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The Convention on the Rights of the Child 1 (CRC) presents lofty goals for children's rights. It does not, however, present effective enforcement mechanisms for their implementation. This Article attempts to show how the positive goals of the CRC can be implemented via supplemental treaties and national legislation, and by a structured conceptualization of human rights, which renders those rights legally unambiguous.

I. Political Reasons for the United States' Disconnect from International Law

Nearly all states have signed and ratified the CRC. 2 Due to domestic politics, the United States has signed, but not yet ratified, the CRC. 3 The United States has, however, adhered to the optional *794 protocols on Child Soldiers and Child Prostitution. 4 Unlike many optional protocols to United Nations conventions, the optional protocols to the CRC do not provide an enforcement mechanism for the basic rights found in the CRC, but rather provide more precise definitions of the norms in the CRC. 5 Interestingly, in practice, U.S. courts sometimes already invoke the CRC. 6 Although the United States has not ratified it, the CRC is seen by U.S. courts as codifying customary international law, 7 or at least as evidence of customary international law. Prior to addressing these legal points in depth, it is useful to explain the problems of U.S. foreign policy, which explain why the United States takes an idiosyncratic and, indeed, problematic view of the CRC.

The CRC seeks to provide basic human rights to children; to raise *795 standards particularly in third world countries where abject poverty leads to the worst forms of abuse: sexploitation, child soldiers, child trafficking--places where even basic literacy is not attained, to say nothing of medical care or fair labor standards--and to create a monitoring and reporting system to improve the level of protection. Although occasional violations of children's basic rights do occur in first world countries, such are generally exceptional and sporadic, as opposed to systemic and endemic. 8 Child soldiers are just the most obvious example of asymmetric abuse in the third world resulting from endemic poverty. There are no child soldiers in the first world and relatively few child prostitutes. First world countries participate in the basic human rights treaties to set the example to emulate and as a sign of solidarity. This is why the non-participation of the United States is a critical problem: It is difficult to be the role model to emulate when you are not even in the game.

A. A Multilateral Approach to International Law Would be More Flexible and Nuanced than the Failed Unilateralist Policies of the Past

U.S. foreign policy tends to focus on bilateral rather than multilateral treaty relations. 9 This is in marked contrast to other first-world countries, which follow the lead of the United Nations and participate actively in the various human rights conventions promulgated by the United Nations. 10 That represents a weakness of U.S. foreign *796 policy, since it opens the United States to generally unfounded critiques as a non-respecter of human rights, and to justified critiques of unilateralism. The United States does not understand how to use the multilateral United Nations human rights convention system as a part of its foreign policy. Nor do U.S. diplomats understand the power of these laws--laws that other countries adopt, not because they are imposed from above, but because they are attractive due to being well-defined, helping those countries to work toward the universally desired goal of the good life for all. 11 The United States has generally not effectively used this attractive power of well-defined and useful laws to promulgate global norms--rules of international law. 12 Likewise, the United States does not effectively use "soft law"�--non-binding goals that are persuasive evidence of how courts should rule--to influence foreign countries. 13 The United States does not participate in the multilateral United Nations convention system and thus cannot influence it or set the example for expected behavior within that system. 14 The United States' refusal to actively participate in and shape conventions that are adhered to by scores of countries prevents the United States from influencing the content and applications of those conventions. This diplomatic disconnect is a real problem because the United States has fewer options for unilateralism due to massive war debt. 15 Furthermore, unilateralism has hurt the interests of the United States. The unilateralist policies of the Bush administration were self-destructive 16 and perceived as *797 instances of United States global domination. 17 Unilateralism invites conflict and resistance and also ignores collective wisdom. 18 Rather than misperceiving the United Nations convention system as a threat to domestic political interests or of foreign domination of domestic lawmaking, the United States can and should see the United Nations convention system as creating minimal commitments--most of which the United States already meets domestically 19--as ways to advance the mutual interests of the United States and its allies and trading partners in countries where the rule of law is less well developed. Through the use of reservations 20 and the interpretation of remedies as inhering in state parties, rather than individuals, 21 any concerns of United States legislators regarding foreign influence over U.S. courts can be allayed. A careful consideration of the application and development of the CRC would allow it to be used, alongside the various other United Nations conventions, as an instrument of U.S. foreign policy.

B. Religious Conservatism

Part of the opposition to the CRC stems from religious conservatives. Right-wing religious sectarians believe, wrongly, that the CRC impedes the patriarchal family and that it interferes with the parent's ability to discipline children using corporal punishment. 22 *798 Many conservative individuals 23 and groups 24 critique the CRC, generally on religious grounds, believing that the CRC presents a threat to the traditional patriarchal family, that it is backdoor socialism, and similar unrealistic misapprehensions of the role of the United Nations in international affairs. 25 The conservative and religious criticisms of the CRC are simply overstated. 26 Problematic portions can be avoided through reservations or, preferably, qualified with codicils and diplomatic statements to clarify the exact extent of U.S. commitments. The problem with using the CRC as a punching bag against liberal internationalism is that it prevents forming rational, nuanced foreign policies, and also interferes with smooth international relations--including the cross-border adoption of children. 27 The result of the failure to work out an effective cross-border adoption regime is bad for children, as children in orphanages are less cared for than those placed in stable supportive loving families. 28

C. Isolationism

Just as religious fundamentalism limits flexible foreign policy, so too does the U.S. history of isolationism. 29 U.S. isolationism failed to *799 prevent two global wars. 30 The result was millions of needless deaths. 31 Non-engagement even encouraged such bloodshed due to policies of appeasement and political uncertainty as to whether and with whom the United States would ally itself. 32 Although rural Americans understandably wish to heed George Washington's warning and avoid global engagement, 33 the fact of U.S. power 34 makes global engagement unavoidable. The blame, however, is not merely at the feet of the uninformed rural mass; elite liberal urbanites also wish to avoid global engagement because of the costs. 35 Because the United States is so *800 powerful and, for now, locked into expensive wars in Southwest Asia, 36 the United States must overcome its linguistic limitations and lack of foreign policy expertise and engage the world in multilateral diplomacy. The United States is simply too large to ignore foreign affairs and now is too weak to impose its will unilaterally--which may be for the best, since unilateralism failed at great economic cost, and significant human cost, to attain a peaceful, stable world. 37

D. Implications for U.S. Foreign Policy

Isolation resulting from religious fundamentalism, rurality, geography, and linguistic limitations explain, in part, why the United States pursued an ill-conceived unilateralist foreign policy. 38 The CRC is just one example of the United States' inability to marshal the United Nations convention system and place it in the service of U.S. foreign policy. 39 The CRC--like any of the United Nations conventions--could, and should, be part of a flexible, nuanced U.S. foreign policy of constructive engagement with a world it but ill understands due to geographic, cultural, and linguistic isolation. 40 The United States has taken on very heavy debt 41 and has been forced to devalue the dollar, 42 *801 meanwhile its banking system has been further devastated by a private debt crisis in the housing market. The war debt exacerbated the housing crisis. 43 The financial ruin of the United States treasury was wrought by failed unilateralist policies of war after war and torture on top of more torture, 44 because unilateralism meant that the United States could not effectively invoke the material aid of its allies. One can compare the two gulf wars as instances of alliance financial politics. In the first gulf war, the President took a multilateralist approach. 45 As a result, the United States had military and financial support; that war, in financial terms, was cost-free. 46 In contrast, the second gulf war was waged unilaterally, and, as a consequence, the United States had few allies willing to contribute financially, and even fewer willing to contribute militarily. 47 The policies of torture, secret prisons, the use of mercenaries, and assassination repelled U.S. allies and multiplied U.S. enemies: consequently, it is unsurprising that there was little or no military or financial support by U.S. allies for the U.S. wars in Southwest Asia and the Horn of Africa since 2000. 48 Financially, as of 2007 the "global war on terror"� already cost six times as much as the gulf war of 1991 49--and the tab is still open.

