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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:

  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 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 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.

Kenneth Anderson:
Two additional side notes ...

First, it is a staple of tisk-tisking the US for not joining that only it and Somalia have not joined. However, a quick scan of the reservations clauses of countries that have supposedly ratified suggests that there is much less here than meets the eye. Pretty much the entire Islamic world, for example, joined with some form of declaration that the Convention only applied insofar as it was compatible with Islamic law or sharia.

Second, if we are to take the whole 'soft international law' concept popular in the international community seriously, then we would have to consider not only the words of the treaty at this stage, but all the supposed evolution of the interpretation of the treaty by expert bodies, special rapporteurs, investigatory commissions, law professors opining, various national, regional, and international tribunals and their various interpretations - nearly all of which tend to stretch, and stretch, and stretch the reach of various treaty provisions in ways that one might think barely recognizable under the plain language of the treaty terms, even if one accepted them.

Yet many of these advocates would say that if the US signs onto the treaty, and not withstanding its declarations and understandings of particular terms, it is signing on to the 'international community's' latest rendering of the treaty's interpretation. That ought presumably to give some pause.
8.5.2009 4:06pm
lance.cahill (mail):
Let's hope the UN keeps in mind the important goal of protecting children from naughty language.
8.5.2009 4:12pm
Jon Roland (mail) (www):
The logic is very clear. Congress may acquire more power only by amendment of the Constitution, and treaties are not among the alternatives in Art. V for such amendment. The previous article cited discusses Missouri v. Holland, but neglects the more definitive Reid v. Covert, 354 U.S. 1 (1957), which rejects such acquisition of power, and overturns the precedent in Missouri v. Holland.
8.5.2009 4:14pm
Seattle Law Student (mail):
Kenneth Anderson makes a good point.

EV - Given your relatively small list of complaints, and the fact that many of them appear to boil down to federalism concerns would you be more comfortable if the US signed the UNCRC with a reservation along the lines listed by Kenneth? Something like "the US signature is valid to the extent that it doesn't violate the 10th Amendment."

WRT Article 37(a) - I don't think there is any net benefit to the US by executing children. Giving up that practice is relatively cost free. I have yet to see a study that shows that the death penalty is an effective deterrent for minors anyways.

Clearing the air - I'm not an supporter of either the death penalty (It's barbaric)or LWOP (I prefer the English interpretation of a life sentence), and particularly when it comes to minors.
8.5.2009 4:17pm
Eugene Volokh (www):
A warning about Jon Roland's post (and other aspects of Roland's work that I've seen before): While it doubtless sincerely represents his view of the Constitution, it could be misleading as to a statement of what courts have actually held. In particular, Reid v. Covert expressly said that it wasn't overruling Missouri v. Holland, and that its holding that the treaty power is constrained by the Bill of Rights is consistent with Missouri v. Holland's view that the Treaty Clause provides an independent source of power to Congress. (Recall that the exercise of Congress's power under other clauses, such as the Commerce Clause, is likewise constrained by the Bill of Rights.

Perhaps at some deeper level the logic of Reid is inconsistent with the logic of Holland, and perhaps Holland is wrong. But if the phrase "[Case X] overturns [Case Y]" is read in its normal sense, which is that after case X courts following case X will not follow case Y any more, then the assertion that "Reid v. Covert ... overturns the precedent in Missouri v. Holland" strikes me as descriptively wrong.

Seattle Law Student: I thought my post made clear that my objections are not that the treaty violates the Tenth Amendment. In fact, and among other things, if Missouri v. Holland continues to be followed, then it's impossible for a treaty to violate the Tenth Amendment.
8.5.2009 4:32pm
Kenneth Anderson:
I guess I should be clear - I don't favor ratification. There are other issues of substance lurking here - the standard of 'best interests of the child' as more than a federalism issue, but a basic position on the question of parental rights, for example.

Moreover, lurking behind all this is a bigger international law question of the effect of reservations and declarations. The Vienna convention supports a view that where the reservations and understandings etc. are so extensive so as to vitiate the purposes and substance of the treaty, then those reservations are treated as a nullity and (this might seem a surprise, and I think it was exactly the wrong approach to interpretation) the treaty ... applies as though the reservations had not been entered.

This is the view that various European states took of the Islamic law reservations. It is unclear that they would do anything so politically incorrect in today's world, but that is what they said back then. The US often takes the view in treaty ratification that it can make these things subject to Constitutional limitations as interpreted by its courts, but other states and the 'international community' quite typically view such broad reservations, however normal in the view of the US, as not just objectionable, but as reservations so broad as to be ineffective and to render the US subject to the treaty as drafted.

This is a problem, and particularly a problem with treaties such as this that reach deep into the heart of intimate relations of particular societies and their relations to states. And of course it always turns out, in practical circumstances, to be a one way ratchet ... if you are Saudi Arabia or Iran, marriage-child rape at age 9 will not get criticized the same way that the US would for not allowing a child to express his or her full artistic sentiments and siding with parental authority. The US must follow the lead of the post-Christian communities of Europe, but not Saudi Arabia, or Pakistan, or Yemen, or Iran.
8.5.2009 4:42pm
Thorley Winston (mail) (www):
A very well thought-up post Professor Volokh. I agree largely with your concerns and would just add that I'm generally not a fan of treaties among nations that govern what are usually strictly internal affairs. I favor instead limiting the use of treaties to governing the way that nations act towards each other and/or each other's citizens. A treaty that governs the laws each nation should have regarding the status and treatment of the children of its own citizens is beyond what I think is a proper use of the treaty-making power.
8.5.2009 4:52pm
Steve:
Something like "the US signature is valid to the extent that it doesn't violate the 10th Amendment."

This would be an even more significant reservation than the Islamic countries reserving their rights under Sharia law (which is a pretty big loophole right there). Basically what you're saying is that "we ratify this treaty except to the extent one of our political subdivisions chooses not to follow it." Imagine some other country trying to put that one over on us.
8.5.2009 4:53pm
Gabriel McCall (mail):
I could see the "best interests" language being parlayed into such nastiness as a parental duty for kidney donation, as discussed on this site a few weeks ago. Good for us for not signing it.
8.5.2009 4:53pm
Bill Poser (mail) (www):
I am surprised by your objection number 4. Giving minors a voice in their own affairs seems to me to be morally unimpeachable and highly desirable insofar as it is in the public interest to address matters of custody, visitation, child abuse, etc. with the maximum information and fairness. I should think that libertarian principles would support this view, insofar as the subordination of minors to their guardians is an exercise of state power. Is the alternative not a sort of patriarchal libertarianism in freedom is the due only of the pater familias?
8.5.2009 4:55pm
Bill Poser (mail) (www):
My fingers left out the word "which" between "in" and "freedom" in the last sentence of my previous comment.
8.5.2009 4:57pm
Eugene Volokh (www):
Steve: Actually, the reservation would be narrow, perhaps nonexistent. As I mentioned in my comment to Seattle Law Student, so long as Missouri v. Holland is followed, no treaty (or statute that is necessary and proper to implementing a treaty) could ever violate the Tenth Amendment. But even if Holland is rejected, Congress could still pressure states to comply with the treaty by (for instance) conditioning various federal grants on compliance. And because it could do that, it would have to, in order to comply with the obligation that the nation has undertaken.
8.5.2009 4:58pm
Dan M.:

Article 29

1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.


2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.


I don't necessarily find those principles of education objectionable. But it seems to me that it would obligate the government to further regulate homeschooling and mandate the type of character education that parents give their children. I don't think someone should be precluded from homeschooling his children if he teaches traditional gender roles, some manner of cynicism or disrespect for nature, antipathy toward Commies, and hatred of the UN. In fact, mandating the educating be geared toward promoting the UN agenda is the most objectionable to me.
8.5.2009 5:00pm
Thorley Winston (mail) (www):
I wouldn't want the federal government to have this kind of power over me or my children, why on Earth would I trust the United Nations with it?
8.5.2009 5:09pm
More Importantly . . .:

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


Since the language is entirely devoid of meaning, I see no issue with signing it, aside from the fact that it has zero legal impact and is thus a waste of everyone's time.
8.5.2009 5:26pm
PatHMV (mail) (www):
Kenneth Anderson, regarding your comment at 4:42, what exactly does it matter whether the other states determine that we have accepted the treaty intact, not withstanding our stated reservations? Do treaties like this have some independent enforcement authority? Does the treaty contain a renunciation of our sovereignty, such that, for example, a murderer who killed at age 17 and was given life without parole would be entitled, under the treaty, to have his conviction overturned by the Hague or something, regardless of the opinion of the Supreme Court? Or is the fear that the Supreme Court would apply the provisions because the other nations are discounting our reservations, and thus the Supreme Court would feel compelled to discount those reservations?

I mean, I oppose treaties like this for a whole slew of reasons, not least in order to avoid difficult questions like that, but I am curious whether these kinds of treaties have any actual enforcement mechanisms in reality (as opposed to in "international law," which I personally consider to be an almost meaningless phrase as it is used in these types of matters).
8.5.2009 5:27pm
Steve:
Steve: Actually, the reservation would be narrow, perhaps nonexistent.

