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Yet Another Reason Not To Sign the U.N. Convention on the Rights of the Child:

Prof. Peter Spiro (Opinion Juris) responds to my earlier post, saying (among other things):

First, joining the Convention makes sense in a conventional national interests analysis. America's failure to join will cost it more than signing on. There is already a drumbeat on the subject: US nonparticipation is a boilerplate punchline among international actors critiquing US human rights practice. That doesn't present a direct harm to US national security (in, say, the way that Guantanamo has), but it nibbles away at the national interest. Given the small cost of participation (especially as conditioned by some reasonable package of reservations and understandings), ratifying the treaty looks the preferred, rational choice.

But even if we don't sign on, the convention's substantive terms will insinuate themselves into US practice. Eugene assumes that the US can say no to the CRC, that America can insulate itself from universal international practice (to anticipate Ken's objection here, universal at some core discursive level even if many other countries have attached significant reservations to their ratification). I don't think so. There are too many entry points for international law, including through state governments, nonstate actors, and the courts.

Take the CRC provision barring life sentences for juvenile offenders, among those which Eugene finds objectionable. I'd be willing to make a small bet that within the next 20-25 years that practice is halted in the US, whether or not we formally join the CRC. It might be the courts that put a stop to it, a la Roper. It might be state governments that come around on their own, in the face of ramped-up international static. Nonstate actors (including academics) will be a part of the picture. In any event, the international norm will be a driver. That is, the fact that international law has moved to ban the practice will be consequential, policy aspects of the question aside. That's something that international law skeptics have trouble understanding: the material power of international law.

Now, as I argued in my original post, I find the "foreigners dislike us for our not signing the Convention" argument to be unpersuasive. In principle, I'm fine with doing (cheap) things to produce foreign goodwill that might eventually translate into material benefit for us. I'm just skeptical that the sorts of "international actors critiquing US human rights practice" to whom our nonparticipation in the Convention is "a boiler punchline" will really change their views about us if we ratify in the Convention; and I'm also skeptical (though more tentatively) that those listening to them will change their views about us.

But Prof. Spiro's post also identifies -- perhaps inadvertently -- why signing the Convention might not be cheap. Displeased as I am with the Convention, I'm much more hostile to other aspects of "international practice," such as the norm that governments must suppress so-called "hate speech," the norm of not protecting an individual right to bear arms, and the norm that governments must suppress certain kinds of anti-religious speech (a norm that is not yet entrenched but that some are trying to create). Yet Prof. Spiro has long argued that such norms are likely to insinuate themselves into American constitutional law, even to the point of leading courts to take a more restrictive view of the First Amendment. And even in the post I quote above, Prof. Spiro has likewise argued that foreign norms are likely to insinuate themselves into American law, even if we don't ratify the Convention.

What can people like me, who like American free speech rules, American right to bear arms rules, and the like do to prevent such erosions of our rights? Well, note that Prof. Spiro's claim that "even if we don't sign on, the convention's substantive terms will insinuate themselves into US practice" isn't a matter of some ineluctable physical law. Rather, it's an artifact of domestic opinion. "International practice" is influential to the extent that it has a high reputation among American decisionmakers, perhaps because they see Americans generally as approving of the influence of international practice. It is much less influential if it is broadly condemned as illegitimate by Americans.

If we accept that we should conform with "international practice," then we'll conform; or if our presumption with regard to "international static" is to change our understanding of human rights and proper legal rules, then we'll change them. But if we broadly adopt a view that our rights are a matter for us, and that we should bristle at foreign attempts to impose foreign "practice" rather than feeling cowed by such attempts, then our legal rules are more likely to be preserved in the state that we as Americans would like them to be without regard to foreign pressure.

Now one possible reaction, of course, might be to pick and choose -- to subscribe to those treaties that we like but not the ones we dislike, to take seriously "international practice" arguments but to reject those we disapprove of, and so on. But as I read Prof. Spiro's argument, such a nuanced response will fail: Even if we consider a proposed treaty and reject it, its "substantive terms will insinuate themselves into US practice" despite our rejection. That's true as to the Convention on the Rights of the Child. It would presumably be similarly true as to international conventions that demand the punishment of so-called "hate speech," or of harsh criticism of religions. We can try to pick and choose, but those that we've chosen to reject will still "insinuate themselves" into our law.

It seems then that the one reaction that will most diminish the chance of rejected rules' "insinuat[ing] themselves" is a thoroughgoing condemnation of the influence of the relevance of international practice, and of the legitimacy of allowing such practice to influence our practice. If case-by-case attention to international norms won't be enough to block those norms that we rejected, then it seems to me that only a broad hostility to international norms will suffice.

