With 196 states party, the U.N. Convention on the Rights of the Child (CRC) is currently the most ratified international human rights law instrument (Tobin, 2019; UNICEF, n.d.). Although it is almost universally adopted, one state glaringly defies worldwide consensus. Why has the United States of America (USA) failed to ratify the most successful human rights convention to date?
Adoption, ratification and entry into force
The CRC is a document that contains a number of rules that bind states in respect of children. However, in order to understand why it is binding on most states and not on the USA, it is helpful to understand how a document like the CRC becomes binding.
Usually, laws are rules that regulate the day-to-day life of citizens. An example of such rule are speed limits. These laws are made by the governments in our countries. They are rules that form part of ‘domestic law’. The rules contained in the CRC are however different. They are not created by the lawmakers in our respective countries, but by states that come together and create special documents containing international law rules. These rules are special, because, unlike speed limits, they do not tell citizens what to do, but they tell states what to do. International law contains rules that regulates the relationship between states and provides for obligations on part of the states.
These documents, also known as treaties or conventions, go through different steps before they become binding on states. First, representatives of states sit down together and discuss the rules that should be put in a convention. This is also known as the drafting period. When states finally agree on the content of a convention, they can adopt the document. In other words, states accept that this ‘version’ of the convention is the final version of the document. States can then sign the document, much like you would sign a contract. By signing a convention, states promise each other that they want to be bound by the rules they have created together.
The signed document is then brought home by the representative of each state so that the new treaty can be internally approved by a body such as a parliament or a senate. This step is also referred to as ratification. Signing and ratifying are crucial steps in the process, since they ensure that the state is willing to be bound by the rules in the convention. This is essential because only states that sign and ratify a convention can be bound by the rules therein. It is however important to bear in mind that, at this stage of the process, the adopted final version of a convention is not legally binding yet. This only happens after the next step, after the convention enters into force.
Entering into force might sound fancy, but it simply means that from a certain moment in time, the convention becomes legally binding. Usually, either one of two conditions must be met before a convention can enter into force. First, a predetermined number of states must sign and ratify the document before the convention can enter into force. Second, the convention sets a specific date after which the convention enters into force. Only after the entry into force, the states have signed and ratified the convention become bound by the convention and are considered parties thereto.
Finally, states that are not part of the original negotiating states, but who still wish to become a party, can do so at a later date. This is process is referred to as accession. This is quite common, as was the case for many parties to the CRC.
Signing the Convention
On November 20, 1989, the United Nations General Assembly adopted the CRC. After a long and difficult drafting period of almost 10 years, the final version of the Convention was made official and was opened for signatures (Fottrell, 2021). In order for the Convention to enter into, the CRC needed 20 states to ratify the treaty (Art. 49(2) CRC; Crawford, 2012).
Largely due to James Grant, the Executive Director of UNICEF at the time, and his lobbying efforts this target was met in an astonishingly short period of time (Tobin, 2019). The CRC was opened for signatures on January 26, 1990 and on August 3, 1990, Bangladesh was the 20th state to ratify the convention and, as a result, the CRC entered into force on September 2, 1990 (UN Treaty Body Database, n.d.).
It marked the start of something new and extraordinary; children were seen as holders, rather than subjects of human rights (UN Office of the High Commissioner for Human Rights, 2007). Rather than a welfare approach to children, where they are only the subject of good care, children are now viewed as human beings and individuals with their own rights (UNICEF, n.d.).
In the years that followed, state after state acceded to the CRC. During the 90’s, a staggering 170 states – amongst which Yemen, the Netherlands, Kenya, Indonesia and Ecuador – became party to the Convention (UN Treaty Body Database, n.d.). In the decade that followed, Timor-Leste, Serbia and Montenegro also joined the CRC (UN Treaty Body Database, n.d.).
South Sudan and Somalia are the newest parties to the Convention. Both countries joined in 2015, bringing the total number of signatories and parties to the CRC, to 163 and 196 respectively (UN Treaty Body Database, n.d.). However, of those 163 signatories, one state, illustrious for signing but not ratifying the treaty is yet to become party to the CRC – the United States of America.
The State that might never join
During the 10-year drafting period of the Convention, the USA was one of the main driving forces behind the drafting process (Davidson, 2014). In fact, they made textual recommendations for 38 different CRC’ Articles and proposed numerous new substantive provisions, which was more than any other drafting party (Davidson, 2014). After the Convention was adopted and opened for signatures, the USA did sign. However, unlike other parties, the USA refused to ratify. This begs the question – why?
Firstly, the US Senate has voiced concerns that the CRC would diminish and oppose parental rights (Bartholet, 2011; Davidson, 2014; Killbourne, 1998). The argument is that, by allowing children to be regarded as rights holders, parents are no longer able to make any decisions for their children, and essentially children are given a right to rebel against their parents (Killbourne, 1998). However, upon closer inspection of the Convention, it is clear that this argument is couched in misunderstanding.
Secondly, the US Senate believes that the CRC could potentially have far reaching consequences for the governance of their State (Davidson, 2014; Killbourne, 1998). This is potentially true since the ratification of the CRC would mean that the federal government would be able to legislate on topics that are typically reserved for the States (meaning, the states within the USA) themselves (Killbourne, 1998). Moreover, besides internal governance, anti-internationalists also argue that, by ratifying international law, a state gives up on a part of its sovereignty and could be held accountable at an international level (Davidson, 2014).
Whatever the reasons might be, the reality is that the USA is unlikely to become party to the Convention. Interestingly enough, the USA has ratified both 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.
Written by Yunus Oppier
Last updated on 16 December 2021
Bartholet, E. (2011). Ratification by the United States of the Convention on the Rights of the child: Pros and cons from a child’s rights perspective. Annals of the American Academy of Political and Social Science, 633(1), 80–101. https://doi.org/10.1177/0002716210382389, accessed on September 27, 2021
Crawford, J. (2012). Brownlie’s Principles of Public International Law (8th ed.). Oxford University Press.
Davidson, H. (2014). Does the U.N. Convention on the Rights of the Child Make a Difference? Michigan State International Law Review, 22(2), 497–530. Retrieved from https://heinonline.org/HOL/P?h=hein.journals/mistjintl22&i=517, accessed on September 27, 2021
Fottrell, D. (2021). Revisiting Children’s Rights: 10 Years of the UN Convention on the Rights of the Child. Brill.
Killbourne, S. (1998). Opposition to U.S. Ratification of the United Nations Convention on the Rights of the Child: Responses to Parental Rights Arguments. Loyola Poverty Law Journal, 4, 55–112. Retreived from https://heinonline.org/HOL/P?h=hein.journals/lopo4&i=65, accessed on September 28, 2021
Tobin, J. (2019). Introduction: The Foundation for Children’s Rights. In The UN Convention on the Rights of the Child: A Commentary (pp. 1–20). Oxford University Press. Retreived from https://doi.org/10.1093/law/9780198262657.001.0001, accessed on September 26, 2021
UN Office of the High Commissioner for Human Rights. (2007). Legislative History of the Convention on the Rights of the Child Vol. 1. Retreived from https://www.ohchr.org/Documents/Publications/LegislativeHistorycrc1en.pdf, accessed on September 27, 2021