I believe the spirit of the comment I was responding to was that we would issue a reservation that preserves the right of the states to do as they please.
8.5.2009 5:31pm
Dan M.:
I don't see any listed enforcement mechanism. Just that some reservations won't be permitted, whatever that really means, and that nations will have to give progress reports, and be subjected to whining from different UN agencies. I don't think we should comply with this treaty, so I don't think we should sign it, because I don't want to comply with it and I don't want to hear subject UN representatives to mandatory whining from individual UN agencies that we don't have a federally mandated home school licensing scheme or some other such nonsense.
8.5.2009 5:36pm
PatHMV (mail) (www):
Steve, other nations are not organized as we are. While most have smaller political subdivisions, our states are not, technically, political subdivisions of the United States. They are independently sovereign, and have simply surrendered a portion of their sovereignty to the national government. If any other nation has a similar arrangement, and their own constitution similarly guarantees their component states autonomy to act, I'd be quite happy to have them issue similar reservations.

Of course, I'm astonished at how much time and energy is wasted on such blithering bullshit as these types of "treaties". Can anybody point me to a single child's life which has been made better in any way as a result of this treaty?
8.5.2009 5:40pm
DennisN (mail):
I think Thorley just won the thread.
8.5.2009 5:43pm
DennisN (mail):
Dan M.:
I don't see any listed enforcement mechanism.


Presumably the offendiong political entities could be sued in US courts to force compliance. I don't want to give that a chance to happen, or to give activist groups that sort of additional power.
8.5.2009 5:46pm
PeteP (mail):
Forget all teh legal bobbldey gook - the simple fact is, the USA does more to protect the rights of EVERY citizne, including children, the disabled, minorities, genders, etc, than any other country on the planet, bar none.

To compare us with, say, Somalia, is beyond ludicrous. To suggest that we and Somalia ( or others ) have the same' need for regulation by international treaty' is insane.

Anyone who wants to make that comparison can go live in Somalia for a year, and if you survive, come back and etll us about it. Any woman can go live in Saudi Arabia for a year, then come back and tell us how terrible it is here.

Anyone who wants to complain about the death penalty can go live in China ( the world leader in executions ) for a year.

Anyone who wants to complain about religious discrimination, proclaim yourself a Christian or a Jew, put a crucifix or Star of David necklace on, and go live in any Islamic country for a year, then come back and tell us about how bad it is here.

etc etc

All Un treaties, liek the 'rights of the disabled' we recently signed, or this 'rights of the child' or others, are just attempts by the far left socialist nut jobs of the world to try to gain some say-so in how America is run, as if they lived here, or had voting rights here. If it were up to them, the entire world woudl get to vote for President of the USA, etc.

Sadly, we hvae a President that is going to sign a LOT of UN treaties, I suspect, and we can only hope that Congress and SCOTUS have the b*lls to stand up to him and shut him down, before he gives away what's left of our sovereignity.
8.5.2009 5:53pm
Alan Gunn (mail):
Point No. 1, on banning life sentences without parole, is a matter that goes far beyond this particular treaty. Some people think that life sentences, even with the possibility of parole, are too harsh for any crime, even murders committed by adults. I've been told that the longest sentence for murder in Germany is fifteen years, by someone who brought this up to show that the Germans are less barbaric than we are. If capital punishment is abolished, the next great cause is likely to be life sentences. This strikes me as the best reason I can think of for keeping capital punishment on the books, despite the rarity of its enforcement. As long as capital punishment is theoretically available, long prison terms for things like murder seem mild enough to be safe from repeal, or (more likely) from being held unconstitutional.
8.5.2009 6:07pm
Joshua (mail):
PatHMV: Of course, I'm astonished at how much time and energy is wasted on such blithering bullshit as these types of "treaties".

It might help to stop thinking of (the vast majority of) treaty signings as earnest declarations of intent, and start thinking of them as status symbols or acts of fashion-following instead.
8.5.2009 6:13pm
Ak Mike (mail):
My question is: what is the point of making this the subject matter of a treaty? Doesn't it concern only the internal law of the signatory nations? Does it have anything to do with the relationship between nations? It appears to be simply a way to substitute the treaty-adopting power for the law-adopting power within the countries that sign on.
8.5.2009 6:23pm
PatHMV (mail) (www):
Joshua... that is in fact how I think of them. Unfortunately, however, there's a very large number of very earnest people, too many of whom have accumulated some political power, who don't think of them that way, and actually try to make these damn things rule our lives.
8.5.2009 6:26pm
traveler496:
This example and the discussion have been enlightening, and I think nudged me in the following direction:

I'll still listen (more so than I think most Americans do) to assertions of the form "only the US and [small-or-possibly-empty subset S1] out of [large-set-of-countries S] have failed to do Y" - just somewhat more skeptically than in the past.
8.5.2009 7:18pm
eyesay:
Professor Volokh and others object to the Convention on the Rights of the Child for reasons based on their expertise as lawyers, as well as their libertarian antipathy to government. They have a right to oppose it, but I wish there were some discussion here that revealed an understanding of why the United Nations passed the Convention on the Rights of the Child, and why nearly every nation on earth has ratified it.

When the Convention was in development in the 1980s, every day, 40,000 children died of preventable malnutrition and disease. Most children were not immunized against childhood killer diseases such as measles, diphtheria, and tetanus. Millions of children died every year from pneumonia, even though a village health worker trained to recognize the signs of pneumonia could usually cure it with a dollar's worth of antibiotics. Most of the world's children lacked access to safe drinking water and sanitation facilities, and many tens of millions of primary school age children were not in school. More than one child in 10 born on our planet filled with abundant resources died before his or her fifth birthday because we citizens of earth failed to provide for their most basic needs.

Ordinary citizens of the developed world and the poor world alike demanded that we establish goals and standards and assure that children's needs are met, and out of that demand emerged the Convention on the Rights of the Child.

In the past 20 years, the world has made some progress in meeting the needs of children. Now, only about 26,000 children die every day, most of preventable causes. This is way down from the 1980s, especially with a larger population, but almost everybody agrees that it is still a moral disgrace in a planet full of abundant resources. Today, billions of people still don't have access to safe drinking water and sanitation facilities, and many still die from childhood killer diseases.

In most developing countries, and to a considerable extent also in the United States, there are two kinds of federal departments: The "A" departments and the "B" departments. The "A" departments are defense, national security, police, stuff like that. The "B" departments are education, housing, health, and all those departments that give the poor a hand in improving their lives. And the thing is, the "A" departments always get whatever they need, while the "B" departments always take a back seat. Like that stupid war we just fought for no credible reason in Iraq, that will cost in the trillions? While protecting New Orleans from flooding took a back seat to "A" priorities? Remember?

But to ordinary citizens, especially the disadvantaged, it's the "B" departments that have the top priority.

International treaties like the Convention on the Rights of the Child are a way for citizens to hold their governments accountable and make sure that the governments serve the people and not the wealthy elite.

The United States contributes the lowest share of national income to official development assistance of any of the 22 OECD nations, just 0.16%, despite decades of promising to contribute 0.7%. The United Kingdom, with a fraction of our population, contributes several times as much as the United States does toward primary and secondary education. We are not contributing our share.

The United States should ratify the Convention on the Rights of the Child and take leadership in international development. Ratifying the treaty would inspire the world's citizens and governments to remember that the "B" departments are really the "A" priority and devote resources to make sure that every child is given an education and a chance to grow up and become a productive adult.

Professor Volokh and others, I understand your concerns, but I am not particularly moved by them. I don't think minors should be sentenced to life without parole. Saying that the best interests of the child shall be a primary consideration does not mean that it is the only consideration, or should trump various rights of parents. I believe that the opinions of children about their own needs should be given some vague undefined quantity of weight. In short, I believe that the provisions you object to are deliberately vague and were written to provide moral suasion to governments to do a better job in protecting the needs of children, not to establish a specific meet-this-or-else standard.

We are failing our children. Every time a child dies of malaria because we didn't get it together to provide a bed net, we failed. Every time a child dies of pneumonia because we didn't get it together to assure that every village has a trained health worker who knows how to administer antibiotics, we failed. We are failing our children in the ultimate maximum way more than 25,000 times every day. The Convention on the Rights of the Child was created to inspire us to stop failing and start succeeding. It's time to join the world and get on board.

Respectfully,
8.5.2009 7:45pm
Repeal 16-17 (mail):
Hey eyesay, thanks for the talking points. [/sarc]
8.5.2009 7:54pm
PeteP (mail):
Eyesay - I have no children in Africa nor India, etc, and I do not accept ownership or responsibility for the ones that are there. I owe them nothing. I did not create them, I did not create the conditions they live in, and in no way do I do anything to hold them down , etc.

The first and most primary solution to the issue of starving children, wherever they may be, is for those people creating them to stop having children they can't feed. Very very simple.

To put it another way - I understand your concerns, but I am not particularly moved by them.
8.5.2009 8:04pm
Harry Eagar (mail):
On what grounds was an international treaty on rights of children thought necessary in the first place?
8.5.2009 8:21pm
PatHMV (mail) (www):
Eyesay... are you suggesting that none of the improvements (modest as they've been) in the litany of horrors you accurately describe would have occurred, but for the UN Convention on the Rights of the Child?

And if your argument that the Convention was necessary to fight such ills, why was it necessary to include so many actually controversial issues, such as the appropriate penalty for 16 and 17 year olds who commit murder?

Yours is the rhetorical tack often taken by those on the left... oppose some particular legal document or proposal, and they accuse you of desiring the horrible results which they claim will be prevented by adoption of the proposal.

Plus, to further the points made by others... I am not responsible for the ills befalling the people of Africa. You and those whose politics resemble yours act as if Africa and poor nations elsewhere are nothing but charity cases, for which we are responsible. That's patronizing to them, and offensive in many ways. Most folks in Africa don't seem willing to do what is necessary to keep their children from starving or being shot or conscripted by militias or what have you, so I'm not sure why we should limit OUR ability to determine our own affairs simply because they are unable or unwilling to.
8.5.2009 8:31pm
wagnert in atlanta (mail):
Does anyone have any evidence that any signatory to this treaty has changed its own behavior in any way?