Given the negative monetary effects of unilateral policies, the United States needs to shift to multilateral approaches. Rejecting obvious monstrosities such as torture and taking a multilateralist *802 cooperative approach would ease the military and financial burden and also reduce the number of opponents the U.S. faces. The United States has not been a good team player, despite being surrounded--surrounded by friends. Thus, it has not been able to invoke the aid and ideas of close historical allies, exacerbating political isolation. 50

II. The Theory of Children's Rights

The CRC centers children's rights on the "best interests of the child,"� referencing the concept in articles 9, 18, 20, 21, 37, and 40. 51 That is one thing we all agree on: children should be protected and cared for. The problem is that, although the "best interests"� principle sounds good in theory, in practice it is problematic. Are "best interests"� defined culturally, materially, legally, or politically? 52 The treaty itself does not answer that question. 53 That is, the "best interests"� standard is facially indeterminate, vague, and open-ended because it is inadequately defined in the treaty itself. 54 It is also worth noting, for good or ill, that "best interests"� are likelier than not to be defined by Western values. 55 Conversely, it is also possible that the "best interests of the child"� principle "will allow governments to hide behind the veil of culture and avoid addressing human rights abuses of children in their countries."� 56 Though the text of the treaty calls for a child-centered "best interests"� approach to determining children's rights, the reality is generally otherwise: children are generally treated in a manner analogous to the manner in which property is treated in law. 57 There are basic theoretical questions, which children's advocates must address and resolve in order for the ideal of the child's "best interests"� to be implemented in practice. 58 A more exact definition of the child-centered approach is *803 necessary to clarify the ambiguity and to ensure that, indeed, the best interests of children will be served. U.S. interpretations of these ambiguous terms can, however, be provided through reservations to the treaty and declarations thereto. That is, with adequate political will and legal thought, these problems with the treaty can be overcome, at least regarding eventual U.S. obligations under the treaty. In sum: "It should be the goal of the international community to ensure that intercountry adoption is considered as a viable alternative in deciding the best interests of the world's children."� 59

A. Theories of Rights: Generation Theory and "Freedoms From"� Versus "Rights To"�

Part of the problem in accessing the ideas of rights expressed in the United Nations convention system is due to limitations within the liberal model of rights. Properly interpreted, many of the potential objections to the idea of individual rights based on international treaties--as opposed to the U.S. Constitution--can be obviated. First, naturally, any treaty rights must be constitutional to be enforced before U.S. courts, at least within U.S. borders and with respect to U.S. citizens. 60 Rather than seeing treaty rights and constitutional rights as in conflict, international human rights and constitutional fundamental rights are correctly understood as complementary and harmonious. This can be cured by judges: courts rightly presume that statutes, treaties, and the Constitution are not conflicting and interpret them so that their obligations are consistent wherever possible. 61

When we think of fundamental rights, the United States tends to interpret such rights as negative; as "freedoms from"�--generally, as freedoms from government interference, though, occasionally, as freedoms from private prejudice. 62 That is, the United States tends to *804 look at fundamental rights as procedural, not substantive, as "freedoms from"� rather than "rights to."� 63 This is a classical "first generation"� approach to human rights (civil and political rights). 64 Many of the rights described in the CRC are indeed "first generation"� rights and are clearly consistent with the U.S. Constitution: therefore, they would impose no new obligations on the United States. 65

In contrast, however, fundamental rights can be seen as affirmative "rights to"�--as substantive claims to state resources. 66 That is, they can be seen as "second generation"� collective rights (economic, social, and cultural rights). 67 Some "second generation rights"� may be recognized by the United States, at least at the state level--the right to education (which is exclusively a state, not federal object of power) is the most obvious one. 68 "Second generation"� international human rights are seen as problematic by the United States, first, domestically, since they may be seen as imposing new or uncertain obligations on the states. Secondly, affirmative "rights to"� may be seen as somehow imposing obligations on the United States with regard to foreign states. The *805 confusion is not helped by the fact that the CRC does not explicitly define which of its provisions concern economic, social, and cultural rights. 69 Again, reservations and declarations by the United States with respect to the treaty can both shape the treaty and clarify the misconceptions.

The cost of non-participation by the United States in the CRC is this: other states then define the contours and limits of the treaty rules. Those treaty rules then coalesce into international customary law, resulting in rules that ultimately bind the United States--without the United States having contributed directly to the formation of those rules. Thus, by not participating actively in the CRC, the United States exposes itself to eventual customary law commitments, since it never objected to the emerging customary international law. The United States could, of course, strenuously resist and assert its own exceptionalism, seeking to carve out a place for itself as a persistent objector 70 to a custom it rejects. To invoke exemption from customary international law as a "persistent objector,"� the objection must be made unequivocally, persistently, and ab initio--right from the start of the emergence of the international custom. It would be difficult to argue that the United States is objecting to a custom arising out of a treaty that it has signed.

As mentioned, the "best interests"� principle is ambiguous. By active participation in the CRC, the United States can help shape the contours of that principle. There is also ambiguity in the substantive rights that the CRC recognizes. A good typology of human rights distinguishes perfect claims-- i.e., vested rights--from imperfect claims, and also distinguishes between affirmative "rights to"� and negative "freedoms from."� 71 The generational theory of human rights 72 does provide such a typology, to a certain extent. The United States can dispel ambiguities in the convention by a principled, rational application of law expressed through reservations and declarations regarding the United Nations convention system--here, the CRC.

The problem with second generation rights, from the United States' free market, individualist perspective, is that second generation rights are redistributional resource claims, and possibly also the fact that some *806 second generation rights are collective, not individual. 73 Clearly some of the rights in the CRC, such as the right to education, are second generation rights. Many of the second generation rights, however, are already recognized explicitly in the United States, whether constitutionally or via legislation at the state level. 74 Therefore, we must remember that unlike the U.S. Constitution, U.S. treaties are not regarded as superior to ordinary federal legislation within the United States. 75 There is, however, still the problem that treaties between the United States federal government and foreign states are considered the supreme law of the land. 76 That is, the Supremacy Clause of the United States Constitution elevates treaties above ordinary legislation of the several states in the United States, and courts have interpreted treaties to be superior to the constitutions of the several states as well. 77 That makes the process of indicating U.S. commitments via declarations and reservations all the more important.

