"The primary purposes of ratification of the Convention on the Rights of the Child (CRC) are to 1) educate the public about international standards for the welfare and treatment of children, 2) use those standards to improve the lives of children, and 3) make public and private actors involved with child welfare more accountable. The U.S. lags significantly behind many comparator states in statistical indicators of child welfare, with higher rates of child mortality, maternal mortality and child (family) poverty. These problems would be given greater attention and oversight if we ratified the CRC.
The failure of the U.S. to ratify the Convention on the Rights of the Child has been the result of a concerted, negative misinformation campaign by a small group, as well as a lackluster and disorganized approach toward ratification on the part of the majority, people and organizations committed to children’s human rights. The failure to ratify has hampered U.S. effectiveness and reputation in the international community and reduced opportunities for U.S. attorneys to contribute to the development of international human rights law.
An emphasis on multilateralism in foreign affairs, more dialogue about deterioration in children’s well-being and the expansion of networks to advance children’s rights have provided new momentum for ratification. A broadly-based, national campaign is growing, with approximately 500 organizations supporting ratification of the CRC. A sample of the types and names of organizations is appended. The National Council of Juvenile and Family Court Judges’ resolution supporting ratification is an important recent development.
I. Overview of ratification process in the Senate
At times Congress adopts implementing laws as part of the process toward ratification of a treaty. Consideration of ratification requires an assessment of whether existing statutes conform with the principles expressed in the articles of a human rights treaty.
It is U.S. practice to handle potential conflict areas by adopting new laws to fill in the gaps and, at the time of consent to ratification, for the Senate to adopt understandings and declarations, and more rarely, reservations. It is highly unlikely that the U.S. law on children’s rights is underdeveloped or that the U.S. is legally unprepared to ratify the Convention on the Rights of the Child.
All the other 192 U.N. member states except Somalia and the U.S. have ratified the CRC. The U.S. has already ratified (eff. 1/23/2003) the two Optional Protocols to the CRC, the Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. For those protocols, implementing legislation was determined to be unnecessary.
Interestingly, one of the reasons raised in the past for not ratifying the CRC was the impact of Art. 38(3), concerning recruitment of youth under age 18 into the military services and the practices relating to 17 year old recruits. But no longer can this be a reason because this has already been discussed in periodic reports submitted by the U.S. to the Committee on the Rights of the Child under the Armed Conflict Protocol (see below).Notes
Human rights treaties, such as the CRC are not considered self-executing (although the principles of a human rights treaty may be argued to constitute principles of customary law or jus cogens norms, separate bases for enforceable obligations.) The Supreme Court may refuse to impose sanctions for violation of an international obligation even where ratification has occurred. See Medellin v Texas, 552 U.S. 491(2008). Practically, ratification of the CRC would not provide a new cause of action or provide Washington attorneys with a new basis for litigation in family law disputes. But it could provide additional supporting reasons in arguments and motions. It would also allow comparison with authoritative international standards. Other countries’ adherence to the CRC standard of Art. 37(a) (no lifetime imprisonment for child offenders for non-homicide crimes) influenced the decision in Graham v Florida, 560 U.S.___ (2010). There the court referred to an international standard of decency supporting the Constitutionally-based holding of lifetime imprisonment as violative of the 8th Amendment prohibition on cruel and unusual punishment. The court cited its previous decision in Roper v Simmons, 543 U.S. 551 (2005), which involved U.S. deviation from the international standard prohibiting the death penalty for crimes committed by juveniles, also addressed by CRC Art. 37(a). Arguably, ratification of the CRC would make for a clearer jurisprudence.
II. State statutes
The CRC could not be the basis for judicial overturning of existing state and federal statutes. There is no external enforcement mechanism in the treaty. Enforcement of human rights standards, such as the requirement that under Art. 3(1) that the “best interests of the child shall be a primary consideration” in a range of proceedings, would depend on our existing judicial and administrative systems and our domestic law.
Post ratification, it is possible that state law could come into conflict with federal law. Treaty obligations are part of federal law generally binding on states under the Supremacy Clause, Art. VI, Sec.2 of the U.S. Constitution. For example, if Arizona passed a law that deprived a child born in Arizona of that child’s right to a birth certificate as a means of denying U.S. citizenship where the child’s parents lacked legal U.S. immigration status, that provision could violate both Art. 7 of the CRC and federal immigration law. The right to sue would, however, depend on statutory law. The CRC itself couldn’t serve as a basis for a right of action. It is also possible at some time in the future, the U.S. could ratify a human rights treaty or protocol which permitted U.S. citizens access to an international tribunal once domestic remedies were exhausted, and the CRC could conceivably be used in such a context. However, that day has not arrived.