This strikes me as yet another manifestation of the real talent of the United Nations -- the production of empty rhetoric guaranteed to affect no one anywhere.
8.5.2009 9:01pm
eyesay:
PeteP wrote:
Eyesay - I have no children in Africa nor India, etc, and I do not accept ownership or responsibility for the ones that are there. I owe them nothing. I did not create them, I did not create the conditions they live in, and in no way do I do anything to hold them down , etc.

The first and most primary solution to the issue of starving children, wherever they may be, is for those people creating them to stop having children they can't feed. Very very simple.

Pete, thank you for expressing this view. It is a reasonable viewpoint. But consider that centuries of European colonial control of Africa extracted enormous wealth from Africa while doing nothing to develop the economy. The USA did not have Africa colonies, but we continue to pursue policies that continue to impoverish Africa. For example, U.S. agriculture is heavily subsidized, directly and indirectly, making it harder for Africa to export cotton, sugar, and other products to the United States. To some extent, America does create the conditions that the world's poor live in.

You are correct that family planning is important. Rapid population growth is bad both locally and globally. Certainly, contraception should be available to those who want it. But if you are seriously interested in encouraging the poor to have smaller families, the best way to accomplish that is to give them hope for a future. Every developed nation on earth has gone from high child death rates and high birth rates to low child death rates and low birth rates. Every country is proceeding along this transition, but the poorer nations are further behind. There is a definite causal link between child survival and small family size. In poor countries, the only old-age pension that exists is children. When children stop dying, parents don't have so many. So if you are really concerned about people whom you judge should not have so many children, the best way to accomplish your goal is to give them opportunities to reduce their poverty.

If the developed world contributed a little bit to help provide safe drinking water, bed nets to protect against malaria, and some schooling for the 75 million children not in school, we'd be creating hope for a better future, there would be fewer child deaths, and families wouldn't have so many children.
8.5.2009 9:07pm
Laura(southernxyl) (mail) (www):
I don't like conflating the concept of "rights" with the kinds of things Eyesay is talking about.

In Memphis I used to feed panhandlers occasionally. Sometimes I didn't wait for them to beg - I asked them if they were hungry, or if they'd had lunch yet, and would they like me to get them a hamburger. This might be something I thought I should do, or wanted to do, or even required of myself, or thought that God required of me. But it wasn't something the panhandlers were really in a position to require of me, and I don't believe they had a right to my charity or to my money.

I was sometimes panhandled by well-dressed women (better dressed than I was, anyway) begging for money for disposable diapers for their children or grandchildren. My mother washed my cloth diapers and hung them on the clothesline. She would have washed them by hand before she would have begged from strangers. Did these women have the right to disposable diapers for those kids? Did the kids have a right to them? Was I obligated to provide them?

If a child has a right to a mosquito net, then that means somebody is obligated to provide that child with one. So who is that somebody, and to whom is that somebody obligated? If I'm obligated to provide for somebody else's kids, does that give me the right to tell them not to have any more?

This in no way suggests that we should not provide mosquito nets for children, should we choose to do that.
8.5.2009 9:09pm
eyesay:
PatHMV wrote
are you suggesting that none of the improvements (modest as they've been) in the litany of horrors you accurately describe would have occurred, but for the UN Convention on the Rights of the Child?

And if your argument that the Convention was necessary to fight such ills, why was it necessary to include so many actually controversial issues, such as the appropriate penalty for 16 and 17 year olds who commit murder?

Yours is the rhetorical tack often taken by those on the left... oppose some particular legal document or proposal, and they accuse you of desiring the horrible results which they claim will be prevented by adoption of the proposal.

There would have been improvements without the Convention on the Rights of the Child. But it has served as an additional tool to encourage poor governments to devote resources to the needs of children. It was drafted by committee, so it includes some things you might not have included if you had drafted it. The concept that minors should not get the death penalty is widely accepted in most countries, and the U.S. Supreme Court so ruled in Roper v. Simmons (2005).

I don't think the left is any more guilty than the center or the right of accusing others of "desiring the horrible results which they claim will be prevented by adoption of the proposal." For example, President George W. Bush and other members of his administration accused those who opposed the extreme measures in response to the attacks of Sept. 11, 2001 — including ill-conceived wars and unconstitutional surveillance — of a lack of patriotism and a desire to aid the terrorists. Bush himself said, "Either you're with us, or you're with the terrorists. So please don't be blaming "the left" for this kind of rhetoric.

I hereby disavow the notion that anyone opposing U.S. ratification of the Convention on the Rights of the Child desires that children should continue to live in horrible conditions. I never said that and I don't agree with it. I assume that persons including Professor Volokh and others who oppose U.S. ratification are arguing from principles and not because they want poor children to continue to suffer.
8.5.2009 9:26pm
Jon Roland (mail) (www):
Eugene Volokh:

Reid v. Covert expressly said that it wasn't overruling Missouri v. Holland, and that its holding that the treaty power is constrained by the Bill of Rights is consistent with Missouri v. Holland's view that the Treaty Clause provides an independent source of power to Congress. ...
Perhaps at some deeper level the logic of Reid is inconsistent with the logic of Holland, and perhaps Holland is wrong....
...if Missouri v. Holland continues to be followed, then it's impossible for a treaty to violate the Tenth Amendment.


Well, logic is logic. The art comes in translating between statements in legalese and statements in logic, something that the justices in both the Missouri and Reid cases lacked, as do judges generally. We are not, by the way, talking about the first order predicate calculus, but about deontic logic, an extension that allows for normative statements. It is briefly discussed in an article here, but the link to the paper with the prolog source code is broken, so we provide it here.

Particularly, the courts conflated several kinds of "powers", including structural, procedural, legislative, executive, judicial, national, and state, discretionary, duties, as well as what might be called fields of action.

So, for example, the U.S. might acquire through treaty a new territory, either incorporated, of some trust territory or protectorate. Is a trust territory or protectorate covered by Art. IV Sec. 3 Cl. 2, or are the powers derived entirely from the treaty? I would argue for the former, but although that would not involve any new powers in conflict with the Tenth Amendment, it would be an expansion of the field of action of some of those powers, and one might loosely refer to that as an expansion of powers.

So, depending on how we classify the powers, such as those that were the subject of Missouri, we might not have a conflict with the Tenth Amendment, which is mainly about legislative powers, although it is part of the Bill of Rights discussed in Reid, indeed perhaps (together with the Ninth) the most fundamental of them all.

Consider the treaty that requires notification of a foreign national's embassy if he is arrested and prosecuted. Congress could make it a judicial rule under its jurisdiction power for federal courts, but not for state courts, which would exceed its structural powers, and in any case it is not self-enforcing, but has to be invoked by someone, if only in a habeas.

As for pressuring states to comply by withholding funds, that is unconstitutional (regardless of what any courts may have held). First, it is probably unconstitutional to provide the funds in the first place, then it violates structural powers and equal protection to threaten withholding as a way to evade the lack of a power to act directly. Suppose, for example, that the federal government used such a threat repeatedly to compel a state to cede parcels of its territory under Art. I Sec,. 8 Cl. 17, until there is nothing left of it? Does anyone think that would be constitutional?
8.5.2009 9:28pm
eyesay:
wagnert in atlanta wrote, "Does anyone have any evidence that any signatory to this treaty has changed its own behavior in any way?" As a result of the Convention on the Rights of the Child, the United Nations convened the Word Summit for Children, September 29-30, 1990, which was at the time the largest-ever gathering of national leaders. And on the heels of the World Summit for Children, some political leaders did begin to focus on the needs of children. For example, I heard that Mexico started having one cabinet meeting a month devoted to progress on meeting the needs of children. So, the answer to your question is Yes.
8.5.2009 9:30pm
Duncan Frissell (mail):
The United States contributes the lowest share of national income to official development assistance of any of the 22 OECD nations, just 0.16%,

Does this count *private* charity? Does this count defense charity? (If you are conquered by the Soviets, your GDP declines.)
8.5.2009 9:41pm
Duncan Frissell (mail):
(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

A few years back in negotiations with Japan on "non-tariff barriers to trade" we agreed to fix our education system. (They agreed to legalize Big Stores). We didn't fix our education system.

The US has little interest in educating it's children effectively, so it's sort of a waste to agree to do so.
8.5.2009 9:47pm
David M. Nieporent (www):
For example, I heard that Mexico started having one cabinet meeting a month devoted to progress on meeting the needs of children.
Wow. They held meetings? What's next, writing reports? Issuing proclamations? Handing out refrigerator magnets?

I believe the question was about concrete changes as a result of the treaty.
8.5.2009 9:50pm
David M. Nieporent (www):
I don't think the left is any more guilty than the center or the right of accusing others of "desiring the horrible results which they claim will be prevented by adoption of the proposal." For example, President George W. Bush and other members of his administration accused those who opposed the extreme measures in response to the attacks of Sept. 11, 2001 — including ill-conceived wars and unconstitutional surveillance — of a lack of patriotism and a desire to aid the terrorists. Bush himself said, "Either you're with us, or you're with the terrorists. So please don't be blaming "the left" for this kind of rhetoric.
Sigh. Reading is fundamental. Bush said that about foreign countries. Since a foreign country cannot be "patriotic," he obviously was not accusing anybody of lack of patriotism when he made that statement.
8.5.2009 9:51pm
Duncan Frissell (mail):
The soft law bits of the treaty involve seek outlawry of corporal. punishment.
8.5.2009 9:53pm
eyesay:
Duncan Frissell: official development assistance does not include private charity. For what it's worth, nearly all U.S. private charity goes to domestic causes and very little is for international development or the needs of the poor outside our borders. Government international anti-poverty assistance dwarfs private charity, both in U.S. and in the rest of the affluent world. (I realize that libertarians may not be happy about this, but this is how it is.)