*807 There is, however, an argument against the view that treaties are superior to state constitutions. The federal government was formed by the consent of the states. 78 Thus, any act of the federal government in opposition to any state's constitution should be seen as ultra vires. The United States federal government is a government of limited, enumerated powers. 79 Treaties that exceed the powers and object of the federal power, which arrogate power to the federal government, are, as a matter of logic, unconstitutional. 80

That is not, however, the current position taken by the United States Supreme Court. Missouri v. Holland suggests that treaties can, in fact, expand the federal power. 81 Foreign policy is exclusively the province of the federal government, 82 especially the presidency. 83 The Court in Holland grounded the power to expand federal power by way of treaty as implicit in the Necessary and Proper Clause. 84 The better view, however, is expressed in Reid v. Covert. 85 There, a plurality of the Court held that a treaty could not violate the Fifth Amendment. 86

One could qualify Holland as applying only to situations where the federal power is implied and where there is no contradiction between the expansion of federal power and the written text of the Constitution itself, including its amendments. Such an argument seems strained. The better view is found through logic, since law is right reasoning in accord with the nature of things. 87 A treaty can be unconstitutional. 88 An unconstitutional law cannot be enforced domestically. 89 A treaty, *808 however, creates an obligation under international law. 90 The validity of a treaty obligation under domestic law is irrelevant to its validity under international law. 91 Such a treaty would bind the United States in its relations to other states overseas. Nevertheless, such a treaty cannot, constitutionally, be given direct effect within the United States. That is the only logically consistent solution: to see the unconstitutional treaty, though a valid international law obligation, as being per se non-self executing at least until the treaty is somehow amended into constitutional conformity. Even there, the issue of whether such a treaty has retroactive domestic effect lurks. Happily this contorted hypothetical, a Gordian knot, is well beyond the topic of this paper and shall not be exposed further here.

In any case, by not declaring and reserving properly due to non-participation, the United States creates conflicting commitments as to the federated states and foreign States.

These fine points of U.S. constitutional law are in all events somewhat moot for two reasons. First, the affirmative substantive claims to resources that the CRC provides are already met either under the United States Constitution, state constitutions, or other laws. 92 Second, any problematic claims can and should be obviated through declarations, reservations, or determinations that the convention does not have direct effect, i.e., that the CRC, or some of its provisions, is not self-executing. 93

*809 The CRC also invokes third generation rights. Third generation rights are redistributional claims. 94 Third generation rights, however, are universally seen as aspirational goals, as hortatory objectives, or as the teleology toward which the law reaches. 95 They are interpretive, persuasive evidence of the extent of positive legal commitments. 96 Third generation rights are neither procedural "freedoms from"� nor are they substantive "rights to."� 97 Third generation rights are merely aspirational goals--they have persuasive, interpretive value as to the extent of other substantive or procedural rights, but only persuasive value. 98 Third generation rights do not create vested rights, but merely define desired goals: as such, however, they are teleologically important to the interpretation of the convention and to U.S. commitments. 99 Third generation rights at first glance seem sweeping, implying a collectivist, redistributionist policy and a strong central State. In reality, however, they are not problematic positive commitments because they merely indicate the goals of the law. Third generation rights present goals: universally desirable goals, goals which the United States is already working toward, and which may be used by foreign states to align their values increasingly toward those of developed democracies--and as persuasive guides to the interpretation and application of positive law.

III. The Practice of Children's Rights Under the CRC

A. Does the CRC Create Directly Enforceable Individual Rights (Self-Execution)

As noted, the CRC is generally a "paper tiger"�: the rights it protects sound good, but are, in practice, often unenforced. 100 This is partly because of a lack of enforcement mechanisms within the convention itself, but also because the CRC likely does not create individually *810 enforceable rights. 101 The treaty on its own terms is not self-executing: it expressly calls for State Parties to undertake implementing legislation 102 to make its normative provisions ("oughts"�) positively binding. The only enforcement mechanism within the treaty itself is the filing of national reports of progress toward attaining the goals of the treaty. 103 The lack of an enforcement mechanism supports the argument that the treaty is not self-executing and only creates obligations of State Parties to other State Parties, not rights held by individuals who are citizens or residents of State Parties. 104 So, exactly how the United States chooses to implement and enforce the CRC is a matter of domestic U.S. law. The CRC obligates the United States to protect children, but leaves it to the United States to define just how to attain that goal.

Treaties operate analogically to contracts; contracts between states. Treaties, in principle, only bind states in their relations to each other. 105 That is, treaties are presumed not to create individually enforceable rights, 106 though that presumption can be overcome depending on the text of the treaty and the intention of the State Parties to the treaty. 107

U.S. treaties are presumed not to be self-executing. 108 A treaty will be found to be non-self-executing: "if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation . . . if the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation, or . . . if implementing legislation is constitutionally required."� 109

Thus, in principle, the CRC does not create rights that may be *811 enforced by individuals, but rather only obligations of states toward other states. That view is strengthened by three facts. First, the CRC does not include any enforcement mechanisms and relies on the State Parties to enforce their rights against each other under the treaty by way of their political relations. 110 Second, Article 4 of the CRC obligates State Parties to implement the norms found in the CRC. 111 This supports the inference that the CRC is not self-executing. The travaux préparatoires (the international equivalent of legislative history) do not indicate whether the CRC is or is not self-executing. 112 Thus, whether the CRC is or is not self-executing is determined by national law. 113 Third, even if the CRC created individually-enforceable legal rights, many of those rights are presented as hortatory goals, not as vested rights. 114 Under the CRC, courts are free, and indeed encouraged, to see their own laws and the obligations of the CRC as mutually reinforcing. 115 U.S. legislation and international obligations are presumed to be consistent. 116 Just as ordinary legislation is presumed to be constitutional, 117 so too is ordinary legislation presumed to be consistent with U.S. treaty obligations and will be so interpreted wherever possible. 118 That is, barring a clear and compelling conflict between a treaty obligation and the domestic law, domestic law will be presumed valid. 119 The obligations of the CRC, however, do not appear to be inconsistent with any laws that this author is familiar with. Thus, on its face, the CRC does not present conflicting obligations to U.S. *812 federal or state legislation--because it creates obligations of the United States (and other State Parties) to each other--not private rights held and enforceable directly by individuals.