II. Indirect impact on the legal status of children and families
Article 43 of the CRC expresses an obligation to engage in periodic reporting, to account for compliance to an international body of experts. This is similar to that found in other human rights treaties already ratified by the U.S., such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of all Forms of Racial Discrimination. The reports draw on information accumulated and quantified at local, city, county, state and federal levels. The DOS legal adviser is encouraging greater involvement at all levels of government to comply with U.S. reporting obligations under the human rights treaties. See Harold Hongju Koh, Legal Adviser, DOS, Memorandum for State Governors, 1/20/2010 RE: U.S. Human Rights Treaty Reports, attached. New guidelines for reporting are being developed to assist state and local bodies.
For the CRC, periodic reporting is on a five (5) year cycle to an international group of ten (10) experts, the Committee on the Rights of the Child. Because the U.S. has already ratified the two Optional Protocols to the CRC, it has already come before the Committee to make both its original reports and, on 1/22/10, its first periodic reports on compliance with the articles of the protocols. After making the initial report under the Optional Protocol on the Involvement of Children in Armed Conflict to the Committee, the U.S. supplemented its information by reporting to the Committee that it was extending the Roper v. Simmons abolition on the use of the death penalty for juveniles to the military justice system. Committee on the Rights of the Child, 48th Session, CRC/C/OPAC/USA/CO/1, page 2, attached. Congress has also adopted new laws to expand its commitments under the Sale, Prostitution and Pornography Protocol and presented those to the Committee in the periodic reports.
Ratification of the CRC would mean that all the obligations related to the human rights of children under the CRC and the optional protocols would eventually be addressed together, providing an opportunity for a comprehensive and unified system of reporting and oversight in our decentralized system. From the standpoint of practitioners, the periodic human rights reporting systems would provide another formal way to publicize legal violations and develop a better system of accountability. One area of probable change would be in the requirement for public bodies to generate more targeted data and statistics. The periodic reports would include the public debate and commentary on compliance with standards, areas in which lawyers involved in family and children’s issues will have important roles to play.
Where violations exist, the human rights reporting obligation and oversight by an international impartial body can provide the ability for practitioners and other civil society stakeholders to use “mobilization of shame” as a way to make legal change .
 Child welfare, family and youth: Child Welfare League of America, Children’s Defense Fund, Casey Family Services, African-American Family Congress, Alliance for Child Survival, Big Brothers, Big Sisters International, Girl Scouts of the U.S.A., Camp Fire, Inc., YMCAMore Information
Legal: American Bar Association, the National Juvenile Justice Network, Lawyers Committee for Human Rights, International Association of Women Lawyers, American University, Washington College of Law, Willamette University College of Law, Center of International Human Rights & Children and Family Justice Center, School of Law, Northwestern University, Rutgers University School of Law, National Council of Juvenile and Family Court Judges
Education: National Association for the Education of Young Children, National School Boards Association, Council of Chief State School Officers, AAUW, Department of Psychology of Columbia University, Texas State University, Department of Family and Consumer Sciences, Department of International Affairs, Lewis and Clark College
Health: March of Dimes, National Coalition for Hispanic Health and Human Services, American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, American Psychological Association, Children, Youth and Families Office, National Association of Social Workers, American Nurses Association, Physicians for Human Rights, National Association of Children’s Hospitals
Human rights: Amnesty International, National Social and Economic Rights Initiative, Minnesota Advocates for Human Rights, Hawaii Institute for Human Rights, Human Rights Watch
Humanitarian/Development: American Red Cross, Save the Children, CARE, Mercy Corps, Foster Parents Plan, World Vision (Child Sex Tourism Prevention Project), Oxfam, Hmong National Development, Inc., RESULTS
Religious: Catholic Charities USA, B’nai B’rith International, American Baptist Churches, Baha’is of the US, Church World Service, InterChurch Medical Assistance, American Friends Service Committee, Lutheran Immigration and Refugee Service, Mennonite Central Committee, National Council of Churches of Christ in the USA, Presbyterian Church USA, United Methodist Church, Women’s Division, AME Church, Women’s Missionary Society
Unions: AFL-CIO Executive Council, American Federation of Teachers, United Food and Commercial Workers, Nine to Five/Working Women, National Education Association
Miscellaneous/community/general: NAACP Washington Bureau, Soroptimists, Kiwanis, AARP, Goodwill Industries, National Consumers League, American Veterans Committee, Santa Cruz County Board of Supervisors, UNA-USA, UNICEF, National Council of Negro Women
 Phrase attributed to the late Frank Newman (Dean, University of California-Berkeley, Boalt Hall School of Law, former Chief Justice of the California Supreme Court)