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Lainie Rutkow[*]
Joshua T. Lozman[**]
Protecting the human rights of children is critical to the development and continuity of nations. Yet, worldwide, the dignity and rights of children are violated every day.[1] The United Nations Children’s Fund’s (“UNICEF”)[2] annual report, for 2005, on children’s health and development chronicles the difficulties children around the world face. Of the 2.2 billion children in the world, 1.9 billion live in developing countries.[3] It is estimated that since 1990 more than 1.5 million children have been killed in armed conflict.[4] Many children are born with health difficulties. In two of the world’s most populous countries, Bangladesh and India, thirty percent of infants are underweight at birth.[5] The life expectancy for children born in the developing world remains as low as forty to forty-five years in countries such as Afghanistan, Democratic Republic of the Congo, and Ethiopia.[6] For those children
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who do survive early childhood, one in seven, worldwide, is denied access to any healthcare and fifteen million have been orphaned by HIV/AIDS.[7]
In the United States, an estimated 1400 children die each year from abuse and neglect.[8] Over seventeen percent of Americans under the age eighteen, or 12.9 million children, grow up in poverty.[9] The reality of these children’s lives demonstrates their need for strong protections. Commenting on UNICEF’s “State of the World’s Children 2005” report, U.N. Secretary-General Kofi Annan said, “[o]nly as we move closer to realizing the rights of all children will countries move closer to their goals of development and peace.”[10]
In light of the plight many children face, it is not a surprise that the U.N. Convention on the Rights of the Child (“CRC”) is the most successful U.N. human rights treaty with regard to the number of nations that have signed and ratified the treaty.[11] In fact, every self-governed nation in the world has both signed and ratified the CRC, with a single exception—the United States.[12] This Article makes the case that the time has arrived for the U.S. Senate to give advice and consent to ratify this critically important convention. Part II explains the role that the U.N. plays in protecting human rights around the world. Part III discusses the CRC and explains its different provisions. Part IV examines the United States’ past treatment of human rights treaties. Part V explores the United States’ treatment of the CRC to date, including an analysis of the reasons for the United States’ failure to ratify the CRC. Part VI responds to arguments against United States’ ratification of the CRC. Finally, Part VII explains why the time has arrived for the United States to ratify the CRC.
The chasm between the United States’ critical role in forming the U.N. and its current lack of leadership on human rights efforts is both ironic and unfortunate. World War II redefined the world’s power structure. The United States grew into a superpower, in part through its role in defeating Nazi Germany.[13] If “a treaty . . . records the situation, the power equilibrium . . .
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just prior to [the treaty’s] formulation,”[14] then the change in power equilibrium after the Second World War demanded a new treaty and, further, a new organization to govern international cooperation. This new equilibrium led to the dissolution of the League of Nations,[15] to which the United States was not even a member,[16] and to the drafting of the Charter of the United Nations (“U.N. Charter”) on June 26, 1945.
The U.N. Charter clearly reflects the post–World War II change in “power equilibrium,”[17] but it also reflects the horrors from which the world had just emerged. The preamble to the U.N. Charter confirms that the United Nations was created to be more than a peacemaking organization and that its scope was to surpass that of the League of Nations. Outlined in the preamble are goals such as reaffirming human rights, establishing conditions under which international obligations can be respected, and promoting social progress and “better standards of life in larger freedom.”[18] The early and clear focus on protecting human rights and dignity, as well as promoting social progress, is evident both in the preamble to the Charter and in the body of the document.[19] Indeed, Article 1 of the U.N. Charter first mentions the right to self-determina-tion, which is a central part of many other subsequent human rights documents.[20] The United States showed its support for the U.N. Charter by ratifying the document a mere thirty-two days after it was opened for signature.
The United Nations took a direct step toward codifying human rights when the Universal Declaration of Human Rights (“Universal Declaration”) was authored in 1948.[21] Although the United States signed the Universal Declaration, a declaration, unlike a convention, does not involve any formal means of implementation; “[r]ather it asks every individual and organ of society to strive to promote respect for the rights and freedoms enumerated.”[22] In other words, a declaration is not legally binding.[23]
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Eleanor Roosevelt, then the United States’ representative to the U.N. Commission on Human Rights, cast the U.S. vote for adoption of the Universal Declaration, with support from Secretary of State George Marshall. Roosevelt also negotiated two draft treaties, the International Covenant on Civil and Political Rights (“ICCPR”} and the International Covenant on Economic, Social and Cultural Rights (“ICESR”).[24] The United States’ role in drafting the U.N. Charter, as well as the International Bill of Rights (which consists of the Universal Declaration, the ICCPR, and the ICESR), was significant, but the United States has been hesitant to ratify many of the subsequent human rights treaties into law.[25]
The CRC is the youngest of the major U.N. human rights documents. It was adopted by the U.N. General Assembly on November 20, 1989, and entered into force on September 2, 1990.[26] The CRC was ratified by 100 States Parties within two years of its adoption.[27] By 1997, the treaty claimed over 191 States Parties.[28] The United States remains the only self-governed nation in the world that has not ratified the CRC. The CRC contains classic civil and political, as well as economic, social, and cultural, rights. The CRC has three components: the preamble, the provision of core rights to children, and the articles on implementation.
The CRC’s preamble provides a history of the humanitarian documents that created precedents for human rights conventions and set the stage for the CRC. The preamble, which was written “in accordance with the principles proclaimed in the Charter of the United Nations, [recognizes that] the inherent dignity and . . . the equal and inalienable rights of all members of the human family [are] the foundation of freedom, justice and peace in the world.”[29]
The CRC’s reference to the U.N. Charter evidences a seeming conflict wrought throughout the document between the concept of a child as an individual or maturing adult and the concept of a child as a member of a fam-
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ily, “the fundamental group of society.”[30] The CRC’s preamble states that “the child should be fully prepared to live an individual life in society and brought up in the spirit of the ideals proclaimed in the charter of the United Nations.”[31] The preamble also cites the Universal Declaration’s proclamation that “childhood is entitled to special care and assistance.”[32] It pays homage to past documents that support the rights of the child: the Geneva Declaration of the Rights of the Child of 1924, the Declaration of the Rights of the Child of 1959, the Universal Declaration, the ICCPR, and the ICESR.[33]
The CRC provides three categories of central rights to children: provisional, protective, and participatory.[34] The provisional category of rights includes classic civil and political rights such as the “inherent right to life,”[35] “the right of the child to the enjoyment of the highest attainable standard of health,”[36] “the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development,”[37] and “the right of the child to education.”[38] Protective rights include the expectations that “States Parties shall take measures to combat the illicit transfer and non-return of children abroad” and that “States Parties shall take all appropriate . . . measures to protect the child from all forms of physical or mental violence, injury or abuse.”[39] Participatory rights include the rights to “freedom of expression,”[40] “freedom of thought, conscience and religion,”[41] and “freedom of association.”[42] The CRC’s provisions for the participatory rights of children are the ones that have often sparked resistance among U.S. interest groups.[43] Arguments against these participatory rights have been expressed vehemently by conservative family rights activists and have contributed to the failure of the United States to ratify the CRC.[44]
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The CRC was opened for signature, ratification, and accession on January 26, 1990.[45] Article 46 of the CRC opens the convention to signature by all States.[46] Articles 47 and 48 open the CRC to ratification and for accession.[47] While accession and ratification lead to the same outcome, unlike signature, they are legally binding. The United Nations requires two steps to ratify the CRC. First, “[t]he appropriate organ of the country takes a formal decision to be a Party to the Convention in accordance with the relevant domestic constitutional procedures.”[48] Then, “[t]he Government deposits the instrument of ratification or accession” with the Secretary-General of the U.N.[49] The CRC becomes legally binding in the country thirty days after the instrument of ratification or accession has been received.
Under the U.S. system for ratifying international treaties, the President signs the treaty, but only with the advice and consent of the Senate. Although signature of a treaty is generally understood to demonstrate intent to ratify,[50] after signature, ratification is not always imminent. For example, after signing the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), the United States took nearly forty years to ratify the Genocide Convention.[51]
There are currently seven major U.N. human rights conventions: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”), the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), the ICCPR, the Genocide Convention, the ICESR, and the CRC.[52] The United
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States has ratified four of these conventions.[53] Although this may be viewed as a strong record of support for human rights, the United States has attached to each of these ratifications a “package of reservations, understandings, and declarations.”[54] Many of these reservations are attributed to the proposed Bricker Amendment of the 1950s.[55] At that time, Senator John Bricker (R-Ohio) led a campaign to amend the Constitution to include the following provision: “A treaty shall become effective in the United States only through legislation which would be valid in the absence of the treaty.”[56] Although the amendment was defeated, a non-self-executing clause mirroring the Bricker Amendment has been added by the United States to the ratifi-cation of all human rights treaties.[57]
Nearly thirty years after the Bricker Amendment was defeated, Senator Jesse Helms (R-N.C.), who was the ranking member of the Senate Foreign Relations Committee at the time, insisted that a reservation on national sovereignty, stating that “nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States,”[58] be attached to the Genocide Convention. A compromise was eventually reached where the language of the proposed reservation was softened to a proviso sent to all States Parties explaining that “no legislation or action is required that is prohibited by the U.S. Constitution.”[59] Similar provisos were sent to the States Parties upon the ratification of the ICCPR in 1992 and the ratification of the Convention on the Elimination of All Forms of Racial Discrimination in 1994.[60] Additionally, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture, and the ICCPR were all ratified as non-self-executing by the United States.[61] These reservations certainly reduce the legal authority of the ratifications. Arguably, the reservations also reduce the significance of the ratifications.