So if Prof. Spiro is right about the power of rejected treaties to "insinuate themselves" -- a big "if," I realize -- then I think those of us who deeply oppose some international norms (I mention again the norm of compulsory suppression of so-called "hate speech") need to reject many treaties simply for the sake of rejecting the treaties, so at to better create a culture in which international norms have the least chance of insinuating themselves. Every such treaty that's rejected will help reinforce the protection that our law offers to the independence of our own domestic legal tradition.

To be sure, such rejectionism may sometimes be too costly. If we have something serious and likely to gain from accepting a particular treaty, we should be open to that benefit. But we should recognize that there's always a cost, even of a treaty whose terms are by themselves unobjectionable: the risk that endorsing such treaties (and especially "human rights" treaties) will promote a legal culture supporting the erosion of American legal principles that go against "international practice."

(Of course, to the extent that some people find that they agree more with the "human rights" norms of Europeans than of Americans, they may welcome the replacement of American human rights norms in America with more European norms. I write this post, though, from the perspective of someone who prefers American human rights norms, imperfect as they are, over European norms, and who wants to maximize American flexibility to maintain those norms.)

PatHMV (mail) (www):
Yes. Right on.

What's particularly annoying, to me, is that we, the people (as it were), never actually have a chance to decide what we think are the best practices, on the merits. Prof. Spiro does not say that we must sign the Convention because it is good, and because we would be better off if we followed the provisions of the Convention. No, we must follow it simply because "that's the way things are," and because other countries are signing it. Presumably, the people in the other countries are being told the same thing.

Who, then, actually sat down and decided whether the things contained in this Convention (or any of the others) are actually good or not? The answer, of course, is the international "elite," who formed lovely committees, which usually contain hefty representation from the entire UN, most of whom are undemocratic at best, and despotic and tyrannical at worst.

Why aren't we allowed, in Prof. Spiro's view, to debate whether this convention makes sense for us, for our culture, on the merits? I hate to revert to basic wisdom taught by our mothers, but it remains true that the fact that all your friends jumped off the bridge is not, in and of itself, a good reason for you to do so.

Does Prof. Spiro not understand that what many of us particularly fear is what he refers to as "the material power of international law"? This is why, every time something relevant to this area comes up in a post here, I emphasize that international law only has force on us because we give it force, and there are in fact few really good reasons to do that, in so many cases. "Human rights" activists have been trying for a long time now to piggy back their issues (which often, as Prof. Volokh notes, result in suppression of freedom rather than expansion of it), trying to put them in the same category as (and thus borrow on the traditional prestige of) actual, enforceable treaties that deal with the things that treaties ought to deal with (how countries interact with each other).
8.6.2009 4:38pm
ruuffles (mail) (www):

I'd be willing to make a small bet that within the next 20-25 years that practice is halted in the US, whether or not we formally join the CRC.

Probably sooner than that, at least for non-murderers, since there's two cases already docketed for the coming term.
8.6.2009 4:43pm
D.O.:
Why not to turn things around and try to convince (some) other countries that almost absolute free speech, personal posession of firearms etc. is a good thing? Or are these human rights are good only for American humans?

Another possible take. The more US law will be (as percieved by a large segment of the US citizenry) behind that of the "civilized world" (because, say, of the unsigned generally unobjectionable treaties) the more preassure there will be to change American law by purely domestic means. In the process some of the really objectionable norms might be swept in. Just a thought.
8.6.2009 4:50pm
einhverfr (mail) (www):
EV:

Now, as I argued in my original post, I find the "foreigners dislike us for our not signing the Convention" argument to be unpersuasive. In principle, I'm fine with doing (cheap) things to produce foreign goodwill that might eventually translate into material benefit for us.


I think this more or less misses my problem with the argument you are rebutting.

Signing conventions is nice and all, there are fundamental questions that should be answered first:
1) Would signing the convention really make a difference?
2) Would it be a positive difference?

Unlike most folk (Republican or Democrat), I travel internationally quite extensively. I have had many discussions about American politics with many, many foreigners. The idea that we would be judged by not signing onto such a treaty is, well, incompatible with my experience travelling.

Most foreigners judge us by:
1) Our ideals (very positively)
2) Our successes (moderately positively)
3) Our failures to live up to our ideals (rather negatively to very negatively).