The CRC addresses its obligations to States. Furthermore, many of the rights created by the CRC are hortatory goals, not positive vested rights. 120 The transformation of the hortatory goals of the treaty into positive, vested rights under national law is a matter for the State Parties to undertake in their national legislation. This view is reinforced by the fact that, unlike some of the United Nations conventions, the CRC does not include any enforcement mechanism via an optional protocol for enforcement of the rights. 121 Finally, any "direct effect"� of the CRC, that is, the self-executing nature of the treaty as a whole or any of its provisions, must be proven by the party invoking the provisions of the treaty, which is a general principle of treaty interpretation. 122

Regarding the rights created by the CRC, some argue that rights discourse regarding children is inherently problematic. 123 Certain scholars argue that it is paradoxical to accord rights to an ordinarily legally incapacitated subject. 124 Children, especially young children, are generally not granted full legal capacity. 125 Some argue that, as a result, the CRC is ineffective. 126 I disagree. The difficulty with enforcing the rights of children is not the idea that children have rights or any paradox arising from children's legal capacity. Rather, the problem is with the concept of rights itself. Rights discourse is generally ill-considered and *813 is not presented in a historically or logically structured fashion. 127 Further, even if the historical distinctions between first, second, and third generation rights were applied--in conjunction with an understanding of rights as perfect, i.e., vested, or imperfect, as affirmative "rights to"� or negative "freedoms from"�--there is still no enforcement mechanism for such rights within the treaty itself.

B. Reservations to Provisions of the CRC

A reservation to a treaty operates to limit or void application of an article or articles of a treaty to the reserving State Party, to set forth that State Party's view of the meaning of the treaty, and/or to delimit the application of that treaty, namely to stop the treaty from being interpreted to imply legal points that are not in its own terms. 128 Reservations are a very powerful instrument and, since the Vienna Convention on the Law of Treaties, 129 they are an ordinary part of contemporary, international treaty law. 130 The United States is not a party to the Vienna Convention on the Law of Treaties. 131 The Vienna Convention, however, is seen today as a codification of customary international law and is so interpreted by the United States. 132 According to the Vienna Convention, 133 a reservation must not be used to avoid the object and purpose of the treaty, 134 a position found explicitly in the CRC. 135 Reservations, however, may be used to delimit *814 and clarify the impact of the treaty on the reserving state, to express the views of the reserving state unequivocally as to the meaning of the reserved provisions of the treaty, or even of the treaty generally. 136

Simply put, even if the CRC were interpreted to have portions that are self-executing and automatically given domestic effect without any enabling act, the United States could use reservations to avoid and delimit the applicability of any of the articles of the CRC. The non-ratification of the CRC comes down to a failure to use a nuanced and well-crafted multilateral diplomatic approach to protect and advance U.S. interests in a fashion coherent with U.S. allies' views and consistent with U.S. international obligations. Any objectionable portion of the CRC can be reserved out; likewise, the meaning of any contested article, in the view of the United States, can be clarified through the use of reservations. Thus, the CRC should have no negative effect on U.S. foreign policy or domestic law.

C. Subsidiarity

The legal doctrine of subsidiarity is the idea that local control, whenever possible, is to be preferred to control at a federal or supra-national level. The theory stems originally from Catholic theology, specifically from the encyclical Rerum Novarum (of new things). 137 The doctrine of subsidiarity is not expressly written into the CRC. In the CRC, however, the theory is implicitly expressed in the idea of a "national preference"� to adoption, or even foster care or care in an orphanage to international adoption, 138 as expressed in Articles 20(3) *815 and 21(b) (the idea of subsidiarity in another context also appears in Article 5). 139 The United States rightly opposes the principle of "national preference"� in adoption because the principle denies children without parents the opportunity to find parents overseas. 140 Article 21(b) of the treaty states: "inter-country adoption may be considered as an alternative means of [a] child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin."� 141 The United States can avoid the effect of Article 21(b) by reserving its accession to the treaty contingent on the non-application of Article 21(b). Article 21(b) can simultaneously be rendered less harsh in application through the formation of bilateral adoption treaties with potential source countries. That is, multilateral and bilateral initiatives can be made complementary to the CRC and here should be.

Supplementary treaties to complement and complete the CRC are not only consistent with the CRC; they are also expressly envisioned in Article 41. 142 Article 41 makes clear that the CRC establishes global minimum standards--State Parties are not only allowed to, they are also encouraged to obtain the rights of children through their national law 143 and other international laws, 144--that is, (bilateral) treaties. Likewise, Article 11 requires States Parties to "take measures to combat the illicit transfer and non-return of children abroad,"� including promoting "the conclusion of bilateral or multilateral agreements or accession to existing agreements."� 145 Finally, international adoption is also covered by the 1993 Hague Convention in Respect of Intercountry Adoption, 146 a treaty that the United States and dozens of other countries have signed and ratified. 147 Those concerned with opening cross-border adoptions should look to the Hague Convention at least as much as to the CRC to find the remedies to the problem of cross-border adoption.

*816 Possible texts of such a reservation could run along these lines: "The text of Article 21(b) of the treaty says "˜if,"™ not "˜only if."™ Nothing in this treaty shall be interpreted to impede the right of U.S. citizens to adopt foreign children whether under federal or state law. Article 21(b) shall not be applied to the United States."� Article 51 of the CRC specifically permits reservations to the treaty. 148 Furthermore, State Parties are entitled to withdraw entirely from the CRC if they so choose. 149 Thus, ratifying the CRC should have no ill effect on U.S. laws.

D. Regional and Bilateral Treaties to Supplement the CRC

The CRC is intended to establish global minimum standards. It specifically authorizes State Parties to complement and complete the rights and provisions of the CRC through additional treaties. 150 Thus, the United States' penchant for bilateralism, or regionalism with allies, could be pursued in a manner consistent with the CRC. For example, the United States could promulgate an international treaty on adoption and invite allies to adhere to it in order to avoid the harsh application of the subsidiarity principle. The CRC applies subsidiarity and home-country preference to avoid the problem of baby-trafficking. 151 In developed states such as the United States, the problem of institutional corruption is much less of a concern than in developing countries. One way to attain transparent international adoption would be through the establishment of bilateral or regional adoption treaties, which would meet the concerns of the CRC regarding baby-trafficking via transparent mechanisms for smooth and traceable international adoptions. Other declarations and conventions that flank the CRC are thus referenced in the next section for those who wish to pursue a deeper understanding of international rights of children.

IV. Other International Norms That Address Children's Rights

In this section I wish merely to indicate the numerous sources of international children's law, so that other researchers and practitioners *817 can appreciate the body of existing norms that can be invoked before courts.

A. Declarations

United Nations declarations are non-binding. 152 They are evidence of opinio juris--the way states believe they ought to behave. 153 Opinio juris is one element of customary law. 154 Thus, a non-binding norm may have legal effect: non-binding norms can contribute to the formation of customary law, and also can serve as guides to the interpretation and application of positive legislation.
Several declarations of the League of Nations and the United Nations have addressed children's rights. Relevant declarations on children's rights include:
1) The 1924 Geneva Declaration of the Rights of the Child 155
2) The 1948 Declaration of the Rights of the Child 156
3) The 1959 Declaration of the Rights of the Child 157
4) The 1986 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally 158
5) The 1990 World Declaration on the Survival, Protection and Development of Children 159
These declarations are all hortatory and do not themselves create rights, but may be evidence of the opinio juris needed to find the existence of customary law, or serve as interpretive guides for understanding positive laws.