The major human rights treaties that have not yet been ratified by the United States have faced similar problems.[62] Concerns about the U.S. sovereignty pervade every human rights convention, including those not yet ratified
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by the United States, as evidenced by the inclusion of the non-self-executing clause in each of the U.S.-ratified human rights treaties.[63] Additionally, the four main areas of U.S. opposition to the CRC—sovereignty, federalism, reproductive and family planning rights, and parents’ rights—are all criticisms also leveled against CEDAW and the ICESR.
The Senate has debated whether to ratify CEDAW many times.[64] CEDAW was submitted to the Senate for advice and consent by President Jimmy Carter in 1980 and again, by President Bill Clinton, in 1994.[65] When the United States signed CEDAW in July of 1980, the Senate had failed to give advice and consent on any major human rights treaty.[66] A State Department report proposed reservations to CEDAW so that “ratification of [ ] [CEDAW] would not change domestic law.”[67] The reservations were suggested in an attempt to protect U.S. sovereignty, to prevent an international treaty from affecting domestic law. If CEDAW is ratified by the United States, it will likely be with a reservation that the treaty is not self-executing, preventing the terms of CEDAW from automatically becoming part of U.S. law.[68]
CEDAW has faced opposition in the United States primarily from groups that oppose abortion[69] despite the fact that CEDAW makes no explicit reference to abortion and the fact that the State Department declared CEDAW “abortion neutral.”[70] This opposition has included a Senate resolution submitted by Senator Helms stating that “the Convention’s agenda to promote abortion worldwide invades the laws of countries that hold a religious or moral belief that abortion is the destruction of innocent human life and that it subjects expectant mothers to physical and emotional trauma.”[71] Led by Helms in the Senate, many leaders and groups opposed to CEDAW also believe that “[CEDAW] is about denigrating motherhood and undermining the family.”[72] Despite the opposition to CEDAW, on July 30, 2002, the Senate Foreign Relations Committee voted twelve to seven in favor of sending CEDAW to
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the full Senate for ratification. The treaty, however, was not brought up for a vote before the end of the 107th Congress, and the United States has yet to ratify CEDAW.
The ICESR has been described as the “most significant statement of aspirations for a regime of minimum welfare guarantees protected by international law.”[73] It entered into force in 1976 and was signed by President Carter, and then sent to the Senate for advice and consent. The ICESR includes the “right to work,”[74] “the right of everyone to social security, including social insurance,”[75] and “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”[76] The reasons for U.S. opposition to ratification of the ICESR are more fundamental than the reasons for opposition to CEDAW and the CRC in that the opposition to the ICESR “arise[s] essentially from the absence of clear agreement on values between the United States and the international community when it comes to the very concept of economic, social and cultural rights.”[77] Although sovereignty issues are one basis for U.S. opposition to the ICESR,[78] the resistance to ratification is more focused on the values of community espoused by the ICESR and on the disagreement about whether these values should be defined as rights.[79]
Although fundamental differences between the United States and the international community are more readily apparent in the ICESR than in CEDAW and the CRC, and although opposition to the ratification of the ICESR does differ from that faced by the CRC and CEDAW, all three conventions face U.S. opposition due to concerns about international law infringing on domestic law and policy. Despite this opposition, the fact remains that the impact of U.S. ratification on any treaty is real and significant.[80]
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On November 20, 1989, the governments represented at the U.N. General Assembly adopted the CRC and officially made it a part of international law.[81] On January 26, 1990, the CRC was opened for signature, ratification, and accession, and it entered into force on September 2, 1990.[82] Since that time, several attempts have been made in the U.S. Congress to ratify the CRC. On January 23, 1990, Bill Bradley (D-N.J.) introduced a resolution in the Senate that urged the President to submit the CRC to the Senate “for its advice and consent to ratification.”[83] The resolution ultimately had sixty co-sponsors. It stated that implementation of the CRC would “help establish universal legal standards for the care and protection of children against neglect, exploitation, and abuse.”[84] One week later, Gus Yatron (D-Pa.) introduced an identical resolution in the House.[85] The resolution had eighty-nine co-sponsors. The House and Senate resolutions were adopted.[86] However, President George H. W. Bush failed to sign or pursue ratification of the CRC.
In 1992, during the next Congress, Bernard Sanders (I-Vt.) introduced a resolution to the House calling for U.S. ratification of the CRC.[87] The resolution, which gained eighty-four co-sponsors, explained that, as of May 1992, “117 countries had become state parties to the [CRC] by ratification or accession, and 29 others had signed the [CRC] indicating their intention to ratify the Convention in the future . . . . [T]he United States is the only Western industrialized Nation which has neither signed nor ratified the [CRC] . . . .”[88] Two months later, Patrick Leahy (D-Vt.) introduced an identical resolution in the Senate.[89] The resolution had twenty-three co-sponsors. Again, the CRC went unsigned.
The following year, during the 103d Congress, Sanders introduced a House conference resolution that reiterated Congress’s “sense . . . regarding the need for the President to seek the Senate’s advice and consent to ratification of the [CRC].”[90] A month later, Bradley again introduced a resolution
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to the Senate that echoed the sentiment of his 1990 resolution.[91] This time the resolution had fifty-four co-sponsors. In May 1994, Leahy addressed the Senate to urge his fellow senators to co-sponsor the resolution. He explained that
[t]he administration’s resistance [to ratifying the CRC] is due to misunderstandings about the convention. Opponents claim that it is antifamily . . . or infringe[s] upon States rights. The [CRC] does none of these things.
It does create an internationally approved, minimum standard for protecting children from poverty, abuse, and cruel labor practices. It calls on nations to affirm the rights of children not to go hungry, to be educated, and to live without persecution on the basis of gender, race, religion or creed. In short, it provides a framework around which to build a safe, healthy, stable environment for our children’s development.[92]
Echoing this opinion, John LaFalce (D-N.Y.) introduced a resolution asking members of the House to call for U.S. ratification of seven treaties, five of which are specifically human rights treaties, including the CRC.[93] In a separate statement, LaFalce entreated, “[t]he United States must now stand and be counted. We must show ourselves to be truly on the side of peoples seeking freedom, individual liberty, civil rights, and human dignity.”[94] Despite these efforts, the CRC remained untouched by the United States.
However, on February 10, 1995, the White House issued a press release stating that President Clinton had decided the United States would sign the CRC. But the statement went on to say that when the President decided to send the CRC to the Senate for advice and consent to ratification, he would “ask for a number of reservations and understandings . . . [to] protect the rights of the various states under the nation’s federal system of government and maintain the country’s ability to use existing tools of the criminal justice system in appropriate cases.”[95] Madeleine Albright, acting as the U.S. Delegate to the U.N., signed the CRC on behalf of the United States on February 16, 1995.
With the President poised to send the CRC to the Senate for advice and consent to ratification, Senator Helms submitted a resolution, with twenty-
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six co-sponsors, urging the President not to pursue ratification of the CRC.[96] The proposed resolution stated that
(1) [The CRC] is incompatible with the God-given right and responsibility of parents to raise their children;
(2) [The CRC] has the potential to severely restrict States and the Federal Government in their efforts to protect children and to enhance family life;
(3) [T]he United States Constitution is the ultimate guarantor of rights and privileges to every American, including children.[97]
No further action was taken on the CRC that year. The most recent call for ratification of the CRC appeared as part of a bill introduced by Sanders to the House in 1997.[98] The bill died in the House Ways and Means Committee. In 2006, the CRC has not yet been transmitted to the Senate for ratifica-tion, and the current administration has not announced any plans to do so.
On May 25, 2000, the United Nations adopted two optional protocols to the CRC.[99] The first protocol called on States Parties to curb children’s involvement in armed conflict.[100] The second protocol required States Parties to prohibit the sale of children, child prostitution, and child pornography.[101] For purposes of signing and ratification, these optional protocols are treated the same as any other U.N. treaty. In July 2000, President Clinton signed both protocols,[102] and both the U.S. Senate and House adopted resolutions calling for prompt ratification of these protocols.[103] President Clinton transmitted the protocols to the Senate for advice and consent to ratification in late July 2000,[104] and on December 23, 2002, the United States, under the leadership of President George W. Bush, ratified both optional protocols.[105] Al-
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though the passage of these optional protocols is distinct from ratification of the CRC itself,[106] U.S. ratification of the protocols does demonstrate some recognition of the role of international law in protecting children’s rights.
During the fifteen years since the CRC was opened for signature and ratifica-tion, the U.S. critics of the convention have posited a variety of arguments. Some of these arguments have been raised officially in Congress while others have been voiced in the legal and other academic literature.[107] To understand why the United States has not yet ratified the CRC, it is important to review the arguments made by those opposed to its ratification. The discussion below addresses the most frequently made anti-ratification arguments.