Official development assistance has these criteria: That the donor is a government (not private charity), that it is intended to promote economic development and well-being, and that it is either a grant, or if a loan, it has a grant element of at least 25%, and that the recipient country is on the OECD list of poor countries. This is the definition of Official Development Assistance; you can look it up for yourself.
8.5.2009 10:14pm
eyesay:
David Nieporent, I believe that when President George W. Bush said you're with us or you're with the terrorists, the remark was intended to apply domestically as well. He was saying that those who opposed the Bush administration's response to terrorism were aiding and abetting terrorism. Make no mistake, Republicans ran the 2002 congressional election as a referendum on terrorism, and ruthlessly criticized anyone who had supported a more nuanced approach, e.g. who voted against the USA-Patriot Act (which, by the way, self-respecting libertarians should have opposed).

I stand by my statement. The right is at least as guilty as the left of accusing opponents of supporting the worst possible outcomes for disagreeing with the speaker's support for whatever.
8.5.2009 10:22pm
eyesay:
Clarification: I wrote "Government international anti-poverty assistance dwarfs private charity, both in U.S. and in the rest of the affluent world." I meant Government international anti-poverty assistance dwarfs private charity contributed to alleviate international poverty, both in U.S. and in the rest of the affluent world.
8.5.2009 10:25pm
Dave N (mail):
Eyesay,

Here's an actual CNN story that puts the Bush quote (what is that word again? oh that's right, CONTEXT):
In a joint news conference with French President Jacques Chirac, Bush said coalition partners would be called upon to back up their support with action. He said he would deliver that message in his speech Saturday to the United Nations.

"A coalition partner must do more than just express sympathy, a coalition partner must perform," Bush said. "That means different things for different nations. Some nations don't want to contribute troops and we understand that. Other nations can contribute intelligence-sharing. ... But all nations, if they want to fight terror, must do something."

Bush said he would not point out any specific countries in his speech.

"Over time it's going to be important for nations to know they will be held accountable for inactivity," he said. "You're either with us or against us in the fight against terror."
Oh that's right, he really meant something else when holding a joint news conference with the President of France.
8.5.2009 10:46pm
Dave N (mail):
And Eyesay, I am sorry if the Republicans hurt your feelings in the 2002 election--but provide actual (what's the word? Oh, that's right) evidence rather than repeat MoveOn/Kos talking points.
8.5.2009 10:50pm
Sashia (mail) (www):
I think the U.S. has been smart in not signing the treaty. One only has to look at the Hague Convention on the Civil Aspects of International Child Abduction, and the current application. Rarely have other countries complied with the spirit of the treaty, instead citing their "definition" of, "in the best interest of the child", "settled or adapted to the enviornment" etc. Looking at the misapplication of the treaty by Brazil, in the current international battle of a New Jersey father against the step-father of a now 9 y/o boy, who was kidnapped by the now deceased mother. A sort of Elian Gonzalez in reverse.
See at www.bringseanhome.org and look at what a nightmare, a supposed treaty has created. It has rarely produced the results for which it was intended.
Brazil claims that the language of the treaty allows for the deceased mother's new husband to trump over the biological father who, by the way filed a Hague case immediately upon the boys kidnapping. 5 years later, Brazil contends that the boy wasn't kidnapped becasuse it was his mother. That the boy is now adapted to his new family, and basically, the father can go pound salt. The child has been determined by 3 Brazilian psychologists,and a Brazilian superior court judge, to be the victim of violent parental alienation, and is being emotionally abused by the step-father. However, the step-father has been able to use language in the treaty to prevent the child from being returned to his father despite a court order...
The U.N.Convention on the Rights of the Child, would give them even MORE leeway, to define the parameters to their own liking. Collectively the U.N. Convention is too broad, and allows for debate on issues in which previously only common sense dictated. For instance, in almost every culture, if a mother dies, unless the father is proven unfit, the child belongs to him.
Thanks to the Hague Convention, there are now "other" factors, which an opposing party, not even a relative, can use to argue that THEY are the BETTER choice for custodian.

Sometimes we try to fix things that weren't broken, that now have to be fixed.
8.5.2009 10:59pm
Tritium (mail):
Interesting topic. I believe this topic was discussed early in the Unions history. All General Powers delegated by the Constitution are limited by all restrictions. For Example, the Treaty power couldn't remove a restriction or add a power that is specificallt forbidden. (Nor could an amendment, since there is no power delegated to expand government powers.). All the powers are conditional. Any attempts to remove the restrictions that originate in the Federal head were considered to be null and void.

Treaties were intended to be an agreement between nation on how they treated one another under certain circumstances. It does not authorize it to be used for Domestic policy. It is contrary to a Republican form of Governmant, which requires that all powers are derived with the approval of the people. (Which requires a new Constitution, which is why we have our current one.)

The scary part is, this appears to me, to be an infringement on respecting religion. As if the UN's goal is to become the new head of the Holy Roman Empire.It's especially disturbing when such a thing IS ratified by the US, even if the intention is good, it creates the perception that it can be done under different circumstances. This is why/how it is believed by a majority of intelligent people that amendments can expand power. But they were only intended to clarify, as long as the clarification wasn't obviously contrary and repugnant to the Constitution.

While the intent is good, the implication is dangerous. A person should do all they can to help a fellow human being, but until they learn on their own how to take care of themselves, even in a community, international laws are a waste of time. Nobody should be obligated to take care of anyone else, mandating such a thing would be a violation of our Constitution, and the oath they swore before taking a seat in the Government.
8.6.2009 1:07am
Ricardo (mail):
"To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil." -- John Ashcroft, December 6, 2001
8.6.2009 1:21am
Dave N (mail):
Ricardo,

How about the ACTUAL quote, which has a slightly different context (which does mean something). Here is the actual quote from John Ashcroft:
We need honest, reasoned debate; not fearmongering. To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil.
The missing first sentence (along with the other missing language) changes the context significantly.
8.6.2009 2:28am
Jon Roland (mail) (www):
In the "logic" of our courts "not overturning" should not be interpreted as "confirming". It could just be "Maybe we just overturned it with this decision, maybe we didn't, but we don't want to take the time right now to figure that out, and anyway, we weren't adequately briefed on the full implications," In other words their "logic" is not "two-valued" (valid or invalid), but "multi-valued" (valid, invalid, indeterminate/confused, intermediate, or we don't want to talk about it now). No one should attempt to treat judicial decisions as precedents who does not take this multi-valued "logic" into account, or to regard the judges as having anticipated all the ways they could be misunderstood. They understood what they did at the time they wrote (probably in somewhat of a hurry), and many are aghast at how legions of clever lawyers later try to twist or nuance those words.

Our court system, if it is to make use of stare decisis at all (and I consider binding stare decisis to be logically unconstitutional), should ask panels of judges to review their own decisions every ten years or so and issue clarifications, to revolve the many misinterpretations.
8.6.2009 4:56am
davod (mail):
Dave N:

You did readers a favor by providing the expanded text of both Bush and Ashcroft's comments.
8.6.2009 6:53am
Grumpy Old Man (mail) (www):
We should stay in the UN only to keep the veto, and otherwise keep away from the cartel of tyrants, including kicking it out of New York.

To hell with these preening foreign bureaucrats.

We should be looking for more treaties to denounce (including NATO).
8.6.2009 9:53am
David M. Nieporent (www):
David Nieporent, I believe that when President George W. Bush said you're with us or you're with the terrorists, the remark was intended to apply domestically as well. He was saying that those who opposed the Bush administration's response to terrorism were aiding and abetting terrorism.
No, he wasn't. Your "belief" simply has no basis in fact, any more than the belief that he was talking about purple elephants would be. The actual quote was "We will pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime."

He then said it again at a press conference with Jacques Chirac: "I have no specific nation in mind, at least as I stand here now. Everybody ought to be given the benefit of the doubt. But over time, it's going to be important for nations to know they will be held accountable for inactivity. You're either with us or you're against us in the fight against terror. And that's going to be part of my speech at the United Nations. Mr. President?"


At no time did Bush ever say that with respect to American opponents.

I stand by my statement. The right is at least as guilty as the left of accusing opponents of supporting the worst possible outcomes for disagreeing with the speaker's support for whatever.
That may well be true, but the example you have chosen is false.
8.6.2009 10:15am
David M. Nieporent (www):
Duncan Frissell: official development assistance does not include private charity. For what it's worth, nearly all U.S. private charity goes to domestic causes and very little is for international development or the needs of the poor outside our borders. Government international anti-poverty assistance dwarfs private charity, both in U.S. and in the rest of the affluent world. (I realize that libertarians may not be happy about this, but this is how it is.)
Untrue, at least as far as the U.S. is concerned. See, e.g., here. (Yes, I know it's Wikipedia, but the data is the data. Feel free to look it up in original sources if you choose.)

