The Volokh Conspiracy - United Nations Convention on the Rights of the Child:

So having yet again heard about how the U.S. is the only U.N. member, other than Somalia, not to sign the 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 and ratified 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 ratify 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 ratifying the treaty as likely to materially advance decent treatment by other countries. While I'm sure that some people are mocking us for not ratifying it, I doubt that our ratifying 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 ratify 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:

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.
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.
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.
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.
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 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.
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 ratifying 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 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, ratifying 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.

UPDATE: I originally cast the post in terms of signing the treaty, since if the President signs the treaty he's presumably committing himself to trying to get the Senate to ratify it. To be more precise, I've mostly changed "sign" to "ratify," since it is indeed the legally operative ratification that strikes me as especially troubling. But for my purposes there's no distinction between whether we should sign the treaty and whether we should ratify it.

	[Eugene Volokh, August 5, 2009 at 3:52pm] Trackbacks United Nations Convention on the Rights of the Child: So having yet again heard about how the U.S. is the only U.N. member, other than Somalia, not to sign the 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 and ratified 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 ratify 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 ratifying the treaty as likely to materially advance decent treatment by other countries. While I'm sure that some people are mocking us for not ratifying it, I doubt that our ratifying 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 ratify 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: 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. 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. 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. 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. 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 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. 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 ratifying 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 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, ratifying 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. UPDATE: I originally cast the post in terms of signing the treaty, since if the President signs the treaty he's presumably committing himself to trying to get the Senate to ratify it. To be more precise, I've mostly changed "sign" to "ratify," since it is indeed the legally operative ratification that strikes me as especially troubling. But for my purposes there's no distinction between whether we should sign the treaty and whether we should ratify it.