Before embarking on a discussion of the CRC opponents’ sovereignty concerns, it is helpful to briefly consider the history behind contemporary views of sovereignty. “Sovereign” refers to “a source of ultimate authority, as opposed to authority that is shared with another institution or subordinated to systemic norms and enforcement mechanisms.”[108] In the realm of international law, sovereignty refers to the independence of nations; “without sovereignty, a nation-state cannot, by definition, be independent.”[109]
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In the first half of the twentieth century, the United States grew to be a superpower.[110] Nations around the world witnessed advances in global communication and transportation,[111] bringing the nations into greater and more frequent contact. This increased interaction “led to the establishment of standing organizations that functioned as trade or defense pacts . . . .”[112] Unfortunately, global conflicts arose and eventually culminated in World War II. Following the war’s end, several nations determined to form a body that would preclude future global tragedies. As a result, the United Nations was created to “save succeeding generations from the scourge of war . . . , to reaffirm faith in fundamental human rights . . . , to establish conditions under which justice and respect for the obligations arising from . . . international law can be maintained, and to promote social progress . . . .”[113] As nations joined international organizations, such as the United Nations, they “agreed to subrogate their individual sovereignty in a specific, limited matter or for a specific, limited time.”[114]
It is against this backdrop that academicians and politicians have expressed serious concerns about the ramifications for U.S. sovereignty each time the country ratifies a treaty.[115] Essentially, there are two lines of arguments that ratification of international treaties threatens U.S. sovereignty. First, detractors worry that
giving force to transnational rules laid down by non-American decision makers surrenders U.S. sovereignty. The reasoning appears self-evident: sovereignty as a “final say” is a sine qua non of statehood, and it is indivisible. To the extent that a state is subject to
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law made elsewhere, it has lost its sovereignty and, perhaps, in some deep way, its right to call itself a “state.”[116]
This was one of the central reasons the entrance of the United States into the North American Free Trade Agreement, the World Trade Organization, and the International Criminal Court was criticized.[117] Because these agreements “were effectively permanent and could not be changed without the consent of the signatories,”[118] critics claimed that the United States had forsaken its sovereign status. Similar concerns have been voiced about U.S. ratification of the U.N. treaties.[119]
A second, related argument holds that treaties frequently create decision-making bodies whose members are “not elected or appointed by Americans,”[120] yet whose decisions are binding on the United States. When these bodies create law, it is “at one remove from the terms to which the Senate agreed [when it ratified the treaty].”[121] It is due to these concerns that the United States has failed to ratify several of the major human rights treaties.
In federalist systems, federal power is limited “so as to protect state sovereignty.”[122] The United States has cited concerns about the impact on federalism as a reason to stall ratification of nearly every human rights treaty.[123] Federalism-based arguments against ratification of international treaties date back to the early twentieth century when, in 1916, the United States entered into a treaty with Great Britain to provide greater protection to certain migratory birds. When, eighteen months after its entrance into this bird treaty, the United States passed the Migratory Bird Treaty Act, which “pro-
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hibited the killing, capturing, or selling [of] any of the migratory birds included in the terms of the treaty,”[124] the state of Missouri challenged the treaty and statute as violating the Tenth Amendment. In the Supreme Court’s majority opinion in Missouri v. Holland, Justice Oliver Wendell Holmes explained that the test of validity for a treaty differs from the test of validity for acts of Congress in that “[i]f a treaty is valid there can be no dispute about the validity of the [implementing] statute under Article 1, Section 8, as a necessary and proper means to execute the powers of Government . . . . Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States.”[125] Justice Holmes’s opinion went on to state that “[b]ut for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and crops are destroyed.”[126]
Today, Missouri v. Holland is generally understood to stand for the principle that “Congress has power to enact legislation to implement a treaty, even if it would lack the power to enact the same legislation absent the treaty.”[127] However, while Missouri remains good law, academics and commentators are bitterly divided over whether or not the case was properly decided,[128] mainly because of Missouri’s implication “that a treaty could be used to grant the federal government authority over the states which otherwise would not have been constitutionally permitted.”[129]
By the 1950s, several members of Congress had begun to overtly question the Missouri Court’s ruling.[130] This movement was led by Senator Bricker,[131] who proposed a constitutional amendment that would have made a treaty effective in the United States only through legislation that would be valid in the
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absence of the treaty.[132] Had the amendment passed, it would have severely curbed the United States’ ability to adhere to human rights treaties. President Dwight D. Eisenhower opposed the Bricker Amendment, and it was ultimately defeated. However, to ensure the amendment’s defeat, Eisenhower “promised that the United States would not accede to international human rights covenants or conventions.”[133]
In the case of the CRC, which “deals almost exclusively with areas of law traditionally thought to be reserved to the states,”[134] the federalism concerns engendered by the Missouri decision and Bricker Amendment controversy are especially prevalent. The CRC touches on many aspects of family law and juvenile justice that have customarily been regulated by the states and not the federal government. In particular, the CRC addresses family separation and reunification,[135] child placement and custody issues,[136] and protection of children from abuse and neglect.[137] Critics claim that U.S. ratification of the CRC “would negatively affect the ability of state courts in the United States to deal with legal issues touching children.”[138]
In addition to federalism concerns related to the CRC’s potential impact on the states’ traditional authority over family law, another basis for U.S. opposition to the CRC is its provision banning juvenile executions.[139] The CRC states that “[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”[140] Until recently, the United States permitted individual states to execute persons convicted of capital crimes committed when they were under the age of eighteen.[141] However, in Roper v. Simmons, the Supreme Court eliminated the possibility of juvenile executions in the United States.[142] Thus, the Roper decision essentially nullified any hesitation in ratifying the CRC based on its potential impact on individual states’ right to execute juveniles.
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The CRC maintains no explicit position on the issues of contraception, abortion, or other family planning services. Nevertheless, U.S. critics fear that because the CRC does not explicitly offer protection to the fetus, its ratification will endorse abortion and encourage children to have abortions.[143]
The parents’ rights movement is grounded in several Supreme Court cases that have affirmed certain parental rights. In 1923, the Court decided Meyer v. Nebraska,[144] which concerned a Nebraska statute that prohibited the teaching of foreign languages to any student who had not graduated from the eighth grade.[145] Although the Court struck down the statute, the parent’s rights movement has found constitutional support for its cause in the Meyer Court’s discussion of the Fourteenth Amendment as including the right to “establish a home and bring up children . . . .”[146] Two years later, in Pierce v. Society of Sisters,[147] the Court affirmed the rights of parents by striking down an Oregon statute that required parents or guardians to send children between ages eight and sixteen to a public school in the district where the child resided.[148] The Court found that the statute “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control . . . . The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[149] Meyer and Pierce, which remain good law, established broad parental rights.[150]
In 1982, the Court again turned to the Fourteenth Amendment to expand the scope of parental rights in Santosky v. Kramer.[151] This case examined a New York law that allowed the termination of parental rights when it was
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found that the child was “permanently neglected.”[152] The “fair preponderance of the evidence” standard was used to make a determination of “permanent neglect[ ].”[153] In Santosky, however, the Court raised the evidentiary standard stating that “the Due Process Clause of the Fourteenth Amendment demands [that] . . . [b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.”[154] Taken together, Meyer, Pierce, and Santosky establish a clear line of support for certain parental rights.
Proponents of the parental rights movement have taken issue with the CRC, raising the twin concerns that the CRC elevates the rights of children to the detriment of their parents and that it endangers fundamental family relationships.[155] Supporters of the parents’ rights movement believe that the CRC grants children an unprecedented amount of autonomy. This line of reasoning finds that
[c]hildren are not autonomous. They are, by definition, “immature”—socially, mentally, emotionally, and physically. Hence, societies keep children from driving automobiles, from shooting guns, drinking alcohol, smoking, voting, viewing sexually explicit movies and photographs, and entering into binding contracts. Such “deprivations” protect children (and others) from the consequences of their immaturity. Adults impose such limitations not from arrogance or cruelty, but from wisdom.[156]
Critics of the CRC further emphasize the role that parents play in protecting children: “[I]t was an accepted reality of life in America that children are too immature to handle the tremendous responsibility adult ‘freedoms’ carry with them. Consequently, under the American model, parents determine when children are mature enough to handle adult responsibilities.”[157] As these concerns suggest, supporters of the parents’ rights movement fear that the CRC legally grants “autonomous capacity to children [and] ignores the realities of education and child development to the point of abandoning children to a mere illusion of real autonomy.”[158]
A related but slightly different fear about the CRC is that it will threaten the social cohesion of the family by injecting the state into the traditional family structure.[159] Opponents of the CRC explain that “the family, as the fun-
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damental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community . . . . Ratifying the CRC would threaten [this].”[160] As a result, the family unit would be shattered as children looked outside of the family to the state, rather than their parents, for guidance and support.[161]
As a direct result of these concerns, in 1995, days before President Clinton signed the CRC, opponents of the treaty’s ratification introduced bills in the House and Senate entitled the “Parental Rights and Responsibilities Act of 1995.”[162] The bills, which were identical, were introduced to “protect the fundamental right of a parent to direct the upbringing of a child . . . .”[163] and sought to prohibit federal, state, and local governments from “interfer[ing] with or usurp[ing]” this “fundamental right.”[164] Further, the bills attempted to elevate the standard used to evaluate all cases of government interference with parental rights to strict scrutiny. Both bills died in committee and were never reintroduced.
As already explicated, previous attempts by the United States to ratify the CRC have proved vastly unsuccessful.[165] However, current events, recent judicial decisions, and the international political climate all support a renewed effort to ratify the CRC. Moreover, the current state of children’s health and development demands that the United States pay closer attention to the inherent human rights of each child.