That doesn't even count U.S. efforts to lower trade barriers, which is worth a lot more than "development assistance."
8.6.2009 10:23am
John Steele (mail):
<blockquote>
More Importantly . . .:


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



Since the language is entirely devoid of meaning, I see no issue with signing it, aside from the fact that it has zero legal impact and is thus a waste of everyone's time.
8.5.2009 5:26pm
</blockquote>
Unfortunately "language entirely devoid of meaning" can later acquire meaning, usually malevolent, when the "activists" get a hold of it.
8.6.2009 10:32am
John Steele (mail):

Thorley Winston (mail) (www):
I wouldn't want the federal government to have this kind of power over me or my children, why on Earth would I trust the United Nations with it?
8.5.2009 5:09pm
BINGO. We should skip this "opportunity." While we are at it we should skip most of the stuff comingout of Turtle Bay --- actually maybe we ought to just skip Turtle Bay altogether.
8.6.2009 10:34am
MikeJHU:
Eyesay - I found this online which would seem to indicate you are wrong about US private charity overseas...

When it comes to international aid, Americans long have preferred to donate their money through the private sector or to private charities rather than relying on government. The $115.9 billion provided by private foundations, corporations, voluntary organizations, universities, religious organizations and individual Americans in 2007, the most current data available, is more than five times the $21.8 billion of official aid provided by the U.S. government, according to CGP.
8.6.2009 10:42am
subpatre (mail):
Treaties are agreements between states, governing those states' relations; they are not substitutes for those states' laws. Treaties regulate how one state returns another's captured soldiers, agree on mutual use of fishing grounds, border intrusion protocol, or govern how unintentional landings by another state's ships are handled.

To some extent treaties can shape internal law; fishing limits and seasons, mandatory fuel sales in foreign currency, or emergency medical treatment of non-citizens. Although treaties can shape a state's own law, the primary focus is on relations between the states themselves. This is where this UN faux-treaty fails, it is intended to be the law —or shape the law— of a state. There is no part of this document that even hints at relations between states, of improving children's welfare by mutual state conduct, or contains any subject matter on international relations.

Nations sign treaties for their own benefit; usually to assure some beneficial, consistent treatment of their own citizens' or governmental interests. The key here is 'benefit'; there is no benefit to the US from signing the document, and there are potentially many pitfalls.


DaveN -- Another 'thank you' for supplying facts.
8.6.2009 10:48am
Kevin P. (mail):

Ricardo:
"To those who scare peace-loving people with phantoms of lost liberty ...


Dave N's full quote:

To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty;


Wow, what an enormous difference! Ricardo, you are guilty of posting a deceptive and dishonest selective quotation. Are you a Michael Moore fan? If so, you seem to have learned well.

Dave N, thanks for posting this!
8.6.2009 11:08am
PatHMV (mail) (www):
All you guys talking about our private charity are so off base! Don't you silly people know that only "official government aid," the kind which is channeled through those oh-so-important cabinet meetings in Mexico, count for anything? Why, some of that private charity comes from religious groups (gasp), so that's really proselytizing, not giving aid!

You see, eyesay, we conservatives and libertarians want to help kids, too. But we want to see whether we're helping by measuring actual results, actual improvements in the lives of children, rather than by the number of nice words said on their behalf or the number of cabinet meetings held to talk about their interests.
8.6.2009 11:18am
martinned (mail) (www):
Sigh... This right-wing isolationist Fox-news-talking-point blather was bound to happen. It's only surprising it took this long.

(In case anyone cares: I'm not going to get involved in this debate, since that would require me to first disentangle the masses of explicit and silent premises of the last few dozen comments, to sort out where it goes wrong. Starting from the original post, a reasonable discussion can be had, but given how many comments have already been made, a normal conversation would be difficult.)
8.6.2009 11:25am
PatHMV (mail) (www):
Oh, yes, martinned, your response is oh so much more sophisticated than the comments about which you complain. You have nothing to add to the debate? No data about substantial benefits brought to children by this Convention? Nothing to address any of the very legitimate criticisms made by our host? All you've got is drive-by insult?

If you don't want to disentangle the masses of premises, why not start from scratch with the original post, and comment on it? Nobody else has thus far done any kind of decent job speaking up on behalf of the Convention, so the field is wide open for you.
8.6.2009 11:31am
martinned (mail) (www):

If you don't want to disentangle the masses of premises, why not start from scratch with the original post, and comment on it? Nobody else has thus far done any kind of decent job speaking up on behalf of the Convention, so the field is wide open for you.

Question: I understand the problem about the Federal government's treaty making power. But if the feds can't make treaties except in the areas reserved to them in art. I, who can? The states are forbidden from making treaties.

As I commented on OJ earlier. This story about US &Somalia is nonsense. Who cares who else did or did not ratify or sign. The US should decide for themselves, and so should every other state.

As for prof. Volokh's numbered concerns:
1. Being generally agianst the death penalty, I would have to disagree with EV on that point, for reasons sufficiently discussed in the past. AFAIK, SCOTUS case law forbids executing people for crimes committed as minors. Giving someone LWOP for something they did as a minor seems harsh, but I'm not sure if I would support a blanket ban. Regardless, this seems like a minor point, and can easily be covered by a reservation.

2. Looking at the language quoted, I'm not sure that US practice is incompatible. "a primary concern" is not the same thing as the only concern. I don't see how this rule requires interest of the child to be the only determinative factor in all cases.

3. I don't see why the rules in this area should be different for private and public bodies.

4. I'm not sure what problem would be caused by enacting a right to be heard. As for "due weight", as long as the treaty leaves to local authorities to decide on a case by case basis how much weight is "due", I don't see the problem.

5. The language quoted from art. 14 (3) is standard for human rights treaties everywhere. As I understand it, the objection is not to the language as such, but to the federalism consequences. I'm not sure which of the two aspects causes the problem (I probably should read the ruling EV linked): is it the guarantee that exceptions should be in a statute or the rule that exceptions have to fall in one of a specific number of listed categories (i.e. instead of having the supreme court make up new exceptions as the go along)? Since state law is presumably also "law" within the meaning of this provision, I don't see how they can't enact laws to overrule court rulings if this should prove necessary, unless the concern is that the categorisation will hamper their freedom to do so. If that is it, I'd say the concern is exaggerated. Between them, the categories are pretty comprehensive, so I don't see how the courts could reject a law on the grounds that it does not fit in one of them, unless it is way off the reservation.

6. When it comes to enacting some minimum welfare state provisions, I guess we'll have to agree to disagree. Although I vote fairly to the right, I certainly favour more of a welfare state than the US and its constituent states currently have.

Finally, the value in signing such a treaty is that it increases the chance that others will, too, and that they will actually comply. Putting the power and prestige of the Unites States behind this treaty can do untold good. Of course, if American voters want to take the position that foreign children are none of their concern, and can rot and die for all they care, that's fair enough.
8.6.2009 11:53am
Karen A. Wyle (mail) (www):
Another area where current U.S. constitutional law prohibits applying a best interest standard: grandparent visitation. Per Troxel v. Granville, 530 U.S. 57 (2000), trial courts must apply a rebuttable presumption that a fit custodial parent's decisions on grandparent visitation are in the child's best interest, rather than simply determining for themselves what's in the child's best interest.
8.6.2009 11:57am
David M. Nieporent (www):
Finally, the value in signing such a treaty is that it increases the chance that others will, too,
Obviously not, here. Unless you think Somalia is anxiously awaiting word from Washington to decide whether to ratify.
and that they will actually comply.
How does it do that?

This is not like a climate change treaty where there's a collective action issue. Anybody who was interested in "complying" would simply enact relevant laws without the need for a treaty at all.
Putting the power and prestige of the Unites States behind this treaty can do untold good.
I agree, although I suspect not in the way you meant it. (It won't do any good, which is why the good would be "untold.")
Of course, if American voters want to take the position that foreign children are none of their concern, and can rot and die for all they care, that's fair enough.
Actually, American voters want to take the position that American children are not the concern of foreigners.
8.6.2009 12:17pm
David M. Nieporent (www):
As for prof. Volokh's numbered concerns:
What I think is rather bizarre about these discussions of international treaties is how the evil "right wing" is always attacked by the left, not for ignoring the treaties, but for taking treaties seriously. The typical exchange goes like this:

Left winger: "You must support this treaty or you hate children/baby seals/peace."
Right winger: "We can't ratify this horrible treaty. Look at this language. It would require us to do terrible things X, Y, and Z!"
Left winger: "You're being ridiculous to worry about this issue. That language wouldn't have any effect at all. It doesn't really mean anything and wouldn't require us to do anything.... but we must sign the treaty right away!"
8.6.2009 12:23pm
martinned (mail) (www):

This is not like a climate change treaty where there's a collective action issue. Anybody who was interested in "complying" would simply enact relevant laws without the need for a treaty at all.

Because having the US sign on to the treaty will lead to the presumption that the US will care whether other countries comply. Since the US are the "leaders of the free world", other countries tend to prefer not to displease them, if it can be avoided, meaning that having the US on board leads to improved compliance by others.
8.6.2009 12:24pm
eyesay:
MikeJHU: citation, please.
8.6.2009 12:29pm
martinned (mail) (www):

What I think is rather bizarre about these discussions of international treaties is how the evil "right wing" is always attacked by the left, not for ignoring the treaties, but for taking treaties seriously.

Not by me, unless the evil "right wing" make a mountain out of a mole hill. By their nature, treaties are more flexible than statutes, in that a treaty leaves more room for national judgement than an identical rule of, say, US federal law would. That is simply the consequence of not having an enforcement mechanism, and it is an explicit part of the deal.

(The European Court for Human rights talks about "the margin of appreciation which the Court generally considers that States should enjoy in this sphere", meaning that they explicitly give the parties to the ECHR the benefit of the doubt in many cases. Even though the ECHR does come with an enforcement mechanism, this court tries to keep an eye on the amount of activism they engage in. After all, it is a treaty and not a constitution that they are enforcing.)