So IMO, the key question isn't what the international community expects, but rather how we expect to live up to our own ideals. This is the question of substance vs. appearance. This means fewer things for show and more things for substance.

In principle, given that our highest ideals as a nation are nearly universally praised even by folks who do not like various US governments (Ecuadorian President Rafeal Correa's statements are fairly interesting in this area), it seems that we shouldn't care so much what other folks think and work instead on meeting these ideals in a substantial rather than merely symbolic way.

This means caring less about what the world thinks about some things and working to become the greatest nation we can possibly be in line with those highest ideals. We should lead by example in this way.
8.6.2009 4:54pm
einhverfr (mail) (www):
BTW, barring life sentences for juvenile offenders may well be in line with our highest ideals. But that is a very difficult question, and it isn't a simple issue of international norms.
8.6.2009 4:56pm
Brennan:
Spiro: "Resistance is futile. You will be assimilated."


I don't know why Spiro even bothers with this argument -- it never convinced the crew of the Enterprise. In fact, it usually just provoked a vicious exchange of phaser blasts and photon torpedoes.
8.6.2009 4:58pm
Steve:
If case-by-case attention to international norms won't be enough to block those norms that we rejected, then it seems to me that only a broad hostility to international norms will suffice.

I don't see the logic in this at all. It doesn't sound any more intuitive to me than "if cutting unhealthy foods out of my diet doesn't make me healthier, then only cutting out all foods will suffice."

A hardline position in which we reject even benign international norms, merely on the grounds that they're international, strikes me as likely to attract less support than a more reasoned, case by case approach. If you vote no on everything, pretty soon people stop asking for your opinion.

Let's take, for example, Prof. Volokh's list of specific objections to this Rights of the Child treaty, some of which strike me as eminently reasonable. There are a variety of possible ways to make the point:

(1) We could ratify the treaty with a number of specific reservations, designed to spell out the ways in which we believe this treaty conflicts with our norms;

(2) We could decline to ratify the treaty, explaining publicly what our specific objections are and that we view those objections as too serious to permit ratification to occur; or

(3) We could decline to ratify the treaty, pursuant to a blanket policy under which we simply don't ratify international treaties.

Seems to me that option (3) has the least chance of getting our point across. And frankly, it's hard enough trying to explain to people why you oppose something as benign-sounding as the UN Convention on Rights of the Child. Imagine trying to convince them that it makes sense to oppose something that actually IS benign as a substantive matter, because you're afraid the slippery slope will lead to importation of completely unrelated, non-benign things down the road. It's a losing position.
8.6.2009 5:00pm
Oren:

What can people like me, who like American free speech rules, American right to bear arms rules, and the like do to prevent such erosions of our rights? Well, note that Prof. Spiro's claim that "even if we don't sign on, the convention's substantive terms will insinuate themselves into US practice" isn't a matter of some ineluctable physical law. Rather, it's an artifact of domestic opinion. "International practice" is influential to the extent that it has a high reputation among American decisionmakers [sic], perhaps because they see Americans generally as approving of the influence of international practice.

Perhaps the correct response then is to formulate a positive view and attempt to shape domestic political opinion with the strength of your substantive positions? I mean, if you truly believe that a substantial Americans will prefer their legal regime (qua, say, hate speech) then it should not be a problem to reference this influence.

I think part of what you are bemoaning is the general slide in public opinion towards European-style values. If that's really the complaint, then either make your point in a more convincing manner or simply accept that the political winds are not blowing in your direction. We don't have the luxury of always being in the majority, you know.
8.6.2009 5:06pm
Oren:

Why aren't we allowed, in Prof. Spiro's view, to debate whether this convention makes sense for us, for our culture, on the merits?

We certainly are, but the point is that rejection in the Senate does not mean that the influence of international norms on public opinion -- and thus the legislatures -- will halt all of a sudden. One of the 'flaws' of being an open democracy is that you cannot 'shield' your citizenry from learning about and adopting the political values and attitudes from abroad.

The best thing that free-speech and gun-rights supporters can do is attempt to convince our fellow citizens (note: this means laying off the hyperbolic rhetoric and apocalyptic claims) of the value of these protections.
8.6.2009 5:11pm
Thorley Winston (mail) (www):
If case-by-case attention to international norms won't be enough to block those norms that we rejected, then it seems to me that only a broad hostility to international norms will suffice.


I don't see the logic in this at all. It doesn't sound any more intuitive to me than "if cutting unhealthy foods out of my diet doesn't make me healthier, then only cutting out all foods will suffice."