Although sovereignty concerns are frequently cited as a reason to avoid U.S. ratification of human rights treaties,[166] the manner in which these sovereignty concerns are framed must be considered. Detractors of the CRC and other international treaties believe that being subject to international law infringes on U.S. sovereignty. However, the United States can only be bound by international law through the exercise of its own legislative processes. In order for the United States to become a party to an international agreement, “a domestic decision-maker [e.g., the Senate]” must accept the agreement
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and “conclude[ ] that a non-U.S. rule should be a rule of decision within the United States.”[167] It is entirely possible that a domestic institution will decide that the United States’ interests, both at home and abroad, are best served by ratifying a treaty or entering a trade agreement. Such a determination can be viewed “as the result[ ] of an exercise of sovereignty, not as evidence of a lapse of sovereignty.”[168] After all,
[A] sovereign nation can decide that its sovereign interests are advanced . . . by making agreements with other nations that limit what it can otherwise do. . . . Even more, a sovereign nation can decide that its sovereign interests are advanced . . . by agreeing with other nations to delegate interpretive authority over treaties to some supranational body.[169]
A sovereign nation’s authority and ultimate success derive, in part, from recognizing when a multilateral or bilateral agreement promotes that nation’s political, economic, or humanitarian interests. The agreement may limit a nation’s sovereignty in a specific area, but it is a sovereign nation’s prerogative to determine when such a trade-off is beneficial.
In addition, several recent Supreme Court decisions demonstrated that certain justices are willing to consider international law and the laws and practices of other nations when drafting their opinions.[170] For example, in Grutter v. Bollinger, a case sustaining the University of Michigan Law School’s “narrowly tailored use of race in admissions decisions,”[171] Justice Ruth Bader Ginsburg’s concurring opinion cited the International Convention on the Elimination of All Forms of Racial Discrimination as an example of how the majority’s “observation that race-conscious programs ‘must have a logical endpoint’ . . . accords with the international understanding of the office of affirmative action.”[172] A few days later, in Lawrence v. Texas,[173] which held that a Texas statute
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prohibiting sexual contact between consenting adults of the same sex was unconstitutional, Justice Anthony Kennedy, writing for the majority, noted that other nations also recognized the right of homosexual adults to engage in consensual, intimate contact:
To the extent that Bowers [v. Hardwick] relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom . . . . Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.[174]
Even more recently, in Roper v. Simmons,[175] Justice Kennedy noted in his majority opinion, striking down the use of the death penalty on individuals convicted of capital crimes that they committed when they were juveniles, that “[i]t is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty . . . .”[176] While, of course, these developments do not alter U.S. sovereignty, they do show a growing recognition of the interconnectedness of the world’s nations and an acknowledgement that the laws and practices of other nations can influence domestic law.
Arguments that the CRC, if ratified by the United States, will upset the balance between the states and the federal government and violate the Tenth Amendment of the U.S. Constitution can be refuted both by the current state of the law and contemporary U.S. practice.[177] First, federalism objections to the CRC are essentially negated by Missouri’s holding that the treaty power gives the U.S. government authority over the states that is otherwise prohibited by the Constitution.[178]
In addition, the United States has several policies in place to ensure that ratification of international agreements does not impair federalism. First, U.S. ratifications of international treaties are accompanied by reservations,
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declarations, and understandings (“RUDs”)[179] that “severely limit the[ ] application [of human rights treaties] in the United States.”[180] This package of RUDs traditionally includes a federalism clause, with the idea that “the United States could leave implementation [of the treaty] largely to the states.”[181] This seeming contravention of the Missouri decision is reinforced by the “the policy of the United States, when ratifying human rights treaties, that those treaties [ ] make no significant changes to the American legal system.”[182]
To further ensure that human rights treaties do not significantly alter its federal structure, the United States has declared that the human rights treaties it ratifies are non-self-executing,[183] meaning that U.S.-ratified treaties do not automatically have legal force, “but must be implemented by legislative or other measures.”[184] This non-self-execution is designed to deny judges in the United States the ability to decide cases based upon the international standards created in human rights treaties.[185] Opponents of the non-self-executing clause believe that the clause undermines the seriousness with which the United States should approach human rights issues.[186]
In addition to these general concerns, as already mentioned, one of the United States’ primary reasons for failing to ratify the CRC is because of the CRC’s prohibition on juvenile executions.[187] Until March 1, 2005, this provision conflicted with U.S. law because the U.S. Supreme Court held in Stanford v. Kentucky[188] that there was “neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age . . . . [S]uch punishment does not offend the Eighth Amendment’s prohibition against cruel and unusual pun-
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ishment.”[189] Thirteen years later, however, in Atkins v. Virginia,[190] the Court outlawed capital punishment for the mentally retarded. The Court held that “in the light of our ‘evolving standards of decency,’ . . . [capital] punishment is excessive and . . . the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.”[191]
In March 2005, in its landmark decision in Roper v. Simmons,[192] the Court sought to resolve the seeming inconsistency between Stanford and Atkins. Christopher Simmons had planned and committed a capital murder when he was seventeen years old. After his eighteenth birthday, a Missouri court sentenced him to death for the crime and the state’s Supreme Court affirmed the decision in 1997.[193] After the Atkins case came down, Simmons filed a new petition for post-conviction relief with the state of Missouri.[194] After the Missouri Supreme Court reevaluated Simmons’s case in light of Atkins and determined that “a national consensus has developed against the execution of juvenile offenders,”[195] the Supreme Court accepted the case on appeal to evaluate the juvenile death penalty under the Eighth Amendment.
The Eighth Amendment, made applicable to the states through the Fourteenth Amendment,[196] prohibits “cruel and unusual punishments.”[197] In Roper, the Court explained that the Eighth Amendment’s prohibition against cruel and unusual punishment “must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design.”[198] To apply this framework, the Court looks to “‘the evolving standards of decency that mark the progress of a maturing society . . . .’”[199]
The Court began its analysis by surveying the states’ contemporary practices regarding juvenile executions. It found that in the last ten years, only three states—Oklahoma, Texas, and Virginia—executed people for crimes they committed while juveniles.[200] The Court also noted that since its Stanford decision, “no State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death penalty, carries special force . . . in light of the
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particular trend in recent years toward cracking down on juvenile crime in other respects.”[201] The Court recognized this trend as part of a growing national consensus that “our society views juveniles . . . as ‘categorically less culpable than the average criminal.’”[202]
The Court stated that the differences between juveniles and adults are such “that juvenile offenders cannot with reliability be classified among the worst offenders.”[203] First, the Court recognized “the comparative immaturity and irresponsibility of juveniles” that results in almost every State prohibiting “those under 18 years of age from voting, serving on juries, or marrying without parental consent.”[204] The Court also found that juveniles are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”[205] Finally, the Court recognized that “the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.”[206] The Court relied on these differences between juveniles and adults to hold that “it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[207] In light of these observations, the Court pointed out that the two main justifications for the death penalty—retribution and deterrence—would not be achieved by imposing the death penalty on juvenile offenders.[208]
Finally, the Court recognized that the United States is “the only country in the world that continues to give official sanction to the juvenile death penalty.”[209] The Court explained that while this observation is not controlling, it “referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’”[210] In particular, the Court emphasized the CRC’s provision prohibiting the use of capital punishment against juvenile offenders.[211] The Court went so far as to state that “the United States now stands alone in a world that has turned its face against the juvenile death penalty.”[212]
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In light of the Supreme Court’s definitive holding in Roper prohibiting capital punishment for capital crimes committed by juveniles, the CRC’s prohibition on juvenile execution can no longer be cited as a reason for postponing U.S. ratification of the treaty.[213]
The CRC does not take a position on family planning or abortion issues.[214] Most observers assume that the CRC’s authors deliberately left the CRC’s provisions on family planning open to interpretation by each of the ratifying States Parties.[215] Thus, the CRC provisions may be interpreted as recognizing a fetus as a child in need of protection. Although the CRC defines a child as a “human being below the age of eighteen years,”[216] the CRC does not establish when childhood begins. Although an individual eighteen years or older is not a “child” under the CRC, the CRC does not set a floor at which childhood starts. This omission, coupled with the statement in the CRC’s preamble that “[t]he child needs special safeguards and care . . . before as well as after birth,”[217] allows nations who ratify the CRC to interpret Article 6’s “inherent right to life” clause[218] as applying to fetuses.[219] Regardless of other nations’ interpretations, U.S. law does allow the practice of abortion.[220] Because the CRC does not violate any U.S. abortion or family planning law, its ratification by the United States would not result in any conflict between U.S. domestic policy and international law.
A careful parsing of the CRC reveals that objections to it based on parental rights arguments misconstrue the CRC’s intentions.[221] Critics often claim
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that the CRC’s “participatory” rights grant autonomy rights to children that are best controlled by parents.[222]
Yet, early on, the CRC states that the family is the “fundamental group of society” and that “parents have common responsibilities for the upbringing and development of the child.”[223] Articles 12 and 13 of the CRC focus on children’s right to freedom of expression.[224] However, Article 13 describes specific restrictions to this freedom, including a restriction “[f]or the protection of . . . morals.”[225] The term “morals” is not defined in the CRC, which allows each States Party to interpret the term.