Stories about how the UN are going to take away everybody's gun are ridiculous and deserve to be ridiculed. (If for no other reason than that international law never trumps the constitution.)

Did I not honestly discuss prof. Volokh's concerns?
8.6.2009 12:31pm
Amphipolis:
It seems to me that the central question is not the best interests of the child but who determines the best interests of the child. Generally speaking, I don't think our government was designed to do that. I do think that parents were designed to do that.
8.6.2009 12:45pm
martinned (mail) (www):

It seems to me that the central question is not the best interests of the child but who determines the best interests of the child. Generally speaking, I don't think our government was designed to do that. I do think that parents were designed to do that.

...which is exactly the line of argument that allows a general best interest of the child preference to be combined with a great deal of deference for parental wishes.
8.6.2009 12:47pm
Fraggle Rock (mail):
The UN's peacekeepers have been molesting children for years. Forgive me if I don't give a damn about how the UN says we should raise our children.
8.6.2009 1:25pm
martinned (mail) (www):

The UN's peacekeepers have been molesting children for years. Forgive me if I don't give a damn about how the UN says we should raise our children.

Apart from the 1 million other things that are wrong with this comment, you do understand that this is an international treaty like any other? The UN isn't saying anything, they're only playing host and initiator.
8.6.2009 1:33pm
David M. Nieporent (www):
Because having the US sign on to the treaty will lead to the presumption that the US will care whether other countries comply. Since the US are the "leaders of the free world", other countries tend to prefer not to displease them, if it can be avoided, meaning that having the US on board leads to improved compliance by others.
This sounds like a nice short work of fiction searching for a magazine to publish it. It certainly doesn't sound like a description of any action ever taken by any country anywhere in this universe.
8.6.2009 1:43pm
martinned (mail) (www):

This sounds like a nice short work of fiction searching for a magazine to publish it. It certainly doesn't sound like a description of any action ever taken by any country anywhere in this universe.

You don't think the vast majority of countries in the world take the wishes of the US into account when they're contemplating doing (or not doing) just about anything?

US wishes aren't always decisive. Congress passed and Bush jr. signed the "storming the beach in The Hague" law, and that didn't stop the Dutch government from agreeing to host the ICC, but you'd better believe that would affect the Dutch government's position if the ICC actually contemplated doing something specific the US wouldn't like, even absent further explicit US diplomatic pressure. Now I know that American conservatives tend to distinguish sharply between international relations problems that involve possible shooting (good!) and everything else (bad!), but still.

Part of the reason why Turkey has gotten as far into the admission process as it has, is that the US has spoken out clearly in favour of admitting Turkey to the EU. Without US backing, no more than a handful of EU Member States would have supported letting Turkey even look at the first negotiation chapters. Turkish admission to the EU is the grandmother of all domestic policy problems, both politcally and practically, and yet EU Member States are willing to listen when the US repay Turkey for letting them use Incirlik during the Iraq war.

Part of the reason why the US aren't exactly the most popular country in the world is that the US position matters in myriad ways. That's the wonderful world of US hegemony, single superpower world, etc. Since when do US conservatives dislike that picture? Or is this simply a matter of denying US influence because it happens to be useful in the discussion at hand?
8.6.2009 2:01pm
PatHMV (mail) (www):
No, martinned, in fact I think most other countries, particularly the most despotic and the ones most likely to mistreat their children don't give a tinker's damn what rules the U.S. says they should live by. They don't care about treaties, because they don't take them seriously, because there is no real ability to enforce them. So they're perfectly happy to sign the treaty and then entirely ignore it, because there are no consequences to them for doing so.

On some issues, like the admission of Turkey to the E.U., yes, that can matter. Those are issues directly affecting national security concerns. More to the point, the countries making that decision are already mostly civilized, developed nations (i.e., member nations of the U.N.). Tell me, what problems do nations like that have which will be improved by this Convention? Moreover, the U.S. influence there is active, and forcefully asserted. If the U.S. chose to let the conditions of children in a particular country affect its foreign policy, then yes, other countries would start paying attention... not because we had signed some treaty but because we were about to impose consequences on them (loss of favorable trade status, etc.) on them for failure to comply.

Got any examples of Ghana or Somalia changing their behavior because of the Convention?

The reality of idiocies such as this Convention is that it interferes with the ability of civilized, developed nations that take legal obligations seriously to craft the rules that seem best for their populations, while doing absolutely nothing to stop the most heinous offender nations.

But the rest of the world tends to not like us when we actually impose consequences for misbehavior by nations, and the rest of the world generally dislikes imposing such consequences themselves. When we apply trade embargoes against repressive regimes like Cuba's or Venezuela's, WE are portrayed as the bad guy, more often than not. That's why these conventions are pure lip service, doing no good where it's most needed, and harm where it's utterly unnecessary.
8.6.2009 2:43pm
PatHMV (mail) (www):
As for whether one agrees or disagrees with particular provisions in the agreement, that's not the point. The point is whether that particular provision is so obviously right that it should be imposed on every nation, every state, every community, no matter what.

To the extent such agreements (ALWAYS) exceed those things which are in fact fairly universally agreed, they give up a great deal of popular support they could otherwise achieve. A Convention that limited itself to proclaiming things like "no 12 year old should be tossed in an adult prison," that can gain more popular support than one which declares that there's such a fundamental distinction between a 17 year old and an 18 year old that one can be sentenced to life without parole, while the other cannot. (In reality, the people who write these things think that nobody should, and a lot of the provisions are not so much aimed at promoting children as promoting their own political and policy agendas).

By the way, martinned, go back and read your initial response to my question. Notice how much of what you said included caveats like "could be included in a reservation" and "as long as the treaty leaves to local authorities to decide..." Those are not givens. There was earlier in the thread significant discussion about the effects (or not) of reservations proclaimed by ratifying nations. Moreover, nobody has yet answered my question about enforcement power. Perhaps it has no independent enforcement mechanism, and can only be enforced by the internal mechanisms of the signing states. If so, then that is just more evidence to me that it is meaningless in fact, and not worthy of being described as "law."
8.6.2009 3:03pm
martinned (mail) (www):
@PatHMV: My arguments about treaties, including this one, tend to start from the assumption that states should decide for themselves what to sign up to, and that they should use reservations to make sure they don't sign up to more that they want to. The only reservations that I have a problem with are ones that interfere with the "object and purpose" of the treaty, i.e. reservations that are so big and so important that the state in question might as well not have ratified.

Reservations made should be respected. I have the impression that US courts are quite up to that job, as evidenced by the GITMO cases for example. Those cases are tricky, not only because they concern uncharted waters, but also because the exact international law obligations that the US has in those areas of law are carefully defined with many reservations and declarations. In commenting about these matters, I have often made mistakes (= overlooked certain/all reservations) or argued that certain principles were so fundamental to civilised society that they should apply regardless. IIRC, the US courts have never done any such thing. They have carefully considered the US obligations under the Geneva Conventions, etc., and applied them as written.


As for whether one agrees or disagrees with particular provisions in the agreement, that's not the point. The point is whether that particular provision is so obviously right that it should be imposed on every nation, every state, every community, no matter what.

Actually, whether one agrees with particular provisions is exactly the point. Ratifying this treaty is similar in effect to making a federal law. Like a federal law, it can always be changed. (I'm not entirely sure, but I think a later federal statute can overrule a treaty, if it is sufficiently explicit in its desire to do so.) Like a federal law, whether one agrees with specific provisions is the only relevant question.

Like many similar treaties, the enforcement mechanism consist of a special committee to oversee compliance. Naming and shaming. I assure you, that does work. Recently, the UN human rights committee reviewed the Dutch law, and caused the Justice minister significant embarrassment. (Eg. about Dutch wire tapping law.)

Here's what the UN Convention on the Rights of the Child says about enforcement:


Article 42
States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.

Article 43
1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.

2. The Committee shall consist of eighteen experts of high moral standing and recognized competence in the field covered by this Convention.1/ The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems.

3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.

4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention.

5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting.

7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee.

8. The Committee shall establish its own rules of procedure.

9. The Committee shall elect its officers for a period of two years.

10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.

11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.

12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.

Article 44
1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights

(a) Within two years of the entry into force of the Convention for the State Party concerned;

(b) Thereafter every five years.

2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.

3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided.


4. The Committee may request from States Parties further information relevant to the implementation of the Convention.

5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities.

6. States Parties shall make their reports widely available to the public in their own countries.

Article 45
In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:

(a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;

(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children's Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications;

(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child;

(d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.
8.6.2009 3:36pm
martinned (mail) (www):

Got any examples of Ghana or Somalia changing their behavior because of the Convention?

I'm sorry, but I'm not that familiar with the local politics of Ghana. I cancelled my subscription to the Ghana Times because of delivery problems.


The reality of idiocies such as this Convention is that it interferes with the ability of civilized, developed nations that take legal obligations seriously to craft the rules that seem best for their populations, while doing absolutely nothing to stop the most heinous offender nations.

Isn't it better than doing nothing? Or would you suggest we fix those "heinous offender nations" at gunpoint?


But the rest of the world tends to not like us when we actually impose consequences for misbehavior by nations, and the rest of the world generally dislikes imposing such consequences themselves.

I think you'll find the problem is that unilateral US actions are resented. A treaty such as this one is agreed by all signatories, which is why US efforts to secure compliance would be much less resented, I assure you.
8.6.2009 3:40pm
David M. Nieporent (www):
You don't think the vast majority of countries in the world take the wishes of the US into account when they're contemplating doing (or not doing) just about anything?
I think the vast majority of countries in the world take into account the risks of the U.S. attacking them or imposing economic sanctions on them or the like. But that's entirely independent of whether the U.S. has signed a silly treaty.

