UNITED STATES: Is Obama's win also a victory for children's rights?

[5 November 2008] - When Barack Obama takes office as President of the United States in January, the Convention on the Rights of the Child (CRC) may finally have a much needed supporter in office.

Along with Somalia, the United States is one of two countries that have yet to ratify the CRC.

The US is no stranger to the Convention. Its delegation participated heavily in the drafting process through the 1980s, and the the government formally signed the CRC under President Bill Clinton on 16 February 1995. However, both President Clinton and President Bush failed to initiate the ratification process, which would have bound the US to the Convention's provisions (what is the difference between ratification and signature?).

As a result, over the past 14 years, the Convention has remained merely aspirational for the world's leading power, with a binding legal role in the United States legislature remaining elusive.

Positive steps

President-elect Obama's inauguration may bring this period of inaction to an end. Obama has already indicated his intention to bring the US back to human rights table, with discussions of children's rights on the agenda.

When asked whether he would seek ratification of the CRC in the Presidential Youth Debate, Obama expressed, at least, some support for that goal: "It's important that the United States return to its position as a respected global leader and promoter of Human Rights. It's embarrassing to find ourselves in the company of Somalia, a lawless land. I will review this and other treaties and ensure that the United States resumes its global leadership in Human Rights."
(video available at http://debate.waldenu.edu/video/question-12/)

In contrast, the Republican Party's 2008 election platform included the following clause:

'We strongly support the long-held policy of the Republican Party known as the “Mexico City policy,” which prohibits federal monies from being given to non-governmental organisations that provide abortions or actively promote abortion as a method of family planning in other countries. We reject any treaty or agreement that would violate those values.

'That includes the UN convention on women’s rights, signed in the last months of the Carter Administration, and the UN convention on the rights of the child.'

Obama has also recently sponsored legislation that would call on the United States to act in concert with the international community to reduce child mortality, guarantee education, and provide "enhanced prospects" for all children. (Global Poverty Act, http://www.thomas.gov/cgi-bin/query/D?c110:3:./temp/~c1100rVlQa::).

The Act, currently under consideration in the Senate, calls on the President to establish and implement a strategy for working towards the reduction of poverty worldwide. This strategy could certainly involve ratification of several international conventions including the CRC.

Uphill battle

Obama may bring hope for change, but he may also face an uphill battle. In recent several decades, the United States record on accession to Human Rights treaties has looked spotty, to say the least, and the ratification process is no simple matter.

Typically, treaties are first reviewed by the State Department, which prepares documents for submission to the Senate. The President then reviews these documents before formal submission to the Senate, which may then hold hearings to address public concerns and any need for special implementation. A recommendation for ratification requires the approval of two thirds of the Senate, a much higher bar than the traditional party majority vote.

Despite these hurdles, United States ratification of the CRC is within reach. Although the CRC was never submitted for ratification, its two Optional Protocols (what is this?) met with success. In fact, the Senate voted unanimously to support the Optional Protocol to the CRC on the involvement of children in armed conflict, and the Protocol was officially ratified just over two years after signature.

The Optional Protocol on the sale of children, child prostitution and child pornography was also ratified in 2002.

With this in mind, there is hope that Obama awakens the CRC from its long hibernation and begins the ratification process early next year. Perhaps by the end of his term, there will only be one country missing from the rolls of the Convention.

What does ratification mean for the US?

Ratification is a powerful statement of support for a convention both domestically and internationally, and the United Nations would surely welcome US ratification of the CRC. However, in many ways, ratification would be only the first step in guaranteeing children in the United States the rights to which they should be entitled under the Convention.

Generally, ratified treaties become the "supreme law of the land" under the Supremacy Clause of the United States Constitution (for a general overview, see here). The picture is more complicated, though, as not all treaties are treated equally.

When the United States ratifies treaties, it decides whether treaties will be "self-executing" or "not self-executing." Treaties that are deemed "self-executing" are given direct force in United States law and may be enforced by the courts from the date of ratification. Treaties that are deemed "not self-executing" are not directly enforceable by the courts and do not create binding obligations on the government.

To implement treaties that are "not self-executing", the federal and state governments must pass legislation to bring their laws into compliance with the treaty provisions. Once this "implementing legislation" takes effect, the courts may then enforce the domestic laws and regulations that mirror the rights and obligations in "not self-executing" treaties. (for a brief discussion of treaties in United States law from the United Nations Department of Economic and Social Affairs, see here, Section 1.4 "International Law in Municipal Law").

The United States government has been notoriously slow in implementing human rights treaties, and has to date adopted the view that human rights treaties are "not self-executing." It is likely, then, that if the United States does ratify the CRC, it will be with an understanding that the treaty is "not self-executing."

Notably, the Campaign for US Ratification of the CRC - a US-based coalition of organisations and individuals in favour of ratification - anticipates that the CRC will be "not self-executing" and that "each US state would be responsible for developing and executing its own legislation." (For more information, visit here).

Unfortunately, the "not self-executing" label applied to human rights treaties and the corresponding hurdles and delays in implementation have led some to believe that ratifying these treaties will have little effect on United States law.

While this frustration is understandable, ratification of the CRC would be an invaluable affirmation of the rights of children not only in the United States, but in every country. It would provide a guide for children's rights legislation on federal and state levels, and would finally bring the United States back into the international child rights fold. With this in mind, it is hoped that the upcoming change in the United States government will usher in a new era of human rights, international responsibility, and the long overdue ratification of the CRC.

Further information

Owner: Patrick Geary

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