Article 14 grants a child the right to freedom of thought, conscience, and religion.[226] These are rights that are similar to those guaranteed by the U.S. Constitution to every American.[227] Part two of Article 14 guarantees to parents the right to raise their children in accordance with the parents’ religious beliefs, explaining that States Parties “shall respect the right and duties of the parents . . . to provide direction to the child in the exercise of his or her right . . . .”[228]
The past decade has seen a rapid increase in the number of parents who use electronic devices or services to control the content their children see on television and through other mass media forums.[229] Although this may appear to conflict with Article 17 of the CRC, which grants children the right to “access information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health,”[230] Article 17’s intention is only to allow a child to access helpful information. For example, the CRC encourages the media to produce “material of social and cultural bene-fit”[231] and encourages “the development of appropriate guidelines for the protection of the child from information and material injurious to his or her
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well-being.”[232] The CRC makes no suggestion on what the “appropriate guidelines” should be, leaving this task to the States Parties that ratify the CRC.
These provisions make clear that the intention of Article 17 is not to provide children with a justification for demanding access to illicit or distasteful media, but rather to aid children in accessing materials that are beneficial to their development.
Over the last several years, the United States has come under intense scrutiny from domestic and international media and from international governments and their citizens for its policies on U.S. military deployment to Iraq.[233] These policies were criticized as being unilateral and as being developed without any heed to the views of the United States’ historical allies.[234] Due to the U.N.’s opposition to the U.S.-led invasion in Iraq, the relationship between the two bodies deteriorated with U.S. officials deeming the United Nations an irrelevant organization.[235] Although the United States has back-pedaled on this last point in the past year,[236] U.S. ratification of the CRC now would be a well-timed show of support for the United Nations.
The political capital for supporting many of the provisions of the CRC is evident in current domestic legislation. For example, U.S. public opinion polls consistently show a strong desire for improved education and health care systems.[237] Currently, eighteen states have bills in their legislatures to provide for universal health care coverage.[238] The bi-partisan No Child Left Behind Act was signed into law in January 2002 by President Bush, with the goal of providing a quality education to the most underserved children.[239]
The events of the past decade provide further reasons why the time has come for the United States to proclaim its support for the CRC to the international community. The 1990s saw large-scale human rights violations due to intra- and international conflicts in which millions of children lost their lives. Massive human rights violations against children occurred in Bosnia-
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Herzegovena,[240] Chechnya,[241] Rwanda,[242] and the Sudan,[243] among others, in the past decade alone. Given these occurrences, the need for passage of the CRC is as critical as ever. Ratification of the CRC by the world’s only superpower,[244] will give a needed boost to the enforcement of human rights law. This Article argues that the United States’ ratification of the CRC will, as it has done with other treaties, give greater credence and international support to its principles. Ratification will commit the United States and the world to better protection and promotion of the health, welfare, and security of children.
In 1995 the United States signed the CRC, indicating its intent to support the CRC and pursue its ratification. Ten years later, children, domestically and around the world, continue to face human rights violations. Until last year, the United States remained the sole country in the world to condone the practice of execution for capital crimes committed by juveniles.[245] Even after the Supreme Court’s landmark decision in Roper,[246] the United States continues to stand alone as the only self-governed nation to withhold ratification of the CRC. The United States should now reconsider action toward improving children’s human rights. No member of the U.S. Congress has called for ratification of the CRC since 1997. The analysis of legal, political, and social factors above suggests that a window of opportunity has arrived for the United States to demonstrate its commitment to human rights and children’s rights by joining the rest of the world and ratifying the CRC. To that end, this Article proposes that Congress call on the President to seek advice and consent of the Senate for ratification of the CRC. Attached to this Article is a proposed resolution urging the President to seek advice and consent for ratification.[247] The time has come for Congress to follow the original intent behind the U.S. signature on the CRC with ratification, and, in doing so, make a definitive statement about this nation’s commitment to human rights.
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Resolution
Urging the President to submit the Convention on the Rights of the Child to the Senate for its advice and consent to ratification.
Whereas it has been ten years since the United States signed the Convention on the Rights of the Child and children both at home and around the world remain vulnerable and continue to suffer human rights violations every day;[i] and
Whereas there are currently over 73,000,000 children under age eighteen living in the United States and children constitute approximately twenty-five percent of the U.S. population;[ii] and
Whereas more than 1.5 million children have been killed in armed conflict worldwide since 1990;[iii] and
Whereas one in seven children worldwide is denied access to any health care;[iv] and
Whereas every year two million children around the world are exploited as part of the commercial sex industry;[v] and
Whereas every self-governed country in the world, with the exception of the United States, has proclaimed its commitment to upholding and enforcing children’s rights by ratifying the Convention on the Rights of the Child;[vi]
Resolved, that the United States accepts the general principles of Article 37(a). The United States submits the Convention on the Rights of the Child for ratification with reservation for the United States to continue imposing the penalty of life imprisonment without possibility of release to juveniles for certain crimes. The United States, therefore, ratifies the Convention on the Rights of the Child to the extent that it is able to comply with Article 37(a).
Resolved, that it is the sense of the Senate/House of Representatives that the President should promptly seek the advice and consent of the Senate to ratification of the Convention on the Rights of the Child, adopted by the United Nations General Assembly with the support of the United States on November 20, 1989.
[*] Ph.D. Candidate, Department
of Health Policy & Management, Johns Hopkins Bloomberg School of Public
Health; M.P.H., Johns Hopkins Bloomberg School of Public Health, 2005; J.D., New
York University School of Law, 2004; B.A., Yale University, 1999.
[**] M.P.H., Johns Hopkins Bloomberg School of
Public Health, 2005; M.B.A., Johns Hopkins University, 2005; B.A., Dartmouth
College, 2001.
[***] The authors would like to thank Stephen
Teret and the staff of the Harvard Human Rights Journal.
[1]. See, e.g., Editorial, Endangered
Children, Balt. Sun, Jan. 1, 2005, at 12A; Lydia Polgreen, Civilians Bear
Brunt of the Continuing Violence in Darfur, N.Y. Times, Jan. 22, 2005, at
A3; Press Release, Human Rights Watch, Côte d’Ivoire: Ex-Child
Soldiers Recruited for War (Mar. 31, 2005).
[2]. UNICEF is the U.N. body charged with
“advocat[ing] for the protection of children’s rights, to help meet
their basic needs and to expand their opportunities to reach their full
potential.” UNICEF, Mission Statement, http://www.unicef.org/about/who/index_mission.html (last visited Feb. 15, 2006).
[3]. UNICEF, The State of the World’s
Children 2005: Childhood Under Threat (2004).
[4]. Id. at 10.
[5]. Id. at 110–11.
[6]. Id. at 106.
[7]. Id. at 2.
[8]. Child Abuse and Neglect Fatalities:
Statistics and Interventions, Fact Sheet (Nat’l Clearinghouse on Child
Abuse and Neglect, D.C.), 2004, http://nccanch.acf.hhs.gov/pubs/factsheets/fatality.cfm.
[9]. Press Release, U.S. Census Bureau, Income
Stable, Poverty Up, Numbers of Americans With and Without Health Insurance Rise,
Census Bureau Reports (Aug. 26, 2004).
[10]. UNICEF, supra note 3, at vii.
[11]. Convention on the Rights of the Child,
Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].
[12]. See Office of the United Nations
High Comm’r for Human Rights, Status of Ratifications of the Principal
International Human Rights Treaties 10–11 (2004); UNICEF, Frequently Asked
Questions, Convention on the Rights of the Child, http://www.unicef.org/crc/index_30229.html (last visited Feb. 16, 2005) (Somalia has signed but not ratified the CRC.
“Somalia is currently unable to proceed to ratification as it has no
recognized government.”); see also Amnesty Int’l, United
States of America: Rights of Children Must be Respected AI Index: AMR
51/058/2003, Apr. 25, 2003.
[13]. See generally Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. Ct. Rev. 175, 194–95 (“Between the beginning of World War I and the end of
World War II, the United States emerged as a world superpower . . .
.”).
[14]. James Burnham, What is the Purpose of
the United Nations?, Annals Am. Acad. Pol. & Soc. Sci., July 1947, at
1.
[15]. At the end of World War I, the League of
Nations was created to implement the treaties of World War I and “to
promote international cooperation and to achieve international peace and
security.” League of Nations Covenant pmbl.
[16]. Leland M. Goodrich, From League of
Nations to United Nations, Int’l Org., Feb. 1947, at 3.
[17]. See Burnham, supra note 14, at 1. The power structure is evidenced
by the nations that were granted the five permanent seats on the U.N. Security
Council, which constitute one-third of the Security Council’s membership.
The five seats were granted to China, France, Russia [then the Soviet Union of
Socialist Republics], the United Kingdom, and the United States.
[18]. U.N. Charter pmbl.
[19]. Id. (“To reaffirm
faith in fundamental human rights . . . .”); id. art. 1, ¶ 3
(“To achieve international cooperation in solving international problems
of an economic, social, cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion.”).
[20]. See, e.g., International Covenant
on Civil and Political Rights, Dec. 16, 1966, art. 1, 999 U.N.T.S. 171, 173
[hereinafter ICCPR]; International Covenant on Economic, Social and Cultural
Rights, Dec. 16, 1966, art. 1, 993 U.N.T.S. 3, 5 [hereinafter ICESR].
[21]. G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st
plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948).
[22]. Margaret E. Galey, The Universal
Declaration of Human Rights: The Role of Congress, 31 Pol. Sci. & Pol.
524, 524 (1998).
[23]. See, e.g., Amulf S. Gubitz, Note, The U.S. Aviation and Transportation Security Act of 2001 in Conflict With
the E.U. Data Protection Laws: How Much Access to Airline Passenger Data Does
the United States Need to Combat Terrorism?, 39 New Eng. L. Rev. 431, 434 (2005) (“While [a] Declaration is not legally binding on any
nation, authorities have suggested that it is evidence of customary
international law of human rights . . . .”).