*818 B. The Hague Convention on Intercountry Adoption

The 1993 Hague Convention in Respect of Intercountry Adoption 160 posits the norm that children should have families, 161--the right of the child to a family--and establishes minimum standards for sending and receiving countries to harmonize procedures for the adoption of children throughout the world. 162

C. Labor Conventions

Several labor law conventions also directly or impliedly address the rights of children under international law. These include:
1) The International Labor Organization Convention Fixing the Minimum Age for Admission of Children to Industrial Employment 163
2) The International Labor Organization Convention Concerning the Night Work of Young Persons Employed in Industry 164
Several conventions also address trafficking, indirectly or directly addressing child trafficking. These are:
1) The International Agreement for the Suppression of the White Slave Traffic 165
2) The International Convention for the Suppression of the White Slave Traffic 166
*819 3) The International Convention for the Suppression of the Traffic in Women and Children 167
Finally, other regional conventions address children's rights:
1) The European Convention on the Exercise of Rights by Children 168
2) The African Charter on the Rights and Welfare of the Child 169


As can be seen, there are numerous sources for finding children's rights in international law. Advocates for international children's rights should be aware of these sources of norms in order to effectively represent the interests of children and to shape the concepts of "best interests of the child"� and "children's rights."� Theoretically, scholars should develop the understanding of human rights via the generational theory and via an understanding of (simplicismus) rights as either "procedural freedoms from"� or "affirmative substantive rights to."� In the context of the rights of the child, children's advocates should focus efforts on developing the idea of the child's "right to a family"�; of the exact content of the "best interests of the child"�; and of the hierarchical superiority of those children's rights to the principle of subsidiarity. Essentially, inter-country adoption is better for children than orphanages. Thus, focusing effort on the Hague Convention to make it clear that subsidiarity is the secondary, not primary, concern, and that the best interest of the child is the primary goal, irrespective of borders, is the best route to ensure that the real needs of children are met.

a1. This research was funded by Harvard Law School (HLS). The author heartily thanks the faculty and trustees of HLS, particularly Professor Elizabeth Bartholet, for their generosity and support. Dr. Engle has taught law in France, Germany, Estonia and most recently at Pericles LL.M. Institute in Moscow, Russia ( His works are generally available at http://papers/ This paper was completed while the author was at Pericles. The author hopes it contributes to improved Russian-U.S. relations and thanks Pericles and the Russian government for their patience. For Natalia.

1. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

2. David M. Smolin, A Tale of Two Treaties: Furthering Social Justice Through the Redemptive Myths of Childhood, 17 Emory Int'l L. Rev. 967, 976 (2003). Universal accession is not unambiguous:
Cynically put, one could say that the CRC is broadly ratified precisely because it is almost inherently unenforceable. Since the major premises of the CRC involve a tension between protection and autonomy ... and since the CRC as an abstract human rights treaty is not subject to adjudications ... the CRC is virtually unenforceable.

3. Jonathan Todres, Emerging Limitations on the Rights of the Child: The U.N. Convention on the Rights of the Child and Its Early Case Law, 30 Colum. Hum. Rts. L. Rev. 159, 167 n.34 (1998).

4. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, G.A. Res. 54/263, U.N. Doc. A/RES/54/263 (May 25, 2000) (entered into force Feb. 12, 2002) [hereinafter Optional Protocol on the Involvement of Children in Armed Conflict]; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, G.A. Res. 54/263, U.N. Doc. A/RES/54/263 (May 25, 2000) (entered into force Jan. 18, 2002) [hereinafter Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography]; Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, G.A. Res. 41/85, U.N. Doc. A/RES/41/898 (Dec. 3, 1986) [hereinafter Declaration on Protection of Children].

5. See, e.g., Optional Protocol on the Involvement of Children in Armed Conflict, supra note 4.

6. See Cisneros v. Aragon, 485 F.3d 1226, 1231 (10th Cir. 2007) (holding that a statutory rape claim was inadequately pled to support a claim under the Alien Tort Statute since a norm in international law was not proven, and although the CRC was invoked, hortatory rights, alone, were an insufficient basis for ATS liability); Sadeghi v. INS, 40 F.3d 1139, 1147 (10th Cir. 1994) (Kane, J., dissenting); Nicholson v. Williams, 203 F. Supp. 2d 153, 234 (E.D.N.Y. 2002) (noting that CRC provisions dealing with family integrity have the force of customary international law); Batista v. Batista, No. FA 92 0059661, 1992 WL 156171, at *6-7 (Conn. Super. Ct. 1992) (using the CRC as a persuasive source of law even though the United States is not a State Party to the treaty). One could argue that the CRC codifies customary international law because of the nearly universal accession, reflecting state practice and opinio juris, the two elements of customary international law. Furthermore, as the Inter-American Commission on Human Rights has explained:
Although the U.S. has not ratified the Convention on the Rights of the Child....the U.S. State Department has already recognized that the Vienna Convention on the Law of Treaties serves as a precedent for international treaty proceedings. The U.S. State Department considers the Convention a declaration of customary law based on the Vienna Convention on the Law of Treaties ....
Domingues v. United States, Case 12.285, Inter-Am. Comm'n H.R., Report No. 62/02, OEA/Ser.L/V/II.117, doc. 1 rev. 1 P 20 (2002) (Bicudo, Comm'r, concurring).

7. Cyril Laucci, Digest of Jurisprudence of the Special Court for Sierra Leone, 2003-2005, 61 n.24 (2007).

"[R]eliable data"� on child abuse globally are "are extremely scarce.�" World Health Organization, World Report on Violence and Health, 16 (2002), report/en/summary_en.pdf. This is partly because abuse takes different forms in different cultures. See First vs. Third World: Discipline and Independence (NURTURE Magazine), Sachafortune22's Blog, (last visited ** Aug. 26, 2011). Within the United States, it is certain that poverty is associated positively at least with neglect. Robin E. Clark, Judith Freeman Clark, Christine A. Adamec, The Encyclopedia of Child Abuse xvi (3d ed. 2007). It is certainly the case that third world countries generally are much poorer and, as a consequence, more violent than first world countries. Cross cultural studies likewise note the absence of data to demonstrate conclusively the hypothesis that much greater poverty in the third world results in greater violence there--including child abuse. See I.J. D'Antonio, A.M. Darwish & M. McLean, Child Maltreatment: International Perspectives, Maternal-Child Nursing J. 1993 Apr.-Jun., at 39, 39-52.

9. See generally Multilateralism and U.S. Foreign Policy, 10 (Stewart Patrick & Shepard Forman eds., 2002).

10. E.g., Australian Bureau of Statistics, Year book, Australia, 82 (2006), available at Australia's Human Rights Policy, Australian Bureau of Statistics, (last updated Jan. 24, 2007); Rein Muellerson, Human Rights Diplomacy 6 (1997).

11. See generally, Eric Allen Engle, Lex Naturalis, Ius Naturalis 406 (Donna M. Lyons & Jacob D. Zilhardt eds., 2010).

12. See, e.g., Michael Byers, Introduction, in United States Hegemony and the Foundations of International Law, 13 (Michael Byers & Georg Nolte, eds., 2003).