Nobody says, "Well, we were going to pass a law which doesn't take into account the best interests of the children, but now that the U.S. has signed the UNCRC, we realize that the U.S. would disapprove so we won't do it."
8.6.2009 4:01pm
EMG:
Dan M.:


I don't think someone should be precluded from homeschooling his children if he teaches traditional gender roles


Really? What if their method of "homeschooling" involves deliberately underpreparing their female children (and unlike the Amish, only female children) for participation in the modern economy? This is non-hypothetical; see, for example No Longer Quivering for testimonies by survivors of this subculture. Although the homeschooling parents are not state actors, I think there may be an equal protection problem if the state turns a blind eye to this practice.

I am afraid that many reasonable conservatives are unaware of what they are getting bed with under the guise of "tradition." The gender roles in some of these communities are not so much traditional as they are pre-modern; they represent an extreme which mainstream American Christians as far back as the Pilgrims would have found unrecognizable. Many "patriarchal" fathers literally believe that their daughters are their property unless/until they transfer deed to the son-in-law of their choice. Another increasingly popular belief in this community is that women should not vote. And so on.

I am a homeschooling parent, myself, and share many homeschoolers' concerns about familial privacy and parental prerogatives. But this issue differs from other ideological concerns that liberals and statists raise about homeschooling, because the content of the teaching impacts the child's life in a uniquely direct way. Regardless of what he may believe, the patriarchalist homeschooler's daughter will have to make her way as an adult in a society where she bears equal legal responsibility for her actions and livelihood. I find it hard to believe that deliberately mispreparing her for that isn't culpable, legally as well as morally. (And that's not even getting into issues of psychological suffering caused by being taught that one is fit only for subservience. As EV has noted, that's probably protected by the First Amendment. But arguably, the measurable aspects of civic and vocational preparation, or lack thereof, implicate the child's own rights in a religiously neutral way which the parent's 1A rights do not trump.)

I would like to charitably assume that your unwillingness to have the state put limits to this behavior is based on not knowing about the extremes to which the behavior sometimes runs. If not - if your take is still, 'no, the sanctity of the family still trumps' - how far would it have to go before you would change your mind? What if families were giving girls, and only girls, radically inadequate preparation in mathematics? (Almost certainly already happening, somewhere out there.) What if somebody decided that he better not teach his daughter to read, lest she upset the divine order by attempting to interpret the Bible independent of male leadership? (I am not aware of any such tendencies, but it would not be theologically inconsistent with this subculture's other beliefs.) Do your intuitions on this vary at all if we switch the classification from gender to, e.g., race? Would white parents who somehow ended up with a black child be within their rights to keep him home and teach him only basic reading, arithmetic, and handyman skills, while daily informing him that he was only fit for subordination to whites?
8.6.2009 4:50pm
Rich Rostrom (mail):
"... 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..."

If a treaty can require Congress to "propose a Constitutional amendment", does it bind all Senators and Representatives to vote for the amendment?

Or, let us suppose, the treaty, ratified by a 2/3 vote of the Senate, requires Congress to do something which it does have Constitutional power to do, but which is opposed by a majority of the House?

Can the Senate, by ratifying a treaty, bind the House to vote for such a measure? Say, an appropriation of funds for some international purpose?

ISTM that any sort of rule that Congress, or either House, is "obligated" or required to take any otherwise discretionary action is flagrantly unconstitutional, because it usurps the authority of the legislature.

BTW, I agree with Prof. Volokh's conclusion that the U.S. should not ratify this treaty. It is over 7,600 words of boiler-plate language, riddled with hidden assumptions and wide open to aggressive interpretation. The authors no doubt mean well, but the history of such measures is not comforting. It is highly unlikely that U.S. ratification will have the slightest impact on the neglect or abuse of children in those countries where children suffer most. Neither will it do more to constrain genuine abuses of children in the U.S. than is already being done. It could, IMHO almost certainly would, facilitate destructive meddling by elite "progressive" activists and bureaucrats by further undermining the authority of legislatures to control them.
8.6.2009 5:27pm
JohnVA (mail) (www):

Isn't it better than doing nothing? Or would you suggest we fix those "heinous offender nations" at gunpoint?

Yet how would signing this treaty provide us with an option other than economic sanctions or military force when dealing with these "heinous offender nations"? I see no benefit for the United States in signing this treaty, nor much for other nations - except that "heinous offender nations" get to crow about how much they "care" for children (because they signed a worthless piece of paper) while doing nothing substantive.


A treaty such as this one is agreed by all signatories, which is why US efforts to secure compliance would be much less resented, I assure you.

Somehow I doubt your assurances. Whether you agree with our actions in Iraq or not, I presume "not", the fact remains that we had legal basis to do so under UN resolutions the Hussein regime failed to comply with after the 1st Gulf War. Now you can argue that the UN and most nations disagreed with our interpretation of these previous resolutions and that's fine. What would be diffferent in this case? How exactly would the UN enforce this treaty?
8.6.2009 5:50pm
JohnVA (mail) (www):

The Convention on the Rights of the Child was created to inspire us to stop failing and start succeeding. It's time to join the world and get on board.

Not terribly convincing. Let those nations in the world that feel the need to sign this treaty for the improvement of their own laws do so while we issue a "thumbs up" statement on the overall goals, while not allowing outside interference in our law-making process. Heck, make it a "two thumbs up with a broad smile and a wink" statement just to make it all the more emphatic.
8.6.2009 6:01pm
Jon Roland (mail) (www):
In the courts of which countries, besides the U.S. can a citizen prosecute a civil claim to enforce a treaty to which that country is a party?

I would argue that, rfegardless of the merits of the terms of any treaty, if one can't go to court in a country to enforce its treaties then so far as that country is concerned, the treaty is worthless, and if it can be enforced in our courts and not in theirs, then it is a empty exercise to enter into the treaty. If we want that the treaty does we can adopt it unilaterally and domestically.
8.6.2009 6:11pm
Tritium (mail):

Somehow I doubt your assurances. Whether you agree with our actions in Iraq or not, I presume "not", the fact remains that we had legal basis to do so under UN resolutions the Hussein regime failed to comply with after the 1st Gulf War. Now you can argue that the UN and most nations disagreed with our interpretation of these previous resolutions and that's fine. What would be diffferent in this case? How exactly would the UN enforce this treaty?


And who gave the U.S. an International Police Power? As I understand it, the Military was limited to defending the United States from Invasion. And was there a power granted in the Constitution that authorized imposing sanctions? If we're to say it's for our own security that foreign nations are prevented from, and monitored for constructing WMD, wouldn't it be equally necessary that all nations be disarmed including ourselves? I thought all contracts required an equal exchange in order for it to be binding. i.e. Performance of labor in exchange for labor.

Hussein feared Iran more than he feared the United States. All he was guilty of was projecting strength where there wasn't any. In a sense, he was protecting his country through words, rather than through weapons. And until we got ourselves involved, he was fairly successful.

Personally, I wish the United States was a little less concerned with what might happen, and more concerned about how its involvement in the affairs of other nations have only proven disasterous to ourselves and those nations. When government gets involved in legislating what is moral or what is not moral, it begins respecting it's own creation of Religion.
8.6.2009 10:19pm
David M. Nieporent (www):
And who gave the U.S. an International Police Power? As I understand it, the Military was limited to defending the United States from Invasion.
You don't understand it. While that might be the ideal, it's not the constitution.
And was there a power granted in the Constitution that authorized imposing sanctions?
If you mean economic sanctions, Congress has the power to regulate commerce with foreign nations.
If we're to say it's for our own security that foreign nations are prevented from, and monitored for constructing WMD, wouldn't it be equally necessary that all nations be disarmed including ourselves? I thought all contracts required an equal exchange in order for it to be binding. i.e. Performance of labor in exchange for labor.
Why are you talking about contracts?
8.6.2009 10:59pm
ReaderY:
Can the United States make a treaty to the effect that states shall be governed by hereditary dynasties? If not, what is the limit on the United State's ability to ratify a treaty on matters the Constitution makes the province of the state, and why should the question of who governs a state be beyond its power while such other domestic matters as criminal laws and rules concerning child be within it?
8.7.2009 2:14am
martinned (mail) (www):

Can the United States make a treaty to the effect that states shall be governed by hereditary dynasties? If not, what is the limit on the United State's ability to ratify a treaty on matters the Constitution makes the province of the state, and why should the question of who governs a state be beyond its power while such other domestic matters as criminal laws and rules concerning child be within it?

I think a reasonable reading of the treaty power would allow the Feds to make treaties in areas of policy that are otherwise reserved to the states, since those states can't do it themselves. (Unlike in Belgium, for example, where the regions and the communities can make treaties with other countries, each within their own area of competence.)

What neither feds nor state can do in the US is sign or ratify any treaty that does something denied to both feds and states, such as the things listed in the Bill of Rights.

FYI, I don't think ratifying an unconstitutional treaty compels Congress or anyone to seek a constitutional amendment. Such a ratification would be null and void as being unconstitutional, and if the instrument of ratification has been transmitted anyway, there would be an issue of international law unrelated to anything domestic.

(Under the Vienna Convention on the Law of Treaties, a ratification that is "manifestly" ultra vires has no effect. If the problem is not manifest, the US would simply be in violation of its treaty obligations until such time as it could lawfully withdraw from the treaty in question.)
8.7.2009 8:35am
Jon Roland (mail) (www):
It is time to just proclaim that Missouri v. Holland, 252 U.S. 416 (1920) was wrongly decided, and in dictum Reid v. Covert,354 U.S. 1 (1957) did not reject the error made in that case:


There is nothing in Missouri v. Holland, 252 U.S. 416 , which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.