[24]. Galey, supra note 22, at 524.
[25]. See Jeffery Huffines, The Role
of N.G.O.s in U.S. Ratification of Human Rights Treaties, 3 ILSA J.
Int’l & Comp. L. 641, 641 (1997). The United States has not yet
ratified the ICESR, the Convention on the Elimination of All Forms of
Discrimination Against Women [hereinafter CEDAW], or the CRC. Office of the
United Nations High Comm’r for Human Rights, supra note 12, at 11.
[26]. CRC, supra note 11, pmbl.
[27]. Jaap E. Doek, The U.N. Convention on
the Rights of the Child: Some Observations on the Monitoring and the Social
Context of Its Implementation, 14 U. Fla. J.L. & Pub. Pol’y
125, 126 (2003).
[28]. Id.
[29]. CRC, supra note 11, pmbl.
[30]. Id. For a discussion of concerns
raised by this conflict, see infra Parts V.C.4 & VI.D.
[31]. Id.
[32]. Id.
[33]. See ICCPR, supra note 20; ICESR, supra note 20; Declaration of the Rights of the Child
of 1959, G.A. Res. 1386, U.N. GAOR, 14th Sess., Supp. No. 16, U.N. Doc. A/4354
(Nov. 20, 1959); Universal Declaration, supra note 21; League of Nations
O.J. Spec. Supp. 28, at 66 (1924).
[34]. Thomas Hammarberg, The U.N. Convention
on the Rights of the Child—And How to Make It Work, 12 Hum. Rts. Q.
97, 100 (1990). Hammarberg defines a provisional right as “the right to
get one’s basic needs fulfilled.” A protective right is defined as
“the right to be shielded from harmful acts or practices.” A
participatory right is defined as “the right to be heard on decisions
affecting one’s own life.” Id.
[35]. CRC, supra note 11, art. 6.
[36]. Id. art. 24.
[37]. Id. art. 27.
[38]. Id. art. 28.
[39]. Id. arts. 11, 19.
[40]. Id. art. 13.
[41]. Id. art. 14.
[42]. Id. art. 15.
[43]. See generally Richard G. Wilkins
et al., Why the United States Should Not Ratify the Convention on the Rights
of the Child, 22 St. Louis U. Pub. L. Rev. 411, 412 (2003) (“First, we
believe that the CRC’s newly minted autonomy rights are neither beneficial
to children nor harmonious with traditional notions of salutary family life . .
. . Second, we have concluded that the CRC’s sweeping reconstruction of
family life lies beyond Congress’ reach.”).
[44]. See, e.g., Patrick F. Fagan, How U.N. Conventions on Women’s and Children’s Rights Undermine
Family, Religion, and Sovereignty, 1407 Heritage Found. Backgrounder 1
(2001); William Saunders, Senior Fellow and Dir., Ctr. For Human Life and
Bioethics, Family Research Council, Address to the World Congress of Families:
The U.N. Threat to the Family: Bad Treaties Make Bad Law (Oct. 26, 2001). For a
discussion of the parental rights arguments raised by family rights activists,
see infra Parts V.C.4 & VI.D.
[45]. CRC, supra note 11, art. 6.
[46]. Id. art. 46.
[47]. Id. art. 47; id. art.
48.
[48]. Id. art. 53.
[49]. Id.
[50]. See, e.g., Maria Grahn-Farley, International Child Rights at Home and Abroad, 30 Cap. U. L. Rev. 657,
704 (2002).
[51]. Ilia B. Levitine, Constitutional
Aspects of an International Criminal Court, 9 N.Y. Int’l L. Rev. 27,
36 (1996).
[52]. CRC, supra note 11; Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465
U.N.T.S. 85 [hereinafter Convention against Torture]; CEDAW, Dec. 18, 1979, 1249
U.N.T.S. 13; International Convention on the Elimination of All Forms of Racial
Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195; ICCPR, supra note 20; ICESR, supra note 20; Convention on the Prevention and
Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter
Genocide Convention]. Some literature also includes the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their
Families as one of the major U.N. human rights treaties. See, e.g.,
Margaret L. Satterthwaite, Crossing Borders, Claiming Rights: Using Human
Rights Law to Empower Women Migrant Workers, 8 Yale Hum. Rts. & Dev.
L.J. 1, 45 (2005).
[53]. The United States has ratified the
Convention against Torture, the ICCPR, the International Convention on the
Elimination of All Forms of Racial Discrimination, and the Genocide Convention. See Office of the United Nations High Comm’r for Human Rights, supra note 12, at 11; Levitine, supra note 51, at 36.
[54]. Louis Henkin, Editorial Comment, U.S.
Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89
Am. J. Int’l L. 341, 341 (1995).
[55]. See id. For a discussion of the
Bricker Amendment, see infra Part V.C.2.
[56]. Henkin, supra note 54, at 348.
[57]. Id. at 346. For a discussion of
the non-self-executing clause, see infra Part VI.B.
[58]. Huffines, supra note 25, at 645.
[59]. Id. This proviso was not
included in the ratification of the Genocide Convention.
[60]. Id.
[61]. See id.
[62]. The three major human rights treaties not
yet ratified by the United States are CRC, supra note 11; CEDAW, supra note 52;
ICESR, supra note 20. See Office of the United Nations High Comm’r for Human Rights, supra note 12, at 11.
[63]. See infra note 115; infra Part VI.B. Qingjiang
Kong, China’s WTO Accession and the ASEAN-China Free Trade Area, 7
J. Int’l Econ. L. 839, 859 n.54 (2004) (“A
‘self-executing’ international treaty can be applied directly
without further legislative or other measures to implement it; a
non-self-executing agreement cannot be directly applied, but must be implemented
by legislative or other measures.”).
[64]. See, e.g., 148 Cong. Rec.
E312–14 (daily ed. Mar. 11, 2002) (statement of Rep. Lee); 146 Cong. Rec.
S1276–77 (daily ed. Mar. 8, 2000) (statement of Sen. Helms); 145 Cong.
Rec. S15115 (daily ed. Nov. 19, 1999) (statement of Sen. Boxer).
[65]. See Malvina Halberstam, United
States Ratification of the Convention on the Elimination of All Forms of
Discrimination Against Women, 31 Geo. Wash. J. Int’l L. & Econ.
49, 50 (1997).
[66]. See id. at 54.
[67]. Id. at 56.
[68]. See Julia Ernst, U.S.
Ratification of the Convention on the Elimination of All Forms of Discrimination
Against Women, 3 Mich. J. Gender & L. 299, 315 (1995).
[69]. See, e.g., CitizenLink: A
Web Site of Focus on the Family, Oppose CEDAW!: The U.N. Convention on the
Elimination of All Forms of Discrimination Against Women, Aug. 16, 2002, http://www.family.org/cforum/feature/a0021811.cfm; Traditional Values Coalition, Convention Endangers Rights of Women, May 10,
2002, http://www.traditionalvalues.org/print.php?sid=285.
[70]. 140 Cong. Rec. D1136, 1139 (daily ed.
Sept. 27, 1994) (statement of Jamison S. Borek).
[71]. 146 Cong. Rec. S3926 (daily ed. May 11,
2000) (statement of Sen. Helms).
[72]. Id.
[73]. Frank E. L. Deale, The Unhappy History
of Economic Rights in the United States and Prospects for Their Creation and
Renewal, 43 How. L.J. 281, 314 (2000).
[74]. ICESR, supra note 20.
[75]. Id. art. 9.
[76]. Id. art. 11.
[77]. Philip Alston, U.S. Ratification of
the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely
New Strategy, 84 Am. J. Int’l L. 365, 367 (1990).
[78]. See id. at 377.
[79]. See id. at 372.
[80]. “[R]atification would make an
important global statement regarding the seriousness of our national commitment
to these issues . . . . [R]atification would have a major impact in ensuring
both the appearance and the reality that our national practices fully satisfy or
exceed international standards.” Harold Hongju Koh, Testimony before the
U.S. Senate Foreign Relations Committee, Regarding United States Ratification of
the Convention on the Elimination of All Forms of Discrimination Against Women
(June 13, 2002).
[81]. CRC, supra note 11.
[82]. Id.
[83]. S. Res. 231, 101st Cong. (1990).
[84]. Id.
[85]. H.R. Res. 312, 101st Cong. (1990).
[86]. H.R. Res. 312, 101st Cong., 2d Sess.
(1990); 136 Cong. Rec. H7685 (daily ed. Sept. 17, 1990); Amendment No. 2626,
101st Cong., 2d Sess., 136 Cong. Rec. S12808 (daily ed. Sept. 11, 1990). The
Senate amendment was adopted despite Senator Helms’s failed attempt to
attach amendment 2628 to Bradley’s amendment. Helms’s amendment
would have defined a child differently than the CRC, as “the unborn
offspring of any human being in every state of biological development.”
136 Cong. Rec. S12806–08 (daily ed. Sept. 11, 1990).
[87]. H.R. Res. 515, 102d Cong. (1992).
[88]. Id.
[89]. S. Res. 352, 102d Cong. (1992).
[90]. H.R. Con. Res. 15, 103d Cong.
(1993).
[91]. S. Res. 70, 103d Cong. (1993).
[92]. 140 Cong. Rec. S5963 (daily ed. May 18,
1994).
[93]. H.R. Res. 253, 103d Cong. (1993).