The analogy doesn't apply here. What Eugene is probably referring to is the concern that some of our courts have taken the position that by adopting some "international norms," we can and should be bound by ones that we haven't explicitly accepted. In other words if we sign onto some treaties that establish "international norms" on our internal affairs but not others, we could find a court that applies treaties we haven't ratified in its analysis on how we should or must conduct our international affairs. It's more like saying you can't be a "little bit pregnant."
8.6.2009 5:22pm
Kirk:
D.O.
Why not to turn things around and try to convince (some) other countries that almost absolute free speech, personal posession of firearms etc. is a good thing? Or are these human rights are good only for American humans?
Who says we're not? For example, iirc the NRA had a significant advisory role with the (winning) opposition to Brazil's recent anti-gun referendum.
8.6.2009 5:26pm
Avatar (mail):
So North Korea has signed this treaty? I'm certain that I didn't hear news about how they radically rebuilt their entire regime to halt human rights abuses so that they could comply with the UN Convention on the Rights of the Child.

Oh, you say that they didn't actually do anything to implement it? Well, if that's how seriously other countries are taking this piece of paper, why is it worth anything to us in the first place? If we're not going to take our treaty obligations seriously, then it doesn't matter whether we sign any treaties or not. But if we do honor our treaty obligations, then as a matter of course we should not sign treaties with countries who do not!
8.6.2009 5:30pm
Steve:
What Eugene is probably referring to is the concern that some of our courts have taken the position that by adopting some "international norms," we can and should be bound by ones that we haven't explicitly accepted.

Could you cite some of these cases for me? It sounds like such a childlike argument: since we ratify some treaties, that means we're fine with being bound by the ones we didn't ratify as well. I'd like to see how the courts articulate it.
8.6.2009 5:36pm
PatHMV (mail) (www):
Oren... why is the side mentioned by Prof. Volokh the side which must make a substantive case for its preferred policies? Prof. Spiro and those supporting this Convention have thus far made any substantive case why the norms contained in this Convention are good, and better in fact than our existing norms and rules. Prof. Spiro's argument, as noted above, can be summed up as: "resistance is futile." He wants us to adopt it for no other reason, apparently, than that foreign nations already have done so.

I'm all for giving respect to the opinions of foreign nations. I want to know first, though, whether they actually thought these things through, whether these things are supported by the actual populace of the foreign countries which have already adopted it (as opposed to being crammed down their throats by Brussels), and whether, when reviewed closely, the provisions are or are not compatible with our own values. The burden of proof, if you will, is on the people who want us to take the positive action of changing our rules and adopting some international convention. They need to provide better reasons for doing so than "everybody else is doing it."
8.6.2009 5:37pm
einhverfr (mail) (www):
Steve:

I think a bigger question is whether we need this treaty. I do believe that we shouldn't sign unnecessary treaties for the same reason that the Federal government should leave as many areas open to state action only as possible.

We shouldn't sign treaties just because they represent good ideas, IMO. The problem here is that it represents a slide towards the idea that we should be able to agree, internationally, on all sorts of issues and therefore the sort of possible erosion that Eugene talks about.

I am of the opinion that treaties should be used only to determine how nations interact with eachother or to set into place frameworks for those interactions (for example the Geneva Conventions). We don't need international treaties which decide how our government treats the governed. That relationship itself is IMO none of the rest of the world's business and we should take the same view in our relationships with other states.
8.6.2009 5:38pm
D.O.:
@Kirk:
Glad to hear that. I thought of a more philosophical engagement, but direct action is a good thing too. No objection from Brazilians about "foreigners meddling in our affairs"?
8.6.2009 5:42pm
Kirk:
Oh, I'm sure there were objections, but the actual opposition was completely indigenous.
8.6.2009 5:45pm
Dan M.:
Why should I have to convince the public that they shouldn't support legislation or politicians that oppose their Constitutional rights? I mean, of course, we ARE trying to convince people of that. But that doesn't mean that we shouldn't take a stand and remind people that this country is not a democracy, it is a Constitutional Republic, and we have rights that you cannot take away by the will of the majority. And if you try to take those rights away, you will not enjoy the resultant violence.
8.6.2009 6:02pm
Ken Arromdee:
(1) We could ratify the treaty with a number of specific reservations, designed to spell out the ways in which we believe this treaty conflicts with our norms;

In replies to the last post, the other Ken A. mentioned a catch-22: if you add too many reservations, it's considered the same as signing the treaty without reservations.

