The American Aversion to Treaties

The American Aversion to Treaties

AIDAN MILLIFF —  Examining the Legal Opposition to the UNCRC

republished from the University of Chicago Undergraduate Law Review

Critics of the United States’ failure to ratify a host of UN treaties in the late 20thand early 21st century commonly point to two distinct objections. First, the US was instrumental in drafting each of these documents, which the government subsequently refused to ratify. Second, the US now stands with states like Somalia in not having ratified these treaties. Opponents of ratification, however, allege a number of conflicts in US law preventing the ratification of these treaties. On these grounds, a small minority of Senators have succeeded in preventing a ratification vote.

The chief objection in the Senate concerns the urgency of the treaties. Certain senators assert these treaties are not a matter of urgency because the United States is generally compliant with the treaty stipulations. The purpose of this article is to introduce the treaty ratification system and briefly explore the validity of the legal objections in one such treaty, The Convention on the Rights of the Child (UNCRC). In this case in particular, the assertions of infringement on US sovereignty are poorly supported, and even inconsistent with recent US Supreme Court decisions. It is clear that senatorial objection to the UNCRC does not have nearly as strong a basis in the US Constitution as is asserted, and that the arguments against ratification are motivated simply by politics and passions, not legal principle.

Treaty powers are divided between the office of the President and the Senate by Article II, Section II of the Constitution. The President has the authority to negotiate and sign treaties, but treaties do not bear the force of law until ratified by two-thirds of the Senate. The agency of the President to negotiate terms of treaties is constrained by the Supreme Court decision in the case of Reid v. Covert. The majority opinion authored by Hugo Black stated that executive agreements or treaties had to be made while “observing constitutional prohibitions”.

This argument hinged on the idea that the supremacy clause equated treaties with other laws and acts of congress, which, by precedent extending all the way back to McCullough v. Maryland, may not contradict the Constitution. The effect of Reid v. Covert spawned aconstitutional amendment proposed in 1952 by Sen. John Bricker (R-OH), seeking to preclude the United States from entering treaties contradictory to the Constitution, and prohibiting the ratification of treaties that abridged US Law. The amendment was defeated with the help of President Eisenhower.

The UNCRC was drafted with heavy input by the United States and the executive branch under President Reagan, and signed by Ambassador Madeleine Albright in 1995. Seven articles were drafted by the United States, and three specific articles came from ideas expressed in the US Constitution. The significant opposition to ratification is based primarily on three issues:  capital punishment of minors, which is prohibited in Article 37 of the UNCRC; the rights of parents, allegedly undermined by Article 12; and a broader concern for the sovereignty of the US Federal government.

Article 37 of the CRC prohibits both life-without-parole and execution as punishment for crimes committed by minors. While this article appears to conflict with US law, the Roper v. Simmons decision (2005) declared the practice of executing minors to violate the Eighth Amendment, eliminating one part of the discord between US practices and the CRC. While the CRC prohibits juvenile sentences of life without parole, the practice was affirmed in the United States  by Graham v. Florida ruling to be constitutional in the situation of homicide.  Despite these concerns, the United States is protected by the Supremacy Clause and by the fact that non-compliance with specific articles of the convention yields no penalties. The only action required by the treaty would be for the US to issue a 5-year report of its practices with notes the decision to allow the sentence in question.

Regarding the question on the rights of the parent, the apparent legal conflict stems from an incomplete reading of the CRC. Critics, notably the Heritage Foundation, assert that Article 12 relegates the role of the parent to an advisory capacity by granting broad agency to children. Further, critics believe that Article 29 abridges the parent’s right to select appropriate education for their children. These arguments disregard the deference paid by the convention to the importance and rights of parents in a child’s life. For example, Article 18 states, “Parents … have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.” Article 5 states “States Parties shall respect the responsibilities, rights and duties of parents … to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Here, and in other similarly worded Articles, the CRC emphasizes the parent’s agency and responsibility in aiding the development of the child. By the standard set by Article 18, a parent’s action would only have to meet the broad definition of being in the child’s interest to be endorsed by the convention. The existing social and legal structure of the United States offers similar protection and allows parents similar agency, so, compliance with the treaty would require not curtail the rights of the parent or abridge US law.

The broad definitions, and non-punitive nature of the CRC negate apparent conflicts between US law and practice and the articles of the convention. Standing US law and legal precedent often go beyond the convention in terms of restricting behavior and ensuring the rights of children. Based on this evidence and the impotence of legal objections raised by opponents of ratification, the dispute over the UNCRC should be seen as wholly political, and motivated by unfounded fears of American submission to foreign authority and mores, rather than a practical issue of sovereignty. The US has neglected to ratify the UNCRC because political factions seek to de-legitimize the cooperative process of international law, and it has done so to great detrimental effect for children around the world.