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 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
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),
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,"
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
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
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
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
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
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
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.