So no.
8.6.2009 6:08pm
JohnVA (mail) (www):

Take the CRC provision barring life sentences for juvenile offenders, among those which Eugene finds objectionable. I'd be willing to make a small bet that within the next 20-25 years that practice is halted in the US, whether or not we formally join the CRC.

You may be right, but such a change will occur because we as a nation decide to do so based upon our laws and customs and not because of international law.
8.6.2009 6:08pm
troll_dc2 (mail):
@ Oren:


The best thing that free-speech and gun-rights supporters can do is attempt to convince our fellow citizens (note: this means laying off the hyperbolic rhetoric and apocalyptic claims) of the value of these protections.



Yes, yes, yes. There has been way too much crazy rhetoric on this Web site lately. When you start arguing, for instance, that the civil rights laws violate the Thirteenth Amendment, you lose all of the people who might be convinced by a nuanced argument that perhaps there should be some economic activity in which the law leaves the decision to the proprietor's discretion.
8.6.2009 6:10pm
hrl:
einhverfr,

"We don't need international treaties which decide how our government treats the governed. That relationship itself is IMO none of the rest of the world's business and we should take the same view in our relationships with other states."

This is how the world (and international law) worked until, say, 1939. Then this thing called the Second World War, including the Holocaust, happened. And then the world, or what was left of it, decided that the relationship between the state and its citizens was most emphatically NOT a matter of purely internal, domestic concern.

Otherwise, it would be impossible to criticize in legal terms a new Hitler, or the apartheid, or Saddam Hussein's extermination of Kurds, or the Rwanda genocide, etc., etc., etc. And if the idea of human rights qua human rights is to have any meaning, then it is especially those states which are free and democratic that have to participate in it - though states are still free, of course, to refrain from ratifying treaties that they don't like.
8.6.2009 6:10pm
Commodore:
The soul of Hegel lives on in the august Peter Spiro.
8.6.2009 6:15pm
Seamus (mail):
Doesn't Peter Spiro think that treaties *should* be able to trump the Bill of Rights, so that if we ever signed on to a treaty that banned "hate speech," we'd have to get with the international program? (I wonder if the arguments quoted here would lead to the conclusion that, even if we don't sign on to the program, the banning of hate speech could come to be required as part of "customary international law.")
8.6.2009 6:37pm
Rich Rostrom (mail):
"universal international practice"... Prof. Spiro and his ilk are very aggressive in asserting this, but what they really mean is "unanimous agreement among bien-pensant transnational progressives like us".
8.6.2009 6:52pm
Tritium (mail):
Does the U.N. have a police power over the United States? As I recall, the United States wasn't originally given a police power within the state, only for state to state commerce, but not how the state conducts the commerce itself. It appears as if the UN's goal is to create a Catholic World State. (Catholic being Latin for "Universally Accepted".)

The treaty power is basically the power to contract within the limitation prescribed by the Constitution. It cannot obligate the United States to do everything possible to change the Constitution, the only source of power within a Republican form of Government is from the people.

A great debate in Congress and the Supreme Court eventually concluded that all General Powers contained within the Constitution (Treaties, Amendments, Defense, etc) were limited by the Constitution itself. Treaties could only affect trade between the U.S. and the signing foreign state, or the way in which they conduct such business. All wars have been fought because of trade &attempts to control all trade which equalled power.

If I look at the most basic form of Government, I look at a family. Parents have the legislative, executive, and judicial powers. Could a state force a specific punishment for kids who don't complete their homework? Or teased another child? Can the state (or local) government force a universal bedtime for kids age 3-17 based on a study which concluded kids who followed a strict sleeping schedule grew up with a higher degree of responsibility? I believe the original understanding was that in your own home, there is no authority greater than the parents. And in a state, no authority was higher within it's Jurisdiction.

Though today it is slightly different because the Federal Government influences state legislation through federal funding of state projects, which I don't think was thought to be conceivable, since no power delegated, authorized such a process to occur. The States as well as the Federal Government had been delegated a taxing power, limited to paying the debts, defense, and general welfare. General Welfare meaning that it must affect in a general way, and not the ports or revenue of one state over the other.

But perhaps I am getting too off the topic. The U.N. wasn't established by the people, it was established by Government, just like the original U.S. Constitution was. If the promise were to do the best we could to provide for children, then fine. Can you ask a country to do more than their best? It also recognizes that Government does not Constitute Unlimited Powers, but very limited in the U.S. We have to stop thinking that what the Federal Government says, equates the "Word of God". It's jurisdiction is limited by the Constitution, and only a new Constitution could expand powers. The Constitution either Limits the general powers, or, it's pointless to create a limited government, because it can change it's form anytime it wants.

