United States Violation of the International Convention on the Rights of the Child

D.W. Duke – SCE legal Department

 It is perhaps ironic that the United States , the nation most commonly associated with humanitarian activities throughout the world, has historically been one of the most reticent nations to ratify human rights treaties.  It was not until 1988 that the United States first ratified a major human rights treaty when President Reagan, with the advice and consent of the Senate, signed the Genocide Convention.  Beginning in 1949 the Genocide Convention had been submitted to the Senate on numerous occasions without success.  Prior to the ratification of the Convention numerous human rights treaties had been submitted to the Senate none of which were approved for ratification.  President Carter submitted five separate

human rights treaties during his administration not one of which received Senate approval. 
The failure of the United States to ratify human rights treaties has been an issue of concern for human rights activists who often
allege that this refusal arises out of fear that a self executing treaty (a treaty provision that is effective without additional legislation to render it enforceable) would supersede US federal statutes.  Article VI of the US Constitution provides in pertinent part, “. . . this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States , shall be the Supreme Law of the Land.”   Thus, where a federal statute conflicts with a self ratifying treaty that was ratified subsequent to the enactment of the federal statute, the treaty would prevail.  See Whitney v. Robertson (1888) 124 US 190.  In this respect, it is argued, the United States would be surrendering its sovereign authority to an international body which could even mean that the United States could be sued in its own courts, or other courts, by foreign governments for violation of a treaty provision. 

The argument by those who support US ratification of human rights treaties is that where the United States endorses the treaty provision, there should be no conflict with a US federal statute.  Furthermore, the refusal of the US to ratify human rights treaties gives the impression that the United States does not “practice what it preaches” in the human rights arena.  The following is an excerpt from a statement by Charles Yost, Former Ambassador to the United Nations, at the Senate Hearings on International Human Rights Treaties in 1979. S. Comm. For. Rel., 96th Congress, 1st Session (1979).

“There are in my judgment, few failures or omissions on our part which have done more to undermine American credibility internationally than this one. . . Our refusal to join in the international implementation of the principles we so loudly and frequently proclaim cannot help but give the impression that we do not practice what we preach, that we have something to hide, that we are afraid to allow outsiders even to inquire whether we practice racial discrimination or violate other basic human rights. Yet we constantly take it upon ourselves to denounce the Soviet Union, Cuba, Vietnam, Argentina, Chile , and many others for violating these rights. . . Many are therefore inclined to believe that our whole human rights policy is merely a cold war exercise or a display of self-righteousness directed against governments we dislike. . .”

The ratification of the Genocide Convention in 1988 marked the beginning of a shift in US policy with respect to ratification of human rights treaties.  Several important treaties were subsequently ratified including the International Covenant on Civil and Political Rights, the International Convention on All Forms of Racial and Discrimination and the International Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.  Several other treaties were signed by the United States but have not yet been ratified most notable for the SCE campaign is the International Convention on the Rights of the Child.  Although the United States has signed the treaty, as of this date, the US is one of only two members of the United Nations that has not ratified the Convention.  The other nation is Somalia . 

The provision of the International Convention on the Rights of the Child that is of particular concern to the Stop Child Executions is Article 37 (a) which provides,   “(a) No child shall be subjected to torture or other cruel, inhumane or degrading treatment or punishment.  Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age,” [emphasis added]

Although the United States has not yet ratified the Convention on the Rights of the Child, in 2005 the United States Supreme Court, in Roper v. Simmons, 543 US 551 held that the execution of minors for commission of capital crimes violates the Eighth Amendment prohibition against cruel and unusual punishment and the 14th Amendment Due Process rights.   Prior to this decision the United States was one of only nine nations that executed children.  Those other nations were China, the Democratic Republic of Congo, the Islamic Republic of Iran, Nigeria, Yemen, Sudan, Pakistan and Saudi Arabia . Although all of these nations, with the exception of the United States are signatory nations to the Convention on the Rights of the Child, they continue to violate its prohibition against the execution of children. 

Despite the US Supreme Court’s decision in Roper, the United States continues to impose life imprisonment sentences upon minors.   According to Human Rights Watch today there are 2,380 persons serving life sentences without possibility of parole in the United States alone for crimes they committed while minors.  The number of such prisoners in all other countries combined is 8.  (This of course, does not include those who have received sentences of death but are awaiting execution in the nations that impose capital punishment on children such as the Islamic Republic of Iran.)  If the rationale of Roper v. Simmons, supra, is constructive in the context of the death penalty then should not the same rationale apply in the context of life imprisonment without the possibility of parole.  Such extreme forms of punishment violate the 8th and the 14th Amendments to the United States Constitution.  The Court stated: “Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles’ susceptibility to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson v. Oklahoma, 487 U.S. 815, 835. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, supra, at 395. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. 487 U.S. , at 833—838. The same reasoning applies to all juvenile offenders under 18. Once juveniles’ diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty–retribution and deterrence of capital crimes by prospective offenders, e.g., Atkins, 536 U.S. , at 319–provides adequate justification for imposing that penalty on juveniles.”

Some will object to abolishing life imprisonment without the possibility of parole for minors on the theory that these minors will simply repeat crimes upon release from prison.  However, perhaps a more reasonable approach is to say that rehabilitation in a facility separate from adult offenders of serious crimes should always remain a possibility for those guilty of crimes committed as minors.  In the absence of this justified leniency, have we not given up on our youth at a time when they need adult guidance and leadership the most? 

As we approach presidential elections in a few months, an issue of great importance is the ratification of the International Convention on the Rights of the Child.  This matter should be given the highest priority by the incoming administration and the support of everyone who recognizes the importance of this Convention is crucial to the wellbeing and development of our nation’s young people

D.W. Duke
is a principle in the California law firm of Giardinelli & Duke, APC. He received his Juris Doctorate from Washington University School of Law. Mr. Duke is a noted lecturer on various legal matters and has published several books on legal topics including Principles of Liberty, a Practical Guide to Constitutional Law, Understanding and Avoiding Medical Malpractice and California Insurance Law. D.W. assists SCE Campaign with legal research with respect to international convention and obligations and also contributes articles and reports on the subject of Child Executions.