JURIST guest columnist Warren Binford of Willamette University College of Law discusses the Children’s Bill of Rights…

Earlier this month, three House Democrats in the US Congress introduced a resolution calling for the establishment of a Children’s Bill of Rights. But why? The US is already a signatory to the UN Convention on the Rights of the Child, which is the most widely ratified human rights treaty in the history of the world. In fact, both South Sudan and Somalia ratified the treaty earlier this year, which means that every recognized country in the world has ratified the treaty except the US.

The failure of the US to ratify the Convention on the Rights of the Child is especially surprising in light of the treaty’s history. The treaty grew out of two international declarations, the 1924 Geneva Declaration of the Rights of the Child and the UN 1959 Declaration of the Rights of the Child. The 1924 Declaration recognized children’s fundamental political, civil, economic and social rights, proclaiming that “mankind owes to the Child the best that it has to give.”

The 1959 Declaration was necessary due to the dissolution of the League of Nations and expanded the rights highlighted in the 1924 Geneva Declaration to embody 10 core principles, including rights, for example, to education, protection and social security, and to be free from discrimination, exploitation and abuse. Moreover the 1959 Declaration incorporated references to both the UN Charter and the Universal Declaration of Human Rights, making clear that the rights outlined in the 1959 Declaration are in addition to the rights children enjoy as human beings and are necessary due to their special status as children. The US actively participated in the drafting of the 1959 Declaration and voted in favor of its adoption on November 20, 1959. Indeed the adoption of both the 1924 Geneva Declaration and the 1959 Declaration were unanimous (although the US famously failed to join the League of Nations).

Although some countries lobbied for a binding children’s rights treaty after the UN was created, the political will was lacking and so, as with the 1924 Declaration, the 1959 Declaration was a largely aspirational, non-binding instrument. However 20 years later, the political will for a binding children’s rights treaty had grown and in 1979 (the International Year of the Child), drafting began on the Convention on the Rights of the Child. Over 70 countries participated in the drafting process over a ten-year period, including the US. In fact the US was more active [PDF] in drafting the Convention on the Rights of the Child than any other country in the world, proposing text or amendments to 38 of the treaty’s 40 substantive articles. The US participation in the drafting process involved both major political parties and three presidencies (Jimmy Carter, Ronald Reagan and George H.W. Bush) and is largely influenced by US laws (both state and federal) and values with regard to children.

When the Convention on the Rights of the Child opened for signature on November 20, 1989, it broke records for the greatest number of signatories but the treaty’s most active drafter, the US, was nowhere to be found. In fact it was not until February 16, 1995, that the treaty was finally signed by the US. More than 20 years later the Convention on the Rights of the Child continues to sit dormant before the US Senate Committee on Foreign Relations and has never been sent to the full Senate for consideration. What treaties are actively being considered by the Foreign Relations Committee? The Committee recently was schedule to consider eight treaties regarding taxation with countries including Hungary, Poland, Chile and Luxembourg, for example. Without question fair taxation is critical to a civilized society, but so is the recognition of rights inherent to even the youngest of citizens.

Since the Convention on the Rights of the Child is not binding on the US until two-thirds of the US Senate votes to approve the treaty, does the treaty have any force or effect in the meanwhile? Article 18 of the Vienna Convention on the Law of Treaties prohibits a signatory from defeating the purpose of a treaty prior to ratification. Unfortunately as with the Convention, the US has signed, but not ratified, the Vienna Convention. However the US State Department has recognized many of the Vienna Convention’s provisions as customary law. Relatedly in Roper v. Simmons, the US Supreme Court cited the near universal ratification of the Convention on the Rights of the Child as weighing in support of the Court’s decision to ban the juvenile death penalty. The influence of the treaty continues to be evident indirectly as the global community becomes more unified in its shared values vis-à-vis children and their unique rights due to their special status.

Notably the US has ratified other treaties regarding children’s rights. For example the US is a party to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography , the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the Worst Forms of Child Labour Convention. The US is also a party to several family law treaties that relate to children’s rights, including the Hague Convention on the Civil Aspects of International Abduction and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

As a party to these treaties the US recognizes that children have rights and is affirmatively obligated to protect the rights specified in these treaties through compliance with the treaties’ provisions at both the state and federal level. Indeed, under the Supremacy Clause of the US Constitution, these treaties and their provisions have become “the law of the land.” Combine these legal obligations with the US’ obligation not to defeat the purposes of the Convention and it is clear that the US already has a growing body of international legal obligations that, when combined with state and federal law, constitute a large and growing legal framework that recognizes and protects children’s rights. The problem is that they are not summarized in a single document and not all of these authorities rise to the level of Article VI supremacy. So what’s a children’s rights advocate to do?

One option is to call for a “Children’s Bill of Rights,” such as the House Democrats have done. The problem is that the same political partisanship that has prevented the ratification by the US of the most widely ratified treaty in the world will certainly defeat the resolution. Moreover the international community has already invested over 90 years actively drafting a children’s rights framework that has been accepted by every single country on the planet except the US. There is no way that the current Congress could match the time, energy and expertise entailed in drafting the Convention. Nor should it have to in light of the high level of involvement by the US in the drafting process. Anything less than the ratification of that Convention would give American children less than they are owed. And as the 1924 Declaration recognized almost a century ago, “mankind owes to the Child the best that it has to give.” It is time for America to give its children the very best legal protections they are owed and ratify the Convention on the Rights of the Child, once and for all.

Warren Binford is an Associate Professor of Law and Director of the Clinical Program at Willamette University College of Law. She specializes in the advancement of children’s rights worldwide.

Suggested citation: Warren Binford, Does America Need a Children’s Bill of Rights? , JURIST – Academic Commentary, November 9, 2015, http://jurist.org/forum/2015/11/warren-binford-childrens-rights.php.