating Presidential Signing Statements and RUDs?, Opinio Juris (Sept. 13, 2006), [].

[16] Hollis, supra note 15.

[17] 29 C.F.R Part 570 (2015).

[18] Convention, supra note 1, art. 32.

[19] See 42 U.S.C. § 5101 et seq. (2012); Pub. L. 93-247 (Child Abuse Prevention and Treatment Act of 1974); Pub. L. 111-320 (CAPTA Reauthorization Act of 2010).

[20] Convention, supra note 1, art. 19.

[21] See M. Shah Alam, Enforcement of International Human Rights by Domestic Courts in the United States, 10 Ann. Surv. Int’l & Comp. L. 27, 31 (2004) (discussing the U.S. Senate’s and presidents’ history of using RUDs to declare human-rights treaties as non-self-executing).

[22] Venetis, supra note 14, at 109.

[23] Id. art. 37.

[24] 543 U.S. 551 (2005).

[25] Id. at 578.

[26] 132 S. Ct. 2455 (2012).

[27] Id. at 2469.

Posted by Ellenmai Korkoya on Tue. November 3, 2015 9:40 AM
Categories: Children's rights, International Human Rights, Somalia, United Nations, United States

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