13. This is probably because the United States tends (mistakenly) to view soft law as ineffectual. John Francis Murphy, The Evolving Dimensions of International Law 22 (2010)

14. Interestingly, the United States can and has used soft law mechanisms to shape international economic law. William K. Tabb, Economic Governance in the Age of Globalization 417 (2004). This makes the disconnect between U.S. declarations of universal human freedom and the lack of an effective U.S. global human rights policy all the more frustrating.

15. Eric Allen Engle, Rethinking the "˜War on Terror": Legal Perspectives on Containment and Development Strategies, 2 City University of Hong Kong Law Review 67, 73 (2010).

16. See id. at 67-79; Eric Engle, I am My Own Worst Enemy: Problems and Possibilities of European Foreign Policy Vis-  -Vis the United States (2006). 18 St. Thomas Law Review, 737, 757 (2006) [hereinafter Engle, I am My Own Worst Enemy].

17. Engle, I am My Own Worst Enemy, supra note 16, at 756.

18. James Cockayne & David Malone, Creeping Unilateralism: How Operation Provide Comfort and the No-Fly Zones in 1991 and 1992 Paved the Way for the Iraq Crisis of 2003 37 Security Dialogue 123 (2006).

19. E.g., Luisa Blanchfield, Cong. Research Serv., The U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Issues in the U.S. Ratification Debate 8 (2010), available at; S. Exec. Rep. No. 109-18, at 6 (2006) ("The United States already conducts itself in a manner consistent with the Convention through an existing body of law as well as federal and state policies"�).

20. Todres, supra note 3, at 190 ("[S]everal States Parties to the CRC have submitted more general reservations, the actual scope of which is not clear. The most common general reservation has come from Islamic countries, many of which have reserved the right not to follow provisions that are incompatible with Islamic law or the Shariah."�).

21. See, e.g., In Re Argoud, Cass. crim., 1964 Bull. Crim. No. 420 (Fr.), translated in 45 I.L.R. 90 (no individual remedy for illegal kidnapping in violation of international law; the remedy was held by the state of whom the kidnapped person was a citizen/subject).

22. See, e.g., Roberta Combs, Parents' Rights Constitutional Amendment vs. U.N.'s Convention of "Rights"� of the Child, Christian Coalition Am. (June 26, 2009, 10:27 AM), constitutional_amendment_vs_un039s_convention_quotrightsquot_child; Patrick F. Fagan et al., How U.N. Conventions on Women's and Children's Rights Undermine Family, Religion, and Sovereignty, Insight (May 2009),

23. Examples of specific conservatives who oppose the CRC include Kenneth Anderson, Secular Eschatologies and Class Interests of the Internationalized New Class, in Religion and Human Rights 107, 107 (Carrie Gustafson & Peter Juviler eds., 1999); Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 Harv. L. Rev. 2260 (1998); John R. Bolton, Is There Really "Law"� in International Affairs?, 10 Transnat'l L. & Contemp. Probs. 1 (2000); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 832 n.109 (1997); John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673 (2000); Jack L. Goldsmith & John C. Yoo, Seattle and Sovereignty, Wall St. J., Dec. 6, 1999, at A35.

24. See, e.g., Combs, supra note 22; Fagan et al., supra note 22; Martha Kleder, Protecting Parents' Rights from Activist Judges, Concerned Women for Am. (Aug. 20, 2010),; Warren Mass, Obama May Revive Anti-family UN Child Treaty, The John Birch Soc'y (May 1, 2009, 2:08 PM),; Phyllis Schlafly, Don't Let the UN Raise Our Children, Eagle F. Blog (Oct. 23, 2009, 7:36 AM),

25. See, e.g., Combs, supra note 22; Fagan et al., supra note 22.

26. Todres, supra note 3, at 190.

27. Convention on the Rights of the Child, supra note 1, at 51 (essentially making cross-border adoption a last resort).

28. H. Rudolph Schaffer, Introducing Child Psychology, 336-338 (2004).

29. President Thomas Jefferson called for "[e]qual and exact justice to all men, of whatever state or persuasion, religious or political; peace, commerce, and honest friendship with all nations, entangling alliances with none."� Thomas Jefferson, First Inaugural Address, (Mar. 4, 1801). This policy would guide the United States until at least 1898. John N. Petrie, American Neutrality in the 20th Century: The Impossible Dream, McNai Paper 33, 30 (1995). Neutrality, the wise policy of a weak, fragmented rebel state in turn, however, transformed dialectically into the disasters of the two world wars. The Oxford Companion to American Military History, 495 (John Whiteclay Chambers II ed., 1999).

30. See, e.g., Elizabeth Edwards Spalding, The First Cold Warrior: Harry Truman, Containment, and the Remaking of Liberal Internationalism 10 (2006). John Milton Cooper, Jr., The Vanity of Power: American Isolationism and the First World War, 1914-1917 (1970).

31. Perhaps as many as sixty million people died during World War II. William J. Duiker & Jackson J. Spielvogel, 2 World History 763 (6th ed. 2010).

32. The Oxford Companion to American Military History 778-79 (John Whiteclay Chambers II ed., 1999).

33. U.S. isolationism traces its roots to George Washington, who cautioned against permananent alliance or enmity, and stated:
Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government. But that jealousy to be useful must be impartial; else it becomes the instrument of the very influence to be avoided, instead of a defense against it....
The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible....
Our detached and distant situation invites and enables us to pursue a different course....
George Washington, Farewell Address (1796).

34. The United States, to present, has the largest national economy. Charles W. Kegley, Jr., World Politics: Trend and Transformation 289 (12th ed., 2009). The United States also has, by far, the world's largest military industrial complex, spending more on the military than the next twenty-five countries combined. Keith L. Shimko, The Iraq Wars and America's Military Revolution 93 (2010).

35. See, e.g., Badruddin, Global Peace and Anti-Nuclear Movements 233 (2003). For specific examples see Noam Chomsky, Interventions (2007); Justin Raimondo, The Terror Enigma (2003).

36. See, e.g., Joseph E. Stiglitz & Linda J. Bilmes, The Three Trillion Dollar War: The True Costs of the Iraq Conflict, Vanity Fair (April 2008), See also Rupert Cornwell, Iraq war set to be more expensive than Vietnam The Indep., (Apr. 28, 2006), For a running estimate of the costs of the wars see Cost of War to the United States, (last visited ** Aug. 8, 2011).

37. Valerie Epps, The Failure of Unilateralism as the Phoenix of Collective Security, 27 Suffolk Transnat'l L. Rev. 25 (2003); Paul Ruschmann The War on Terror 36 (2005).

38. Walden Bello, Dilemmas Of Domination: The Unmaking of the American Empire, 19 (2005).

39. Ramesh Thakur & Waheguru Pal Singh Sidhu, Iraq's Challenge to World Order, in The Iraq Crisis And World Order 2, 14 (Ramesh Thakur & Waheguru Pal Singh Sidhu eds., 2006).

