Second Class Citizens

by Catherine Langevin-Falcon

The Humanist magazine, Nov/Dec 1998

On a cold, blustery afternoon in February 1995, hundreds of people gathered at the Cathedral of St. John the Divine in New York City to pay homage to James P. Grant. As executive director of the United Nations Children's Fund (UNICEF) since 1980, Grant had raised public consciousness for the cause of children. Up until his death in January 1995, he had campaigned tirelessly to have all U.N. member countries sign the Convention on the Rights of the Child-the first comprehensive instrument of international law concerned exclusively with children's rights. Put he had been unable to convince the United States to accept the convention.

Then, in a poignant speech at that memorial service, Hillary Rodham Clinton made an announcement that took everyone by surprise: the United States would sign the Convention on the Rights of the Child. It was a fitting tribute in death to a man who had championed the rights of children all his life. "We owe it to him and to the children of the world, to whom he dedicated his life," said Clinton. The audience in the pews rose to its feet and the sound of applause filled the cathedral.

Two weeks after the First Lady's announcement, then-U.S. delegate to the United Nations Madeleine Albright signed the convention on behalf of President Clinton. The treaty was signed "subject to ratification," meaning that the United States generally agrees with the treaty's provisions and will refrain from acts that would defeat the treaty's objectives but will examine those provisions thoroughly before ratifying the instrument.

Nearly four years later, however, that examination is still pending and action is unlikely to occur at any time in the near future. Because of procedural restrictions and a political environment that is not conducive to ratification, President Clinton has yet to send the convention to the Senate for the "advice and consent" required by the U.S. Constitution. The First Lady's announcement now rings hollow, as does the goal to achieve an ambitious yet feasible agenda for the well-being of children by the year 2000.

Today, the United States and Somalia are the only two countries in the world which haven't ratified this treaty. And since Somalia is a country with no internationally recognized government, the United States essentially stands alone as the last holdout to legally guarantee children the same full range of human rights for survival, protection, development, and participation in society agreed to by 191 other sovereign states.

Historically, the United States has been slow to ratify human rights conventions. For example, it took forty years to ratify the Convention on the Prevention and Punishment of the Crime of Genocide (adopted by the

U.N. General Assembly in 1948; ratified by the United States in 1988).

In the case of the Convention on the Rights of the Child, the ratification process has been hindered by conservative groups, which are generally opposed to the treaty and have been vocal in spreading misperceptions and misunderstandings about its content and eventual effect. Republican Jesse Helms, whose Senate Foreign Relations Committee must hold hearings on the convention before it can be ratified, has on a number of occasions expressed his opposition to the convention.

According to Susan Kilbourne, who is affiliated with a number of children's rights organizations and has done substantive work in documenting such opposition rhetoric, "The official line is that the convention is under State Department review, but the political reality is that it's not going anywhere until the political climate changes."

Indeed, House Resolution 3017, introduced in November 1997 by Independent Representative Bernie Sanders of Vermont, calling for ratification, appears to be stalled in Congress. Kilbourne found that, for every letter received in the Senate in support of the convention, one hundred are received in opposition. "The standard, mechanical type of argument is that the convention is another example of the U.N. trying to take away U.S. sovereignty," she said. "The other argument is that the convention usurps parental rights. Both are fallacies."

To answer the first argument, Kilbourne explained that the United States views all human rights treaties to be non-self-executing; in other words, they can be enforced only through legislation. But in all countries where the convention is in force, compliance is strictly voluntary. States parties (that is, countries that consent to be bound by the treaty's provisions) can't be prosecuted; the United Nations can't impose sanctions.

Regarding parents, Kilbourne pointed out that nowhere in the convention is there any indication that it can be enforced against parents. On the contrary, the importance of family and of the parents' role and responsibility in a child's upbringing and development is underlined in the preamble and throughout the entire instrument. For example, Article 5 affirms that

"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."

She maintains that the civil and political rights stipulated in the convention-freedoms of expression, religion, and association and the right to privacy-are protections against government intrusion and not against parental guidance.

Of course, the arguments being aired today are only an extension of those heard during the drafting of the convention. "Particularly at the beginning, the process of drafting was long, not progressive, and very difficult," said Marta Santos-Pais. Now UNICEF's head of evaluation, policy, and planning, she was one of the Portuguese government's delegates on the drafting of the convention.

States wishing to initiate the multilateral treaty-making process through the United Nations do so by proposing a draft treaty to the General Assembly or other organ. A body of experts-such as the International Law Commission, which drafted the Vienna Convention on the Law of Treaties and conventions on diplomatic relations, among others, or the Commission on Human Rights, in the case of most human rights treaties-is charged with the task of formulating the treaty. Committees composed of lawyers representing their governments meet for about a week or two each year until the wording is finalized.