Too many people seem to misunderstand the purpose for written constitutions, and the fact it 'secures' or 'defends' those restrictings on powers delegated, else the power cannot be exercised. If an amendment can secure the rights of an individual, shouldn't the written restrictions of the Constitution also be secured? And if an amendment is all that is necessary to remove these 'restrictions' then should we consider them secure? Doesn't seem like true law, but a manipulation of law. And if a treaty were to obligate anyone within the U.S. or any one of them to legislate in a specific way, we no longer have a Republican form of Government, and then no rights are secured by any document whatsoever.

Liberty seems to have lost its meaning.
8.6.2009 8:11pm
D.R.M.:
Spiro has made a convincing case that the legal academy is an enemy of the sovereignty of the Unites States, and thus by logical necessity an enemy of its sovereign citizenry.

What I'm not sure about is why he doesn't realize the logical conclusion is treating the legal academy like any other openly-declared enemy of the people of the United States.
8.6.2009 9:23pm
Brooks Lyman (mail):
Admittedly a side issue, but the question of life sentences for juveniles really is a very complex subject. Presumably, juvenile is defined as someone under some particular age, probably 18. So what does one do with a 17 year old drug dealer who is guilty of multiple first degree murders. The usual exception is to agree to prosecute/sentence him as an adult. The legal grounds for doing this escape me - I am not a lawyer - but it would seem to me that passing a law forbidding juvenile life sentences would pose some problems with that exception. Obviously, we aren't (or shouldn't be) about to throw a ten year old kid into the slammer for life, even if he poured poison in the water supply (which isn't to say that he might not wind up in a mental hospital for the same period, unless he can definitely be cured).
8.6.2009 9:57pm
Oren:

The burden of proof, if you will, is on the people who want us to take the positive action of changing our rules and adopting some international convention. They need to provide better reasons for doing so than "everybody else is doing it."

Absolutely. Eugene's problem is that, more than not, those that want to change the law in ways that he (myself as well) doesn't approve of tend to be winning that debate.



You may be right, but such a change will occur because we as a nation decide to do so based upon our laws and customs and not because of international law.

But international law shapes the normative and political discussions.


And if a treaty were to obligate anyone within the U.S. or any one of them to legislate in a specific way, we no longer have a Republican form of Government, and then no rights are secured by any document whatsoever.

A treaty can do no such thing.
8.6.2009 11:11pm
Fedya (www):
I distinctly recall hearing reports a decade or so ago that Europe had life plus 70 years for copyrights, while we in the US still only had life plus 50, and that this was an argument for why we should extend our copyrights another 20 years -- to bring them into line with Europe.

By the same token, "tax harmonization" in practice invariably means the big, high-tax countries trying to bully the small, low-tax countries into raising their taxes.
8.7.2009 12:11am
Ricardo (mail):
I am of the opinion that treaties should be used only to determine how nations interact with eachother or to set into place frameworks for those interactions (for example the Geneva Conventions). We don't need international treaties which decide how our government treats the governed. That relationship itself is IMO none of the rest of the world's business and we should take the same view in our relationships with other states.

That may well be the way things should be in your opinion but there is bipartisan support for the idea that it is the U.S.'s business what foreign countries to do their citizens. From China to Cuba to Yugoslavia to Iraq and Afghanistan, both parties routinely cite human rights abuses as arguments in favor of the U.S. stance towards these countries.

One option is isolationism and it is perhaps the preferred option of those most strongly opposed to U.N. treaties (or to the U.N. in general). But the political status quo doesn't show any sign of changing and as long as the U.S. reserves the right to invade or impose sanctions against a country for abusing its citizens' rights, it certainly can't argue these abuses are nobody's business and should not be subject to treaties.
8.7.2009 12:27am
Steve:
I distinctly recall hearing reports a decade or so ago that Europe had life plus 70 years for copyrights, while we in the US still only had life plus 50, and that this was an argument for why we should extend our copyrights another 20 years -- to bring them into line with Europe.

Well right, but there's at least reasonable arguments for trying to standardize laws that have a substantial effect on commerce. It may be a bad idea to create situations where a work is in the public domain in one jurisdiction but copyrighted everywhere else.

The arguments for standardizing criminal laws, or social norms, seem to be much less solid.
8.7.2009 12:53am
Avatar (mail):
Other nations are welcome to attempt to influence us through reason and debate, through the example of their own experiences, or through outright rhetoric. Nothin' wrong with that.