[94]. 139 Cong. Rec. E2195–96 (daily ed.
Sept. 21, 1993).
[95]. Press Release, The White House, White
House Statement on U.S. Decision to Sign U.N. Convention on Rights of the Child
(Feb. 10, 1995) (on file with The White House Office of the Press Secretary), http://www.ibiblio.org/pub/archives/whitehouse-papers/1995/Feb/1995-02-10-us-to-sign-un-convention-on-rights-of-child.text.
[96]. S. Res. 133, 104th Cong. (1995).
[97]. Id.
[98]. H.R. 3017, 105th Cong. (1997).
[99]. Optional Protocols to the Convention on
the Rights of the Child, G.A. Res. 54/263, Annex II, U.N. GAOR, 54th Sess., U.N.
Doc. A/RES/54/263 (June 26, 2000).
[100]. This protocol states, inter
alia, that “States Parties shall take all feasible measures to ensure
that members of their armed forces who have not attained the age of 18 years do
not take a direct part in hostilities . . . . States Parties shall ensure that
persons who have not attained the age of 18 years are not compulsorily recruited
into their armed forces.” Id. arts. 1–2, at Annex I.
[101]. This protocol states, inter
alia, that “States Parties shall prohibit the sale of children, child
prostitution and child pornography . . . .” Id. art. 1, at Annex
I.
[102]. Press Release, The White House, United
Nations Protocols on Child Soldiers and the Sale of Children, Child Prostitution
and Child Pornography (July 5, 2000).
[103]. H. R. Con. Res. 384, 106th Cong., 2d
Sess. (2000); 146 Cong. Rec. H5762, 5764 (daily ed. July 11, 2000).
[104]. Press Release, The White House,
Message from the President to the Senate on Children’s Rights (July 25,
2000).
[105]. Press Release, U.S. Dep’t of
State, Ratification of Optional Protocols to the Convention on the Rights of the
Child (Dec. 23, 2002).
[106]. United Nations Treaty Collection,
Treaty Reference Guide 4 (1999), http://untreaty.un.org/English/guide.asp#protocols (“An Optional Protocol to a Treaty is an instrument that establishes
additional rights and obligations to a treaty . . . but is of independent
character and subject to independent ratification.”).
[107]. See, e.g., Amendment 2628, supra note 86; Susan Kilbourne, Opposition to U.S. Ratification of the United Nations Convention on the
Rights of the Child, 4 Loy. Poverty L.J. 55 (1998); Kristine K. Nogosek, It Takes a World to Raise a Child: A Legal and Public Policy Analysis of
American Asylum Legal Standards and Their Impact on Unaccompanied Minor
Asylees, 24 Hamline L. Rev. 1, 19 (2000) (“One organization has
based its opposition in the ratification of the Convention on the argument that:
‘[t]he U.N. Convention on the Rights of the Child would make Congress the
national guardians of children, charged with seeking “the best interest of
the child,” and answerable to the United Nations.’”); John F.
Harris, U.S. to Sign U.N. Pact on Child Rights, Wash. Post, Feb. 11,
1995, at A3 (“Some critics said the [CRC] might allow children to sue
their parents or prohibit states from executing juvenile murderers.”); cf. L. Kathleen Roberts, Note, The United States and the World: Changing
Approaches to Human Rights Diplomacy Under the Bush Administration, 21
Berkeley J. Int’l L. 631, 649 (2003) (“In May [2002], at the
U.N. General Assembly Special Session on Children, the U.S. delegation statement
indicated the U.S. commitment to ‘improve the lives of children’
though it made no reference to children’s human rights. According to Human
Rights Watch, it opposed ‘any reference to the Convention on the Rights of
the Child.’”).
[108]. Brad R. Roth, The Enduring
Significance of State Sovereignty, 56 Fla. L. Rev. 1017, 1019 (2004); see John H. Jackson, Sovereignty-Modern: A New Approach to an Outdated
Concept, 97 Am. J. Int’l L. 782, 782 (2003)
(“‘Sovereignty’ also plays a role in defining the status and
rights of nation-states and their officials. Thus, we recognize ‘sovereign
immunity’ and the consequential immunity for various purposes of the
officials of a nation-state. Similarly, ‘sovereignty’ implies a
right against interference or intervention by any foreign (or international)
power.”).
[109]. Bob Barr, Protecting National
Sovereignty in an Era of International Meddling: An Increasingly Difficult
Task, 39 Harv. J. on Legis. 299, 301 (2002).
[110]. Id. at 302.
[111]. Amy M. Steketee, Note, For-Profit
Education Service Providers in Primary and Secondary Schooling: The Drive for
and Consequences of Global Expansion, 11 Ind. J. Global Legal Stud. 171, 171
(2004) (“Innovations in technology, transportation, and
communication during the twentieth century have paved the way for greater global
connectedness and interdependence.”).
[112]. Barr, supra note 109, at 302.
[113]. U.N. Charter pmbl., supra note 18.
[114]. Barr, supra note 109, at 302. Concerns about the
constitutionality of treaties can be traced back to this period. David Golove, Human Rights Treaties and the U.S. Constitution, 52 DePaul L. Rev.
579, 585 (2002) (“Of course, human rights treaties became a source
of sustained constitutional controversy only after World War II with the birth
of the modern human rights era, inaugurated most importantly by the Universal
Declaration of Human Rights, the Genocide Convention, and the two covenants
designed to implement the former in binding treaty fashion.”).
[115]. See, e.g., Michael J. Dennis, Newly Adopted Protocols to the Convention on the Rights of the Child, 94
Am. J. Int’l Law 789, 796 n.42 (2000) (explaining that CRC was not sent to
Senate for advice and consent because “many senators had expressed strong
concerns that the Convention would infringe on U.S. sovereignty . . . .”);
Deborah M. Weissman, The Human Rights Dilemma: Rethinking the Humanitarian
Project, 35 Colum. Hum. Rts. L. Rev. 259, 311 (2004)
(“[C]oncerns that multilateral agreements might infringe on U.S.
sovereignty have resulted in an unwillingness to ratify a number of human rights
treaties.”); cf. Rebecca J. Cook, Reservations to the Convention
on the Elimination of All Forms of Discrimination Against Women, 30 Va. J.
Int’l L. 643, 650 (1990) (“Treaties on human rights are
likely to jeopardize the sovereignty of states parties without at the same time
offering them a commercial advantage that may render a compromise of sovereignty
worthwhile.”); Michael Ignatieff, America the Mercurial, Legal
Aff., Mar./Apr. 2005, at 68.
[116]. T. Alexander Aleinikoff, Thinking
Outside the Sovereignty Box: Transnational Law and the U.S. Constitution, 82
Tex. L. Rev. 1989, 1992–93 (2004).
[117]. Jenik Radon, Sovereignty: A
Political Emotion, Not a Concept, 40 Stan. J. Int’l L. 195, 202–03 (2004); see Bruce Ackerman & David Golove, Is
NAFTA Constitutional?, 108 Harv. L. Rev. 799, 803 (1995) (“[In the 1980s] NAFTA became a symbol of new-fangled internationalist
entanglements that threaten to compromise [U.S.]
‘sovereignty.’”); cf. Samuel P. Baumgartner, Is
Transnational Litigation Different?, 25 U. Pa. J. Int’l Econ.
L. 1297, 1375–76 (2004) (“Despite conflicting empirical claims
regarding the status of actual state autonomy, the problem arises from a
normative concept of sovereignty that no longer seems practicable in a world in
which domestic lawmaking is increasingly constrained by international regimes,
such as the WTO, NAFTA, and various human rights treaties, some of which may be
considered to have constitution-like effects.”).
[118]. Radon, supra note 117, at 203.
[119]. Id. at 204.
[120]. Id.
[121]. Mark Tushnet, Transnational/Domestic Constitutional Law, 37 Loy. L.A. L. Rev. 239, 253 (2003).
[122]. Erwin Chemerinsky, Empowering
States When It Matters: A Different Approach to Preemption, 69 Brook. L.
Rev. 1313, 1328 (2004).
[123]. Judith Resnik, Categorical
Federalism: Jurisdiction, Gender, and the Globe, 111 Yale L.J. 619, 665–66 (2001) (“Although the Bricker Amendment did not become
law, some believe it has become fact—through practices of the Senate that
consistently limit the application of international laws by reference to
federalism.”); Peter J. Spiro, The States and International Human
Rights, 66 Fordham L. Rev. 567, 575 (1997) (“At the same time
that the United States finally moved on the ICCPR and one other major human
rights convention, others remain stalled at least in part as a result of
federalism concerns.”).
[124]. Missouri v. Holland, 252 U.S. 416, 431
(1920).
[125]. Id. at 432–33.
[126]. Id. at 435.
[127]. Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1868
(2005).
[128]. Compare id. at 1868
(“This Article endeavors to prove that Missouri v. Holland is
wrongly decided.”) and Barr, supra note 109, at 319 (“Remarkably, the
ruling is still valid law, even though there is no way to view this holding
other than an illegitimate amendment of the Constitution.”) with Golove, supra note 114, at 586–87 (“[Missouri v. Holland] is strongly supported
by both textual and historical considerations. Although always controversial,
the ruling in Missouri is consistent with both the original understanding
of the treaty power and with the dominant understandings throughout most of U.S.
history.”); Peter J. Spiro, supra note 123, at 576 (1997) (“One might go so
far as to question whether the treaty power now encompasses a federal capacity
to overcome state laws in spheres of traditional state authority, at least not
on the basis of international human rights treaties. The Supreme Court, of
course, found such a federal power in its 1920 decision in Missouri v.