Drafting of multilateral treaties is a process of consensus, and the language ultimately adopted is a whole host of compromises. Every word in every paragraph of every article is subject to debate, and the debate can be greatly protracted. The Vienna Convention on the Law of Treaties took twenty years to draft; the Convention on the Law of the Sea took nine years, after five years of preparation; and the Convention on the Rights of the Child took nearly ten years to draft. "What comes out at the end can be entirely different than what is put forward in the beginning," said Philip Alston, a professor of international law who was involved in drafting the child rights convention from 1980 to 1988 at the Palais des Nations in Geneva.

After three critical readings, the convention was finally adopted by the U.N. General Assembly on November 30, 1989, and entered into force (in other words, became international law binding on states parties) in September 1990, after a thirty-day waiting period following its ratification by twenty countries. "What began as a vague and limited proposal ended up being quite comprehensive," said Alston, now head of the law department at the European University Institute in Florence, Italy, and chair of the U.N. Committee on Economic, Social, and Cultural Rights.

Two drafts were proposed by the Polish delegation to the Human Rights Commission. The second draft, in 1979, was based on principles articulated twenty years earlier in the U.N. Declaration of the Rights of the Child, a non-binding statement of children's rights, and formed the basis of the present convention. The Working Group on the Convention on the Rights of the Child was charged with broadening the scope of the draft to affirm a full range of human rights for children-civil and political as well as economic, social, and cultural rights-and modifying the language of the treaty as would befit a legally binding instrument.

The Working Group was made up of members of the Commission on Human Rights and observers. The observers included delegations of non-member governments, nongovernmental organizations (NGOs), and U.N. agencies, including the International Labour Organisation (ILO), the United Nations High Commissioner for Refugees (UNHCR), and UNICEF.

Until the second reading in 1989, the drafting process was a reflection of the existing Cold War: the West, where political and civil rights were the main concern, facing off against the East, concerned mainly with economic, social, and cultural rights. But according to Santos-Pais, with the geopolitical change that was taking place, "Our differences became less important. The emphasis was on commonalty."

Brought into the process were the South (that is, developing countries), with its different philosophical perceptions of children and different legal systems, and the NGOs of the United Nations, which put forth politically "neutral" proposals. Consequently, the convention is "much fuller than we could have imagined," said Santos-Pais.

Cynthia Price Cohen, executive director of the Child Rights International Research Institute, said it was "quite miraculous" that the treaty's basic premises could be agreed upon. Price Cohen represented an NGO group at drafting sessions from 1983 to 1988 and at the second reading of the draft in 1989. "International agreements come from sovereign nations," she said, "and no one wants to give up its sovereignty. You might say they are semi-willing partners."

The presence of even one dissenter can send an article back to be redrafted or discarded if no consensus can be reached. Santos-Pais recalled the "very long, very tense" negotiation over the definition of a child in Article 1, which pitted those drafters who represented the idea that a child begins at conception against those who represented the idea that it begins at birth. The text that was finally adopted avoided the issue altogether: "For the purposes of the present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier."

Similarly, a concern raised by Catholic and Islamic groups about a child's freedom to have or to adopt a religion-stated as a human right in the International Covenant on Civil and Political Rights-was resolved by affirming merely a child's right to freedom of thought, conscience, and religion, subject to appropriate parental guidance:

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others.

"In the end, it was a weak compromise," Price Cohen told me.

The compromise text that usually ensues in a process of draft by consensus is a minimum denominator upon which states parties to a treaty can agree. Such a common ground succeeds in not serving the interests of any one country and is decidedly an advantage in that it will invite the greatest number of nations to ratify the instrument. But the process can be a fragile one when one delegation decides to stand in the way-as the United States did in the debate over Article 38 of the convention, concerning the age at which children could be engaged in armed conflict.

Over the course of the drafting, NGOs had lobbied in favor of a provision that would prohibit children under the age of eighteen from taking part in hostilities, and, by 1989, more and more government delegations adhered to that principle. But because the United States held out and other countries followed its lead, there could be no consensus. As a result, a minimum age of fifteen was adopted: "States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities." "Everyone was furious," said Meg Gardinier Lawder, former executive director of the North American office of the International Catholic Child Bureau, one of the NGOs that participated in the drafting.

Delegations to the Working Group see the minimum age text as an unfortunate aberration, given the important contribution the United States made in drafting the instrument, especially those articles relating to civil rights. Article 38 is now the only article that contradicts the basic definition of a child as up to the age of eighteen, as stated in Article 1.

Many NGOs and government delegations feel that conceding Article 38 was a failure of the drafting process-ironic, in a way, given the United States' continued disinclination to ratify the treaty. Meantime, NGOs are lobbying for an optional "protocol"-a separate agreement annexed to the convention-that would raise the minimum age to eighteen.

