May 14 2009
UN Treaty on Child’s Rights Legally Binding, and Absurd
by Michael P. Farris, J.D.
May 1, 2009
Child-rights advocates seeking to convince the U.S. Senate and the American public to ratify the United Nations Convention on the Rights of the Child (CRC) are pursuing a curious line of reasoning. They say we can ratify the treaty, which preempts parents’ fundamental rights to direct the upbringing and education of their children, without incurring binding legal obligations. They argue that American legislators will choose how much, if any, of the treaty to implement.
Jonathan Todres, a professor at Georgia State, told the Associated Press that American parental rights would be safe because UN treaties contain “no enforcement mechanisms or penalties.” Meg Gardinier, who chairs a coalition of groups supporting the U.S. ratification of the treaty, told the AP, “No UN treaty will ever usurp the national sovereignty of this country.”
This smacks of the kind of American diplomacy the left demonizes whenever conservatives suggest that America “can go its own way.” Ratify the treaty, they say. It’s not legally binding. We can choose what to obey and what not to.
This argument is not only patently hypocritical, it is legally wrong.
The most important principle of international law is: pacta sunt servanda (agreements must be kept). In other words, keep your promises.
Make no mistake, whenever the United States ratifies a treaty it enters into a binding legal obligation to comply with its terms. Arguing that a treaty is a mere philosophical statement of intent with no binding legal consequences is blatant error. Besides, what message does this send to the international community the Obama administration seems desperate to please?
Arguing that America can enter into treaties and then comply on a piecemeal basis undermines our international reputation. Worse, it suggests that America cannot be trusted to keep its promises.
It is not difficult to discern the legal impact of a ratified treaty on our domestic law. It’s spelled out plainly in the text of the U.S. Constitution. Article VI states that, along with the U.S. Constitution and federal law, ratified treaties “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Treaties trump state law.
The CRC is a comprehensive treaty covering the economic, social, political, civil, and cultural rights of children. No area of our law regarding children lies outside of its scope. And virtually all American law on children comes from the laws of our 50 states. Yet our Constitution says treaties override state laws.
How would this work in practice?
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