Holland, and one would have no reason to suppose that
the Court would depart from that ruling if it were to reconsider the
issue.”).
[129]. John R. Worth, Note, Globalization
and the Myth of Absolute National Sovereignty: Reconsidering the
“Un-Signing” of the Rome Statute and the Legacy of Senator
Bricker, 79 Ind. L.J. 245, 253 (2004).
[130]. See, e.g., Barr, supra note 109, at 320; Golove, supra note 114, at 587.
[131]. It was later discovered that Bricker
and his colleagues “were primarily concerned with the potential impact
that the UN human rights conventions might have on racial segregation in the
South.” Worth, supra note 129, at 254.
[132]. Henkin, supra note 54, at 348.
[133]. Id. at 348–49.
[134]. Susan Kilbourne, Student Research, The Convention on the Rights of the Child: Federalism Issues for the United
States, 5 Geo. J. on Fighting Poverty 327, 327 (1998).
[135]. CRC, supra note 11, arts. 9, 10.
[136]. Id. art. 20.
[137]. Id. arts. 34, 39.
[138]. John Quigley, U.S. Ratification of
the Convention on the Rights of the Child, 22 St. Louis U. Pub. L. Rev.
401, 405 (2003).
[139]. See, e.g., Howard Davidson, A Model Child Protection Legal Reform Instrument: The Convention on the
Rights of the Child and Its Consistency with United States Law, 5 Geo. J. on
Fighting Poverty 185, 187 (1998); Michelle Z. Hall, Convention on the
Rights of the Child: Has America Closed its Eyes?, 17 N.Y.L. Sch. J. Hum.
Rts. 923, 927 (2001).
[140]. CRC, supra note 11, art 37(a). For a discussion of the
manner in which the United States should treat the CRC’s prohibition on
lifetime imprisonment for individuals convicted of capital crimes while they
were juveniles, see infra note 213.
[141]. See, e.g., Carrie Martin, Spare the Death Penalty, Spoil the Child: How the Execution of Juveniles
Violates the Eighth Amendment’s Ban on Cruel and Unusual Punishment in
2005, 46 S. Tex. L. Rev. 695 (2005).
[142]. Roper v. Simmons, 543 U.S. 551
(2005).
[143]. See, e.g., David P.
Stewart, Ratification of the Convention on the Rights of the Child, 5
Geo. J. on Fighting Poverty 161, 167 (1998); Hall, supra note 139, at 926.
[144]. 262 U.S. 390 (1923).
[145]. Id. at 397.
[146]. Id. at 626.
[147]. 268 U.S. 510 (1925).
[148]. Id. at 530.
[149]. Id. at 534–35.
[150]. The rights established in Meyer and Pierce were tempered by the Court’s decision in Prince v.
Massachusetts in which the Court struck down a Massachusetts law that
forbade girls under the age of eighteen from selling periodicals in public
places. 321 U.S. 158, 160–61 (1944). Although the Court recognized
“[t]he rights of children to exercise their religion, and of parents to
give them religious training and to encourage them in the practice of religious
belief,” the Court found that “the state has a wide range of power
for limiting parental freedom and authority in things affecting the
child’s welfare; and that this includes, to some extent, matters of
conscience and religious conviction.” Id. at 165, 167. The Court
summarized its analysis by stating that “[p]arents may be free to become
martyrs themselves. But it does not follow that they are free, in identical
circumstances, to make martyrs of their children before they have reached the
age of full and legal discretion when they can make that choice for
themselves.” Id. at 170.
[151]. 455 U.S. 745 (1982).
[152]. Id. at 747.
[153]. Id. at 755.
[154]. Id. at 747–48.
[155]. See, e.g., Kevin Mark Smith, The United Nations Convention on the Rights of the Child: The Sacrifice of
American Children on the Altar of Third-World Activism, 38 Washburn L.J. 111
(1998); Wilkins et al., supra note 43, at 417.
[156]. Wilkins et al., supra note 43, at 417.
[157]. Smith, supra note 155, at 125–26.
[158]. Wilkins et al., supra note 43, at 417.
[159]. Hall, supra note 139, at 926 (“[T]he opposition
believes that the CRC would undermine parental authority and threaten the
parent-child relationship.”).
[160]. Wilkins et al., supra note 43, at 434.
[161]. Cf. Smith, supra note 155, at 122 (“It is cardinal with us
that the custody, care, and nurture of the child reside first in the parents,
whose primary functions and freedom include preparations for obligations the
state can neither supply nor hinder.”).
[162]. S. Res. 984, 104th Cong. (1995); H.R.
1946, 104th Cong. (1995).
[163]. S. Res. 984, 104th Cong. pmbl.
(1995).
[164]. Id. § 4.
[165]. For a discussion of previous U.S.
attempts to ratify the CRC, see supra Part V.A.
[166]. For a discussion of these concerns,
see supra Part V.C.1.
[167]. Tushnet, supra note 121, at 262.
[168]. Aleinikoff, supra note 116, at 1994.
[169]. Tushnet, supra note 121, at 261.
[170]. Cf. Stephen Breyer, Associate
Justice, Supreme Court of the United States, Keynote Address at the Proceedings
of the Ninety-Seventh Annual Meeting of The American Society of International
Law: The Supreme Court And The New International Law (Apr. 4, 2003)
(“Ultimately, I believe that the ‘comparativist’ view that
several of us have enunciated will carry the day—simply because of the
enormous value in any discipline of trying to learn from the similar experience
of others.”); Sandra Day O’Connor, Keynote Address at the
Proceedings of the Ninety-Sixth Annual Meeting of the American Society of
International Law (Mar. 16, 2002) (“Although international law and the law
of other nations are rarely binding upon our decisions in U.S. courts,
conclusions reached by other countries and by the international community should
at times constitute persuasive authority in American courts.”).
[171]. 539 U.S. 306, 342 (2003)
[172]. Id. at 342 (Ginsburg, J.,
concurring) (citation omitted); see also Ruth Bader Ginsburg, Looking
Beyond Our Borders: The Value of a Comparative Perspective in Constitutional
Adjudication, 40 Idaho L. Rev. 1, 1 (2003) (“National,
multinational, and international human rights charters and tribunals today play
a key part in a world with increasingly porous borders. My message in these
remarks is simply this: We are the losers if we do not both share our experience
with, and learn from others.”).
[173]. 539 U.S. 558 (2003).
[174]. Id. at 576–77 (citations
omitted). Bowers v. Hardwick held that a Georgia sodomy statute did not
violate any fundamental right of homosexual adults. 478 U.S. 186 (1986).
[175]. Roper, 543 U.S. 551. For a
discussion of the Roper opinion, see infra Part VI.B.
[176]. Id. at 578.
[177]. U.S. Const. amend. X (“The
powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the
people.”).
[178]. For a discussion of Missouri v.
Holland, see supra Part V.C.2.
[179]. Connie de la Vega, Human Rights and
Trade: Inconsistent Application of Treaty Law in the United States, 9 UCLA
J. Int’l L. & Foreign Aff. 1, 2 (2004) (stating that
“federalism constraints were raised first to prevent and later severely
limit the [United States’] involvement in and application
of human rights treaties through the use of
reservations, understandings, and declarations (RUDs)”).
[180]. Id. at 3.
[181]. Henkin, supra note 54, at 341.
[182]. Sanford Fox, To Ratify the
Convention, 5 Geo. J. on Fighting Poverty 267, 267 (1998).
[183]. Henkin, supra note 54, at 346.
[184]. Kong, supra note 63, at 859 n.54.
[185]. Henkin, supra note 54, at 346.
[186]. See id. at 349–50; cf. Robin H. Gise, Note, Rethinking McClesky v. Kemp: How U.S.
Ratification of the International Convention on the Elimination of All Forms of
Racial Discrimination Provides a Remedy for Claims of Racial Disparity in Death
Penalty Cases, 22 Fordham Int’l L.J. 2270, 2307 (1999)
(“Many commentators oppose the non-self-executing declaration on legal and
policy grounds. First, some scholars note that non-self-executing declarations
are inconsistent with Article VI of the U.S. Constitution, which states that
treaties are the supreme law of the land. Second, commentators argue that the
non-self-executing declaration nullifies the effect of [a treaty] in the United
States by preventing U.S. citizens from [bringing] causes of action under the
[treaty].”).
Some opponents of the non-self-executing clause have suggested a compromise
similar to the one reached with Senator Helms during the debate over the
Convention against Torture where a bipartisan compromise reduced the sovereignty
reservation to a proviso to be sent to all States Parties that stated that
“no legislation or action is required that is prohibited by the U.S.
Constitution.” Huffines, supra note 25, at 645.
[187]. See supra Part V.C.2.
[188]. 492 U.S. 361 (1989), overruled in
part by Roper v. Simmons, 543 U.S. 551.
[189]. Id. at 380. In 1988, in Thompson v. Oklahoma, a plurality of the Court held that capital
punishment could not be used against anyone who was less than sixteen years old
at the time they committed the crime in question. 487 U.S. 815 (1988).
[190]. 536 U.S. 304 (2002). Atkins overturned the Court’s previous decision, Penry v. Lynaugh, which
held that the Eighth Amendment did not require mentally retarded offenders to be
exempt from death sentences. 492 U.S. 302 (1989).
[191]. Atkins, 536 U.S. at 321.