40. David Dreier, Lee H. Hamilton, Lee Feinstein & Adrian Karatnycky, Council on Foreign Relations, Enhancing U.S. leadership at the United Nations (2002).

41. The United States gross federal debt is currently over 100% of the United States gross domestic product (GDP), almost double the level of indebtedness as a percentage of GDP prior to the "war on terror."� See, e.g., Time Series Chart of US Government Spending, 2015&units=p&state=US&chart=H0-total&local=s (last visited ** Aug. 8, 2011).

42. For a comparison, prior to the "global war on terror,"� in January, 2000, the Dollar-Euro exchange rate was $1 = euro .97. Historic Exchange Rates, X-Rates, (last visited ** Aug. 8, 2011). By January, 2011 the rate had dropped to $1 = .75. Id.

43. Stephen Lendman & J.J. Asongu, The Iraq Quagmire: The Price of Imperial Arrogance 239 (2007).

44. See Jennifer K. Harbury, Truth, Torture, And The American Way (2005); Steven H. Miles, Oath Betrayed: America's Torture Doctors (2d ed. 2009).

45. It is uncontroverted that the First Gulf War, orchestrated by the senior President Bush in the early 1990s, was largely self-funding due to the coalition of dozens of active allies. See, e.g., Errol Anthony Henderson, Democracy and War: The End of an Illusion? 150 (2002).

46. Conduct of the Persian Gulf War; The Final Report to Congress 725 (1992), available at (Gulf war cost the United States only seven billion dollars net after allied financial contributions).

47. See, e.g., Bruce Jones, Carlos Pascual, & Stephen John Stedman, Power & Responsibility: Building International Order in an Era of Transnational Threats, 8 (2009).

48. For example, in the first gulf war, U.S. allies contributed 160,000 soldiers to deployment; whereas in the second gulf war allied military contributions were less than 50,000 soldiers deployed. Alexander Thompson, Channels of Power: The UN Security Council and U.S. Statecraft in Iraq 167 (2009).

49. The Growing Budgetary Costs of the Iraq War: Hearing Before the Committee on the Budget, House of Representatives, 110th Cong. 1, 61 (2007).

50. See, e.g., Alan W. Cafruny, A Ruined Fortress? Europe and American Economic Hegemony, 19 Conn. J. Int'l L. 329 (2004).

51. Convention on the Rights of the Child, supra note 1, at 47, 50, 56, 57.

52. Todres, supra note 3, at 174.

53. See id. at 172-73.

54. Id. at 174.

55. Id.

56. Todres, supra note 3, at 175.

57. Smolin, supra note 2, at 967-68 ("Children are misfits within the contemporary world.... [T]he law for adults is generally that you can birth or adopt as many children as you wish, so long as you are willing to pay for them. Children thus become a virtual consumer item, albeit one that increasing numbers of adults would rather live without."�).

58. See, e.g., Linda J. Olsen, Live or Let Die: Could Intercountry Adoption Make the Difference?, 22 Penn St. Int'l L. Rev. 483, 520 (2004). Similar issues are found regarding the 1993 Hague Convention in Respect of Intercountry Adoption, which shifted from a focus, in the draft version, on the family's right to a child to a focus, in the final version, on the child's right to a family. Id.

59. Id. at 487.

60. See Doe v. Braden, 57 U.S. 635, 657 (1853).

61. See Restatement (Third) of Foreign Relations Law of the United States § 114 (1987) [hereinafter Restatement].

62. Laurence H. Tribe, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 Harv. L. Rev. 330, 330 (1985).
In our constitutional system, rights tend to be individual, alienable, and negative....[T]he rights protected by the United States Constitution--such as the right to be free from unreasonable searches and seizures, or the right not to be deprived of life, liberty, or property without due process of law--are ordinarily understood to belong to persons as individuals. They are also usually understood to...impose on government only a duty to refrain from certain injurious actions, rather than an affirmative obligation to direct energy or resources to meet another's needs.

63. Engle, supra note 11, at 119.

64. Eric Allen Engle, Universal Human Rights: A Generational History 12 Ann. Surv. Int'l & Comp. L. 219, 254 (2006).

65. See generally Kerri Ann Law, Note, Hope for the Future: Overcoming Jurisdictional Concerns to Achieve United States Ratification of the Convention on the Rights of the Child, 62 Fordham L. Rev. 1851, 1871, 1874-1875 (1994) (proposing reservations as the key to avoiding jurisdictional conflicts and separation of powers issues regarding the ratification of the CRC); Lawrence L. Stentzel, II, Prospects for United States Ratification of the Convention on the Rights of the Child, 48 Wash. & Lee L. Rev. 1285, 1290-1293 (1991) (discussing generation theory of human rights); Paula Donnolo & Kim K. Azzarelli, Ignoring the Human Rights of Children: A Prespective on America's Failure to Ratify the United Nations Convention on the Rights of the Child, 5 J.L. & Pol'y 203 (1996).

66. Engle, supra note 64, at 254.

67. Id. at 258.

68. For example, Article 13 of the International Covenant on Economic, Social, and Cultural Rights mandates the progressive introduction of free public higher education, not merely primary and secondary education, but also university and technical training. International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, 933 U.N.T.S. 3 (entered into force Jan. 3, 1976, available at In the United States, although education is not a "right"� at the federal level, some states have declared it to be fundamental. See, e.g., N.Y. Const. Art. XI § 1.

69. Todres, supra note 3, at 181.

70. Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116, 131 (Dec. 18).

71. See Eric Allen Engle, Taking the Right Seriously: Hohfeldian Semiotics and Rights Discourse, The Crit, Winter 2010, at 84, 88, available at

72. See Engle, supra note 64, at 254-67.

73. See id. at 258.

74. E.g., N.Y. Const. Art. XI; Brown v. Bd. of Educ. 347 U.S. 483, 493 (1954) (an opportunity for receiving an education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms."�).

75. "Treaties and federal statutes are treated equally under the Supremacy Clause, but the Constitution describes distinct procedures for creating each."� Benjamin Beiter, Note, Beyond Medell ­n: Reconsidering Federalism Limits on the Treaty Power, 85 Notre Dame L. Rev. 1163, 1191 (2010).

76. U.S. Const. art. VI cl. 2.

77. See, e.g., United States v. Belmont 301 U.S. 324, 331-32 (1937).
Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. "To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." And while this rule in respect of treaties is established by the express language of clause 2, article 6, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states. In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes the state of New York does not exist. Within the field of its powers, what ever the United States right-fully undertakes, it necessarily has warrant to consummate. And when judicial authority is invoked in aid of such consummation, State Constitutions, state laws, and state policies are irrelevant to the inquiry and decision. It is inconceivable that any of them can be interposed as an obstacle to the effective operation of a federal constitutional power."
Id. (citations omitted) (quoting 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 515 (Jonathan Elliot ed., 2d ed. 1836)).

78. The contract theory of the constitution holds that the U.S. Constitution is a contract between the states to create a federal government. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 933-35 (1985).