Multilateral treaties, like the Convention on the Rights of the Child, are a means by which the nations of the world seek to conform to a body of principles governing their actions and relations with each other. These agreements, concluded among states in written form and subject to international law, exist in a number of areas: human rights, diplomatic relations, trade and development, communications, the environment, the sea, and outer space, to name just a few. They themselves are subject to provisions of the Vienna Convention on the Law of Treaties-the "treaty of treaties"- adopted by the U.N. General Assembly in 1969.

As of August 1998, there were 494 multilateral treaties entrusted to the U.N. secretary-general for registration and recording in what is known as his depository function. These instruments-bound in thick leather volumes, their texts in the six official U.N. Languages, followed by pages of bold signatures by presidents, prime ministers, and those delegates given full powers to sign on their behalf-are kept in three dun-colored Mosler combination safes, each about the size of a large filing cabinet, in the U.N. Treaty Section of the Office of Legal Affairs on the thirty-second floor of the secretariat building in New York City. Some 40,000 other treaties, mostly bilateral, and another 40,000 subsequent actions, including the instruments of ratification by which countries agree to be bound by the provisions of a treaty, are kept on the ceiling-to-floor shelves that fill the walls of the Treaty Section.

In their rather unpretentious home, these treaties collectively codify the principles of international law that serve to promote global peace and security, to advance friendly relations and cooperation among nations, and to protect human rights. When I visited the Treaty Section in June 1997, Andreas Vaagt, the legal officer in the Depository Functions Unit, told me that the Convention on the Rights of the Child had been removed from the safe and sent to an archive on Park Avenue South. Signature by Somalia was not envisaged. The book was closed.

The movement in support of ratifying the convention in the United States is gaining momentum. Increasing numbers of individuals, churches, community organizations, and NGOs are working to educate the public and decisionmakers about the convention and how its provisions would apply in this country.

The Washington Working Group, a capital-based umbrella group, recently delivered to the Senate a sign-on letter urging support. The 170-plus organizations endorsing the convention -including the AFL-CIO, the National Education Association, and the American Association of Retired Persons-represent millions of constituents. Especially active has been the legal community, which has held a number of conferences on the convention. The American Bar Association has proposed a package of reservations, understandings, and declarations (RUDs).

When the United States finally does ratify the convention (advocates believe that it will, eventually), it is likely to do so with RUDs. These would be sent to the U.N. secretary-general along with the instrument of ratification, signed and officially sealed by the U.S. president. Seventy countries have ratified the convention with some statement of conditionality, although these are generally discouraged by the Committee on the Rights of the Child. The committee was established to monitor measures to implement the convention, and states parties are required to report to it within two years after ratification and every five years thereafter.

Lawrence J. Leblanc, a professor of political science at Marquette University, calls the effect of RUDs on multilateral treaties "potentially corrosive," in that they can undermine treaties' legislative function. In his 1996 International Journal of Children's Rights article, "Reservations to the Convention on the Rights of the Child: A Macroscopic View of State Practice," he describes how the traditional practice, whereby all states parties to a treaty would have to consent to any reservations that a ratifying party wished to make, has given way since World War 11 to a principle of "universality."

As stipulated in the Vienna Convention on the Law of Treaties, states parties can make reservations as long as they are not incompatible with the object and purpose of the treaty (unless the treaty specifies otherwise). The earlier practice is generally believed to have defended the integrity of treaty provisions, while the later practice has made it possible for more states to ratify treaties. "The question remains, however, whether or not the more flexible rules have actually broadened the acceptance of treaties," writes Leblanc.

With or without reservations, the real practical impact of human rights treaties is not felt immediately in the states which are party to them but, rather, in that they serve as standard-setting instruments. In the United States, the Convention on the Rights of the Child would provide a more thorough and comprehensive framework for child rights legislation at federal, state, and local levels, thus contributing to the development of policies in favor of children. This need is especially critical given the absence in the high levels of the Clinton administration of a representative devoted solely to children's and family issues. Ratification would establish a firm ground on which Americans can demand that government protect children's rights. The recommendations of the Committee on the Rights of the Child, while not legally binding, would bolster any pressure the public might bring to bear.

The Convention on the Rights of the Child is an international statement of a child's fundamental human dignity. How can we as Americans accept that the affirmation of fundamental children's human rights is nearly universal with the exclusion of our own country? As we celebrate the fiftieth anniversary of the Universal Declaration of Human Rights, are we condemning children to a fundamental level of dignity less than adults? "The United States is not getting the message," said Cynthia Price Cohen. The challenge remains to convey to Americans the idea that "not only does the convention provide a better life for children but the whole world supports this view."

Catherine Langevin-Falcon holds a master's degree in history and is doing graduate work in journalism at New York University.

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