On the other hand, this is clearly a specious argument. "Everyone else has signed this treaty, why won't you?" Well, a good number of the signatories of the treaty have proceeded to ignore it, or interpret its provisions in bizarre ways that mean they aren't actually obligated to fulfill the terms of the treaty. So while the piece of paper has collected a significant number of signatures, the number of countries bound by the provisions on the paper is obviously smaller. There's no reason for us to commit to an international treaty in order to adhere to a "norm" that doesn't actually exist.

All that said, Eugene's arguments are also valid. We're already doing most of the things in the treaty because they seem to be good things to do; we do not need to agree to the treaty to do them. There are things which are in the treaty that we aren't doing now, and not a few of them are things we have deliberately decided not to do, or cannot agree to on a federal level because our federal government does not have the power to make those decisions. Fact is, US states are largely immune to the effect of "ramped-up international static" because individually they don't deal with foreign governments.

And, of course, organized efforts to "punish" the US for noncompliance are doomed to failure before they begin. The 800-pound gorilla need not consult the seating chart, after all. There's little reason that we should do anything at all for fear of the disapproval of "the international community"...
8.7.2009 5:15am
Tritium (mail):

Other nations are welcome to attempt to influence us through reason and debate, through the example of their own experiences, or through outright rhetoric. Nothin' wrong with that.

Why waste so much time debating when all you have to do is contribute to campaigns. It's fast, it's easy, and it's effective. Especially when it's other peoples money.
8.7.2009 8:43am
martinned (mail) (www):

In replies to the last post, the other Ken A. mentioned a catch-22: if you add too many reservations, it's considered the same as signing the treaty without reservations.

That's news to me. How did the other Ken A. figure that?
8.7.2009 8:50am
martinned (mail) (www):

We don't need international treaties which decide how our government treats the governed.

You do if you want to acquire the right to also tell others how to treat their governed. Whether the US does want to stick its nose in other people's business is a debate that has gone on since the founding era, with no end in sight.

The only thing I as a foreigner can say is that the US constitution certainly did contemplate such treaties. Otherwise, why not create a dualist system of international law the way the Brits have it, instead of the monist system (theoretically) established by the supremacy clause?
8.7.2009 8:53am
martinned (mail) (www):

Could you cite some of these cases for me? It sounds like such a childlike argument: since we ratify some treaties, that means we're fine with being bound by the ones we didn't ratify as well. I'd like to see how the courts articulate it.

That's essentially my question as well. As I wrote in the earlier thread, my sense from reading the GITMO cases, both in the DC Circuit and the SCOTUS rulings, is that the US courts are very careful about what reservations have been made, and which parts of which treaties the US actually signed onto. Otherwise, this whole mess would have been much simpler.
8.7.2009 9:15am
A.C.:
Isn't the threat of punishing juveniles as adults meant as a specific deterrent? The goal isn't to lock up a bunch of 17-year-olds for life. It's to remove the incentive for gangs run by older people to force a bunch of 17-year-olds (many of whom have the same size and strength as young adults) to do their most serious violence.

It's not that no 17-year-olds do that now, but there's no reason for gangs to exploit people of any particular age. Establishing a bright-line cut-off in the severity of punishment would create that incentive.
8.7.2009 10:37am
Ken Arromdee:

In replies to the last post, the other Ken A. mentioned a catch-22: if you add too many reservations, it's considered the same as signing the treaty without reservations.




That's news to me. How did the other Ken A. figure that?


Here's a quote. IANAL.


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.
8.7.2009 10:59am
martinned (mail) (www):
@Ken Arromdee: Thanks. I already suspected that was probably the argument.

Bearing in mind that the US are not a party to the Vienna Convention on the Law of Treaties (the US have stated that the consider themselves bound by some parts of it, but it is unclear which parts), art. 19 of that Convention indeed forbids the formulation of reservations that "are incompatible with the object and purpose of the treaty". The question is what happens if someone does it anyway. It turns out that is unclear, but the idea that the state making the reservation somehow magically becomes bound by the treaty as written seems to me to be highly problematic. States are never bound by anything they did not consent to. This is what my International Law bible, Shaw (2003), says on the topic (p. 828-829):


