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According to the Constitution, a treaty can only become part of the "supreme law of the land" if it is accepted by the President and ratified by the Senate. A treaty that has not been ratified cannot govern the United States, regardless of its acceptance by the rest of the world.

Despite its widespread acceptance around the world, no U.S. President has put the CRC before the Senate, nor has the Senate expressed its desire to ratify the Convention. Under traditional principles of international law, a treaty may only obligate a nation which has ratified its provisions, but a growing coalition of international jurists and legal scholars are challenging that conclusion, citing a nebulous legal doctrine known as customary international law.

WHAT IS CUSTOMARY INTERNATIONAL LAW?

In contrast to international treaties, where a specific document is drafted, signed, and ratified, customary international law is an unwritten law, "comprised of the customs and usages among nations of the world." These "customs" can be drawn from three separate sources: the general practice of nations, decisions of international judges and courts, and the opinions of legal scholars. If any of these sources provide evidence of an international "custom," that custom can be declared to have the force of law.

According to the United States' official statement of foreign relations law, "the United States is bound by the international customary law of human rights." Practically speaking, this means that when the meaning of an act of Congress is unclear, the courts should try to interpret it in a way that is consistent with international law and norms.

The only way for Congress to override a tenet of customary international law is to pass a statute explicitly rejecting that tenet. If a majority of Congress does not agree – or if Congress is silent – then customary international law controls.

IS THE CRC PART OF CUSTOMARY INTERNATIONAL LAW?

A practice can be incorporated into customary international law if the laws of foreign nations, the decisions of international tribunals, or the writings of legal academia support its inclusion. Proponents of the CRC cite the opinions of all three sources to claim that the Convention has become part of customary international law.

Widespread International Acceptance

There is significant support among the legal community that international human rights agreements which have been widely ratified are part of customary international law. The CRC has been ratified by every nation in the world, with the exception of Somalia and the United States. Indeed, "no other treaty, particularly in the human rights field, has been ratified by so many states in such an extraordinarily short period of time." Based on its widespread approval, an American federal judge has already declared that the CRC has become part of customary international law, and that the United States is bound to honor its provisions.

The Supreme Court looked to widespread acceptance of the CRC in the 2005 case of Roper v. Simmons, which dealt with whether the juvenile death penalty was cruel and unusual punishment. Instead of confining its discussion to American law and legal principles, the Court looked to foreign laws and customs, concluding that the United States was "the only country in the world that continues to give official sanction to the juvenile death penalty." The Court stopped short of saying that international law decided the case, but instead found that the customs of the international community provided "respected and significant confirmation for our own conclusions."

The Court in Roper looked specifically to the Convention on the Rights of the Child as an indicator of international consensus, noting that the treaty had been ratified by every nation in the world, except for the United States and Somalia. The wide-spread acceptance of the CRC added to the Court's confidence that they had reached the right decision, and strongly suggests that American judges will continue to look to the Convention for guidance in decisions, even though the United States has refused to ratify it.

Decisions of International Tribunals

The European Court of Human Rights has referenced the CRC to support its holding that the state has a duty to intervene in the family if parents are failing to meet the basic social needs of their children. In two separate cases, the court has declared that the CRC sets forth "the human rights of children and the standards to which all States must aspire in realising these rights for all children," and has used the CRC to aid in interpreting other international human rights agreements, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The European Court of Human Rights is not alone in its assessment. According to the Inter-American Court of Human Rights, an international tribunal with jurisdiction over North, South, and Central America, the widespread ratification of the CRC is evidence of "a broad international consensus" in favor of its principles. The Inter-American Court has also declared that the CRC forms part of a "very comprehensive international corpus juris for the protection of the child," and has used the CRC to interpret "other treaties concerning the protection of human rights in the American states."

Opinions of Legal Scholars

Unlike treaties and international agreements, which are crafted by national governments, the contours of customary international law are crafted by "the people that care; the professors, the writers of textbooks and casebooks, and the authors of articles in leading international law journals."

In general, many jurists and scholars consider international human rights agreements – such as the United Nation's Universal Declaration of Human Rights – to have attained the status of customary international law because of their widespread nature. According to the federal Ninth Circuit Court of Appeals, agreements that have been signed and ratified by nations across the globe constitute "evidence of customary international law."

This legal elite repeatedly points to the treaty’s widespread acceptance, the "unprecedented degree of formal commitment" that has been pledged to it, and how it has fostered "positive changes in law, policy and attitudes towards children's welfare in numerous countries" as evidence that the CRC sets forth international customs of behavior that should be binding across the globe.

WITHOUT OUR CONSENT

Even though the United States has refused to ratify the Convention on the Rights of the Child, the CRC can still have a tremendous affect on U.S. law. If the Convention is co-opted into customary international law, its provisions will shape how our law is understood, and could even be used to pressure American lawmakers and judges to craft new policies to satisfy America's "international obligations." In effect, the Convention would be imposed on the United States – with or without our consent.

SOURCES

Alston, et. al., eds., Children, Rights, and the Law (1992)

Alvarez-Machain v. United States, 266 F.3d 1045 (9th Cir. 2001)

Beharry v. Reno, 183 F.Supp. 2d 584 (E.D.N.Y. 2002)

Case of Maire v. Portugal, European Court of Human Rights, 48206/99 (July 2003)

Case of Sahin v. Germany, European Court of Human Rights, 30943/96 (July 2003)

Case of Sommerfeld v. Germany, European Court of Human Rights, 31871/96 (July 2003)

Inter-American Court of Human Rights, Judicial Condition and Human Rights of the Child, Advisory Opinion OC-17/2002 (August 28, 2002).

Maria v. McElroy, 68 F.Supp. 2d 206 (E.D.N.Y. 1999)

McGuinnis and Somin, "Should International Law be Part of our Law?" Stanford Law Review (2007)

Restatement (Third) of Foreign Relations Law § 701

Roper v. Simmons, 543 U.S. 551 (2005)

Rutkow and Lozman, "Suffer the Children?: A Call for United States Ratification of the United Nations Convention on the Rights of the Child" Harvard Human Rights Journal (2006)

Stentzel, "Federal-State Implications of the Convention" in Children's Rights in America (1990)

Todres, et. al., eds., The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications on U.S. Ratification (2006)

"Ratification of the CRC." Office of the High Commissioner of Human Rights, United Nations