The people and the states delegated no such power, and no evidence was offered that they did. We can be sure that if they thought the Treaty Clause were to be interpreted to evade the limitations of powers n the Constitution, they would never have ratified it.

This brings up the subject of the Logic of Judges.
8.7.2009 9:52am
martinned (mail) (www):
@Jon Roland: But then there would be whole areas of government policy where no valid treaty can be made. While I can see why you would like that on policy grounds, but as a legal theory it sounds implausible.
8.7.2009 10:32am
Jon Roland (mail) (www):
martinned:

@Jon Roland: But then there would be whole areas of government policy where no valid treaty can be made. While I can see why you would like that on policy grounds, but as a legal theory it sounds implausible.

Yes, there are whole areas of government policy where no treaty can be made, just as there are where no statutes may be passed or enforced, and no judicial jurisdiction exercised. It is not a matter of policy preference, and as a matter of legal theory, the Constitution defines a legal system of limited governmental powers. That means as a matter of theory there are things government officials are forbidden from doing. That might be unfortable for some people but it is the opposite of implausible.
8.7.2009 11:11am
Jon Roland (mail) (www):
Correction: Should be "uncomfortable".
8.7.2009 11:14am
martinned (mail) (www):
@Jon Roland: Is there any evidence that the drafters of the constitution intended such a result? That they intended whole areas of legitimate government policy to be off limits to treaties? After all, the areas of policy that you would declare off limits includes several fields that traditionally are the subject of treaties, including arguably many extradition cases. (Can the Federal government agree to extradite someone for a crime it does not have the competence to criminalise itself?) This is a pretty drastic way to limit the power of government, and one would expect the drafters of the constitution to be more explicit about it.

That is all the more true since the powers of art. I (8) are the powers of Congress, while treaties are made by the President by and with the advice and consent of the Senate under art. II. If they really had intended to limit the treaty power of art. II to the same areas identified by art. I (8), why not explicitly say so. Surely they must have realised that such a limitation could potentially be quite cumbersome, given that this was a limitation on all government, unlike the limitation of art. I (8). Things excluded by the latter can still be done by state legislatures, and now you're proposing that they limited the treaty power even more drastically, without explicitly saying so?
8.7.2009 11:35am
TruePath (mail) (www):
These objections seem pretty overblown:

1) Why do you think banning capital punishment/life imprisonment for those under 18 is a bad idea? I mean minors are hardly known for their long term planning ability. Do you really think a sentence of 65 years or even 40 years would have significantly less deterrent capacity.

Also I suspect that capital sentences cause more distress not only to the family of the felon but also to the family of the victims. They may want an execution and they might even feel better as a result of a swift execution but the long drawn out saga required for capital crimes is psychologically taxing and if the felon is a minor may be even more stressful.

In short I think there are good heuristic reasons to think no additional deterence benefit is gained by life/death sentences for minors. Since you can always deny parole the implausible additional deterrent value is the only argument against this provision while the chances of rehabilitation and saved money.

2)

"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."


As you point out it doesn't say the only consideration but you don't take the argument far enough. The best interest of most kids would be better served by appropriating a billion dollars from Bill Gates and handing it over. So if Bill Gate's property interest can trump this point what is the issue with parental rights?

3) You are slipping in "the" for "a" again.

4) If it's sensible why wouldn't we want to be bound to the rule. I mean can you think of any case where it would ever be desierable not to let the child express their views freely about issues that affect them? Should they sometimes be gagged? Does it even say they must express them in court? Surely having at least one court appointed individual hear what the child has to say is a good idea.

Also it's analytic that "due weight" should be given to those views. That's just a fancy way of saying, "do the right thing." After all "due weight" could be no weight at all in some situations.

5)


"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."


Wow, that seems to say absolutely nothing at all. Every law every passed ever has been to protect "public safety, order, health or morals, or the fundamental rights and freedoms of others." I mean "morals" is just a catch all term for "things we really think better be illegal but don't have any other justification."

Given the lack of any real restriction in this clause it seems to me that your real worry is purely a federalist one. Namely that such a treaty would give congress power to pass laws implementing it even if it would otherwise exceed their enumerated powers. But c'mon, after Raich can you really view this treaty as a threat to federalism? RLUPA has it's tendrils everywhere anyway.

6) Why is it better to let these benefits pop in and out of existence (I don't think it mandates specific dollar amounts does it?) with public opinion? I mean we don't take the same attitude with free speech, equal protection or a bunch of other constitutional issues. If this is really a good idea why not protect it against misguided future attempts to eliminate it? If we really decide we were dead wrong then we can always repudiate the treaty (and the sort of evidence that could rationally convince us of that should also soften the attitude of the rest of the world to our withdrawal).

But if we are worried about becoming entangled in international treaties that tie up our domestic policy this isn't the place to make a fuss. We should be worriying about all the international narcotics conventions and similarly troubling treaties with much more worrisome impacts on domestic law. Don't waste our political capital objecting to educting children, use it where it matters.

-----------

Ultimately, even if I accept all your objections I don't think it yields the conclusion you desire. International law is happening whether we like it or not and repudiating the convention on children can't change that fact. Indeed, as this convention itself shows much 'international law' isn't truly law at all but vague understandings which occasionally reach the level of precedent. If we want to protect our rights and freedoms we need to influence the evolution of international norms and by showing we can play nicely on benign treaties like this one will give us more leverage on the important issues like free speech.

Transportation and Communication in the 21st &22nd centuries will bring the globe together just as surely as it brought the states together in the 19th and 20th centuries. We can no more stop the march of uniform international norms than a lone state could have saved federalism.

I mean it's not better to let
8.7.2009 3:43pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: Is there any evidence that the drafters of the constitution intended such a result? That they intended whole areas of legitimate government policy to be off limits to treaties?

Of course, and not just to treaties, but to government generally. To understand what the Founders understood you have to get into their legal culture and tradition, and that culture and tradition included the presumption of nonauthority. If a ;power is not explicitly delegated or necessarily implied (not just convenient), then officials don't have it, no matter how much it might be "needed". There is no "doctrine of necessity" clause in the Constitution. The only evidence needed is the absence of any evidence the delegation of a power was intended.


After all, the areas of policy that you would declare off limits includes several fields that traditionally are the subject of treaties, including arguably many extradition cases. (Can the Federal government agree to extradite someone for a crime it does not have the competence to criminalise itself?)

It is an offense against the law of nations to commit a crime in one country and flee to another. However, to get extradiction the applying country must prove subject and territorial jurisdiction,m and some subjects are unconstitutional. Germany should not even apply for extradiction of someone who has published holocaust-denying literature, especially if it was not done on German soil.


This is a pretty drastic way to limit the power of government, and one would expect the drafters of the constitution to be more explicit about it.

They were explicit. Tenth Amendment.


That is all the more true since the powers of art. I (8) are the powers of Congress, while treaties are made by the President by and with the advice and consent of the Senate under art. II. If they really had intended to limit the treaty power of art. II to the same areas identified by art. I (8), why not explicitly say so.

Because the powers of government are not confined to Art. I Sec. 8. Almost every clause of the entire Constitution is about delegations of one kind of power or another, or the restrictions of them.


Surely they must have realised that such a limitation could potentially be quite cumbersome, given that this was a limitation on all government, unlike the limitation of art. I (8). Things excluded by the latter can still be done by state legislatures, and now you're proposing that they limited the treaty power even more drastically, without explicitly saying so?

Yes, although they also did not anticipate that anyone would ever want to make treaties that might impinge on the internal jurisdictions of states.
8.7.2009 5:15pm
John Howard (eggandsperm.org) (mail) (www):
Forgive me if someone has made this point already:

"Best interests of the child" takes into account that the child will grow up and live in this society as an adult, subject to the precedents set by court decisions such as the one affecting him right now. In other words, it wouldn't be in the best interest of a child to award him a billion dollars or redistribute all the wealth of everyone else to him, even though, in that child's particular case, of course he would be much better off for a while. But he'd grow up into a society that was blown to pieces by his award and was now an anarchic chaotic violent mess. So, his best interests turn out not to be his best interests, but the best interests up to the point when they become bad for society.
8.7.2009 9:43pm
Lynn D. Wardle (mail) (www):
Volokh has given a very good summary of some of the obvious substantive and political reasons for opposing U.S. ratification of the U.N. Convention on the Rights of the Child (CRC). There are also several other substantive reasons for concern about the CRC becoming law in the U.S. See Bruce C. Hafen, Abandoning Children to their Autonomy: The United Nations Convention on the Rights of the Child , 37 Harv. Int'l L.J. 449 (1996). Some professors who favor strong legal protection for children and their interests generally have begun question whether the notion of 'children's rights' apart from the rights of parents and separate from the context of family is always or necessarily a good thing.

But perhaps an even more serious concern is how adoption of the CRC by the US would impact the structure of our constitutional allocation of powers of governance. It would seriously alter the balance of "federalism in family law" that underlies how family relations are regulated in the US, and sometimes has a significant impact in major constitutional law cases. See Elk Grove United School District v. Newdow , 542 U.S. 1 (2004). It could effect a go a long way to shift responsibility for setting family policy from the states and to the national government and thus revolutionize the regulation of family law in the U.S.A. It also could further erode the separation of powers by giving federal and state courts some very broad, open-ended standards to "interpret" in ways that allow for the imposition of particular judicial preferences about family policies upon the states.
8.10.2009 12:12pm

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