[I]t is unclear what effect an impermissible reservation has." One school of thought takes the view that such reservations are invalid, another that the validity of any reservation is dependent upon acceptance by other states. While there is a presumption in favour of the permissibility
of reservations, this may be displaced if the reservation is prohibited explicitly or implicitly by the treaty or it is contrary to the object and purpose of the treaty.84 A further problem is to determine when these conditions under which reservations may be deemed to be impermissible have been met. This is especially difficult where it is contended that the object and purpose of a treaty have been offended. The question is also raised as to the authority able to make such a determination. At the moment, unless the particular treaty otherwise provides, whether a
reservation is impermissible is a determination to be made by states parties to the treaty themselves. In other words, it is a subjective application of objective criteria. Once the impermissibility of a reservation has been demonstrated, there are two fundamental possibilities. Either the treaty provision to which the reservation has been attached applies in full to the state that made the impermissible reservation or the consent of the state
to the treaty as a whole is vitiated so that the state is no longer a party to the treaty. A further question is whether the other parties to the treaty may accept and thus legitimate an impermissible reservation or whether a determination of impermissibility is conclusive. All that can be said is that state practice on the whole is somewhat inconclusive.

The rest of the chapter includes some examples of reservations being treated as nullities in the human rights context, but not otherwise.

In this case, art. 51 (2) of the CRC repeats the rule of art. 19 of the Vienna Convention, but does not say who decides whether a particular reservation is inconsistent with the object &purpose.
8.7.2009 11:21am
FWB (mail):
Another reason NOT to sign the UN Convention on the RIghts of the Child: It's not one of the powers "under the authority of the United States". The Feds don't have the authority to get involved. Check out the Constitution and you will not find anything there allowing the US to get involved in this type of "treaty", treaties which can only legitimately be made "under the authority of the United States" and the sum total of "the authority of the United States" is limited to that granted by the Constitution.

Tiocfaidh ar la!
8.7.2009 11:42am
martinned (mail) (www):
@FWB: Why would the list of areas where Congress can legislate, which is in art. I (8), limit the President's power under art. II (2)?


He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur;

The Bill of Rights limits all (Federal) government action, but I'm not sure why you'd think the list of art. I (8) does.
8.7.2009 11:53am
Ken Arromdee:
the idea that the state making the reservation somehow magically becomes bound by the treaty as written seems to me to be highly problematic.

Which may only prove that international law is highly problematic.

The rest of the chapter includes some examples of reservations being treated as nullities in the human rights context, but not otherwise.

I think the "UN Convention on Rights of the Child" is a human rights context.
8.7.2009 12:04pm
martinned (mail) (www):

I think the "UN Convention on Rights of the Child" is a human rights context.

Maybe. The examples Shaw discusses include two ECtHR rulings under the European Convention for Human Rights, where reservations by Switzerland and Turkey were held to be invalid and severable, meaning that the ratification stood but the reservation didn't, and a "highly controversial" General Comment by the - now abolished - UN Human Rights Committee under the International Convention on Civil and Political Rights.

I'm not sure why the rule should be different for "human rights treaties". I think, considering the whole discussion in the handbook, that the better view is that the ECHR is different from other treaties, because it was designed to be monitored specifically by a pretty activist court. The ECtHR was arguably designed to work that way, which is why it can be overruled by the enactment of a protocol. (The most recent one is protocol 14 bis, which was agreed in May, dealing, like so many of its predecessors, with the organisation of the Court.)
8.7.2009 12:20pm
Owen Hutchins (mail):
I'd like to thank you, Prof. Volokh, for bringing these matters before us. I had little idea of the actual provisions of this treaty, but now that I've seen them, I support it even more strongly. Fact is, just about every part you find objectonable, I agree with. I hope we do ratify it finally.
8.7.2009 2:51pm
davod (mail):
"Maybe. The examples Shaw discusses include two ECtHR rulings under the European Convention for Human Rights, where reservations by Switzerland and Turkey were held to be invalid and severable, meaning that the ratification stood but the reservation didn't, and a "highly controversial" General Comment by the - now abolished - UN Human Rights Committee under the International Convention on Civil and Political Rights. "

Hillary is suggesting we need to get closer to the ICC.
8.7.2009 4:01pm
markm (mail):
If North Korea can sign this, it's merely another toothless attempt by the UN to stake out some moral position - under the bizarre view that a General Assembly dominated by kleptocratic third-world dictators, and the bureaucrats they appoint, have some sort of international moral authority. The UN would have been a good idea if it had been created merely as a place for representatives of various nations to meet and attempt to peacefully work out their conflicts of interest. But any claim to moral authority should have been quashed right in the beginning, when it was decided that it was necessary to give the greatest monster of the 20th century, Stalin, an equal vote with the elected governments of the USA, Great Britain, and France.
8.9.2009 8:39am

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