OVERVIEW AND CONTEXT

The United States occupies a unique place in the global community with respect to the United Nations (UN) Convention on the Rights of the Child (1989) (CRC) and human rights law more broadly. Since the beginning of the modern international human rights movement, the United States has supported the development of many human rights instruments, actively engaging in the draft ing process of various treaties. However, it has moved much more slowly towards ratification of treaties and acceptance of human rights obligations. For example, the US Government took 40 years to ratify the UN Convention on the Prevention and Punishment of the Crime of Genocide (1948), even though it supported the ideals enshrined in it. To some extent, this guarded approach reflects concerns about sovereignty. However, there are deeper philosophical ideas underpinning the US approach to human rights treaties. As Julie Mertus writes, ‘human rights are something the United States encourages for other countries, whereas the same international standards do not apply in the same manner in the United States’. Instead, the United States has argued that its Constitution, specifically the Bill of Rights, demonstrates its commitment to human rights, making the ratification of human rights treaties unnecessary. This stance overlooks the fact that many human rights treaties, including the CRC, cover rights not enshrined in the US Bill of Rights.

Even when the United States has moved to ratify a particular human rights treaty, it has limited its international human rights obligations in several ways. First, it typically has viewed human rights treaties as non-self-executing, limiting their domestic impact. Second, when ratifying a human rights treaty, it usually submits an understanding reflecting its system of federalism, which indicates that the federal government assumes obligations under the treaty, but that it will carry out such obligations in a way that preserves states’ rights. For example, in ratifying the International Covenant on Civil and Political Rights (ICCPR), the United States submitted an understanding that read in part ‘to the extent that state and local governments exercise jurisdiction over such matters, the federal government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant’.