Posted by Eugene Volokh:
United Nations Convention on the Rights of the Child:
http://volokh.com/archives/archive_2009_08_02-2009_08_08.shtml#1249501956
So having yet again heard about how the U.S. is the only U.N. member,
other than Somalia, not to ratify the [1]U.N. Convention on the Rights
of the Child, I decided to read the thing. This led me to be
tentatively pleased that we haven't signed it. (I say tentatively
because my view is based on just reading the treaty; it's possible
that I've misread parts or missed important counterarguments, so I'd
be happy to be enlightened in the comments about any errors I may have
made.)
I think that we generally shouldn't sign treaties unless we're
prepared to comply with them and be bound by them for the future, and
I think there are many provisions that I think we shouldn't accept.
Nor do I see any strong reasons to adopt this particular treaty. I
don't see the treaty as materially furthering justice and human rights
in the U.S.; our legal treatment of children is hardly perfect, but I
don't think the provisions would help it. Nor do I see our signing the
treaty as likely to materially advance decent treatment by other
countries. While I'm sure that some people are mocking us for not
signing it, I doubt that our signing it or not would actually
materially affect foreign regard for us in any way that's useful to
us.
And while in some situations I think it's quite proper to sign
treaties that we have no desire to comply with, if some important
national security concern calls for it -- I certainly don't think that
compliance with treaties and honesty in international relations are
inexorable commands -- I think the presumption should be not to sign
things unless we're willing to comply with them. (That the treaty
won't be self-executing, and thus generally doesn't become domestic
law until there's affirmative Congressional action to implement it,
doesn't change the analysis: We would still be obligated by our
promise to enact such implementing statutes, so we shouldn't sign
unless we're prepared to do so.)
Here are a few of my specific objections:
1. Article 37(a) would not only ban capital punishment for crimes
committed when the criminal was under 18, but also bans life
imprisonment without the possibility of parole in such cases. I
highly doubt that such a ban is wise, and while I'm open to being
convinced, I certainly don't think that we should accept it as a
binding obligation that covers all the states.
2. Article 3, section 1, says that "In all actions concerning
children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a
primary consideration." Yet American law rightly provides that
some restrictions on parental rights can't be done under a mere
"best interests" standard. Parental rights, for instance, can't be
entirely terminated unless the parent is outright unfit. Courts
can't consider a parent's interracial relationship in a child
custody decision (that's Palmore v. Sidoti) even if they conclude
that the relationship in some measure undermines the child's best
interests, for instance by risking social harassment of the child.
Many courts have said that courts can't restrict parents'
religious teachings on the grounds that the teachings are against
the child's "best interests," unless the teachings are likely to
be seriously harmful to the child. And that's even in divorce
cases, where the best interests standard usually applies -- courts
are even more constrained in restricting parental teachings when
the family is intact.
It's possible that all these constraints on the best interests
standard would be trumped by article 3. Perhaps this can be evaded
by saying that best interests need only be "a" primary
consideration, and not the only one (though how can it be a
"primary" consideration if parental rights often trump it?). But
that's far from clear to me, and it seems to me better not to
accept such a provision rather than finding a way of evading it.
3. Article 3 would also apply to "private social welfare
institutions," even when no risk of imminent physical or serious
psychological harm to the child would take place. Presumably such
social welfare institutions would have to be barred from instead
making the parents' preferences, or the institution's and parents'
shared religious views, the primary factor.
4. Under article 12, section 1, sufficiently old and mature children
would have to have the legal right "to express [their] views
freely in all matters affecting the child," and to have "due
weight" given to those views. Whether that's sensible or not, I
don't think that the entirety of the U.S. should be bound to such
a rule as a matter of international commitment.
5. Article 14, section 3 might overturn Employment Division v. Smith
in some measure, by providing that "Freedom to manifest one's
religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety,
order, health or morals, or the fundamental rights and freedoms of
others." If "manifest" is read as "act based on" and not just
"publicly speak about," that would mandate that all states adopt
at least a limited religious exemption regime. While I support
states' imposing such regimes as a matter of [2]statute, which can
be modified by a later state statute -- when the legislature
disagrees with courts about what is necessary to protect public
safety and the rights of others -- I oppose the federal
government's imposing such regimes as a matter of treaty, which
can't be modified by each state legislature.
6. Article 24, section 3, article 27, and possibly article 18,
section 3 seem to require that governments provide certain kinds
of welfare state benefits, such as free assistance for disabled
children. Though American governments likely provide most such
benefits already, I don't think we should commit the federal
government and state governments to providing such benefits.
Rather, I think we should be free to have such benefits ebb and
flow with domestic public opinion. I'd say the same about
compulsory education rules as well as government-funded primary
education, which article 28 requires, though that's likely
hypothetical, since compulsory free primary education is so
entrenched in American life.
In any case, these are just some of the concerns I have. I suppose we
could avoid them by signing the treaty with various reservations. But
again that strikes me as valuable only when there's real value to us
in signing the treaty (especially when there would have to be many
reservations).
Note: There's [3]a famous and longstanding dispute about whether it's
constitutional for Congress, acting pursuant to a treaty, to do things
that it would otherwise lack the power to do (such as mandate
religious exemptions from all state and local generally applicable
laws). But even if Congress couldn't do this, as a matter of U.S.
constitutional law, signing the treaty would obligate it to do all it
can -- for instance, to propose a constitutional amendment that would
let the nation comply with its treaty obligations, or (more likely) to
pressure states into complying with the treaty through threat of loss
of funding. So the objections I raise above are present regardless of
one's view on this Congressional power question.
References
1. http://www2.ohchr.org/english/law/crc.htm
2. http://www.law.ucla.edu/volokh/relfree.htm
3. http://volokh.com/posts/1082397532.shtml
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
