Harvard Law analysis of UN CRC

VI. Refutation of Views Opposing the Convention on the Rights of the Child

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.
A. Responses to Sovereignty Concerns

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.
B. Responses to Federalism Concerns

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 h; 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]
C. Responses to Reproductive and Family Planning Concerns

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.
D. Responses to Parents’ Rights Concerns

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.
VII. Why Ratify Now?

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.
VIII. Conclusion

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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Appendix

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).