79. See Marbury v. Madison, 5 U.S. 137, 176 (1803).

80. But see Missouri v. Holland, 252 U.S. 416, 434 (1920) (United States federal government may arrogate power from the states via international treaty). See also Beiter, supra note 75, at 1196; Leonie Huang, Note, Which Treaties Reign Supreme? The Dormant Supremacy Clause Effect of Implemented Non-Self-Executing Treaties, 79 Fordham L. Rev. 2211, 2232 (2011).

81. Holland, 252 U.S. at 434.

82. U.S. Const. art I. § 8.; art. I § 10.

83. U.S. Const. art. II, § 2.

84. Holland 252 U.S. at 432.

85. Reid v. Covert, 354 U.S. 1 (1957).

86. Id. at 39.

87. Cicero, The Laws, in The Republic and The Laws 95, 105 (Niall Rudd trans. Oxford Univ. Press 1998).

88. Henry St. George Tucker, Limitations on the Treaty-Making Power Under the Constitution of the United States 22 (1915).

89. Marbury v. Madison. 5 U.S. (1 Cranch) 137, 173 (1803).

90. Jan Klabbers, The Concept of Treaty in International Law 55 (1996).

91. See, e.g., John H. Jackson, The Jurisprudence of GATT & the WTO: Insights on Treaty Law and Economic Relations 336-37 (2000).

92. Luisa Blanchfield, Cong. Research Serv., The United Nations Convention on the Rights of the Child: Background and Policy Issues 18 (2009).

93. See Nancy E. Walker et al., Children's Rights in the United States 38-39 (1999) (arguing the CRC is not self-executing); Robin Kimbrough, Entitlement to "Adequacy"�: Application of Article 27 to U.S. Law, in Implementing the U.N. Convention on the Rights of the Child 167, 171 (Arlene Bowers Andrews & Natalie Hevener Kaufman eds., 1999) ("The Convention is generally regarded as having two classes of rights for the purposes of self-execution, one class that is self-executing and one that is not self-executing."�); Shani King, Challenging Monohumanism: An Argument for Changing the Way We Think About Intercountry Adoption, 30 Mich. J. Int'l L. 413, 416 (2009); Cynthia L. Schirmer, Punishing Children as Adults: On Meeting International Standards and U.S. Ratification of the U.N. Convention on the Rights of the Child, 16 Mich. St. J. Int'l L. 715, 723 (2008) (asserting, without citation, that the CRC is not self-executing: "In fact, nothing in the Convention on the Rights of the Child requires self-execution. In fact, most parties, including common law countries, do not implement it in this way"�); Jeremy K. Schrag, The Tenth Circuit's Misconstruction of Statutory Rape in International Law Under the Alien Tort Claims Act of 1789 [Cisneros v. Aragon, 485 F.3d 1226 (10th Cir. 2007)], 47 Washburn L.J. 817, 834 (2008).

94. These rights include, for example, the right to food. Engle, supra note 11, at 401.

95. Id. at 400.

96. Id. at 400, 401, 403, 415.

97. Engle, supra note 64, at 260.

98. Id. at 227.

99. Engle, supra note 11, at 400, 401, 403.

100. E.g., Marsha Hackenberg, Comment, Can the Optional Protocol for the Convention on the Rights of the Child Protect the Ugandan Child Soldier?, 10 Ind. Int'l. & Comp. L. Rev. 417, 445 (2000) (the CRC is facially ineffective against child soldiers).

101. Gerald Abraham, The Cry of the Children, 41 Vill. L. Rev. 1345, 1365 n.126 (1996) ("the Convention primarily creates state obligations rather than individual rights"�).

102. Convention on the Rights of the Child, supra note 1, art. 4.

103. Id. art. 44.

104. Abraham, supra note 101, at 1365 n.126.

105. See, e.g., Edye v. Robertson, 112 U.S. 580, 598 (1884) ("A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it."�)

106. Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992) ("International treaties are not presumed to create rights that are privately enforceable."�); Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 1990) ("It is well established that individuals have no standing to challenge violations of international treaties in the absence of a protest by the sovereigns involved."�).

107. See Medell ­n v. Texas, 552 U.S. 491, 519 (2008).

108. See id. at 505.

109. Restatement, supra note 61, § 111(4).

110. Jonathan Todres, Emerging Limitations On The Rights Of The Child: The U.N. Convention On The Rights Of The Child And Its Early Case Law, 30 Colum. Hum. Rts. L. Rev. 159, 181 (1998).

111. Convention on the Rights of the Child, supra note 1, art. 4.

112. See UNHCR, UN Committee on the Rights fo the Child (CRC), Legislative History/Travaux Préparatoires, Refworld,,CRC,LEGHIST,,,0.html (last updated Aug. 10, 2011 12:35 GMT).

113. Todres, supra note 3, at 184.

114. David M. Smolin, Overcoming Religious Objections to the Convention on the Rights of the Child, 20 Emory Int'l. L. Rev. 81, 102 (2006).

115. See Convention on the Rights of the Child, supra at note 1, art. 41.

116. Restatement, supra note 61, § 114; see Lauritzen v. Larsen, 345 U.S. 571, 578 (1953); Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir. 1986).

117. See Rivera v. Minnich, 483 U.S. 574, 578 (1987).

118. See Restatement, supra note 61, § 114.

119. Brind v. Sec. of State for the Home Dept., [1991 1 A.C. 696 (H.L.) [697; Salomon v. Customs & Excise Comm'rs, [1967 2 Q.B. 116 [143; Roy E. Brownell II, Foreign Affairs and Separation of Powers in the Twenty-First Century, 2 J. Nat'l Security L. & Pol'y 367, 407-408 (2008) (Book Review); Julian G. Ku, Treaties as Laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes, 80 Ind. L.J. 319, 343 (2005).

120. Smolin, supra note 2, at 977-78. This misreading of the nature of the rights in the CRC explains much of the conservative backlash:
The negative view of the CRC comes from reading it as a legally enforceable document subject to adjudication, rather than reading it as a broad set of abstract principles. Opponents of the CRC within the United States reflect this legalistic interpretation. Rather than perceiving the CRC as an idealistic document, balancing the abstractions of protection and autonomy with a developmental view of the child, the CRC is perceived as a backdoor cultural attack on traditional lifestyles.

121. See, e.g., Optional Protocol on the Involvement of Children in Armed Conflict, supra note 4.

122. Medelli­n v. Texas, 552 U.S. 491, 505-07 (2008).

123. See Smolin, supra note 2, at 983.

124. Id.

125. See id.

126. Lynne Marie Kohm, Suffer the Little Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. Int'l L. Rev. 57, 61 (2009).

127. For an example of the unsystematic and illogical treatment of rights discourse see, e.g., Ronald Dworkin, Taking Rights Seriously (1978).

128. See Vienna Convention on the Law of Treaties, art. 21, May 23, 1969, 1155 U.N.T.S. 331.

129. Id.

130. On reservations to treaties, see generally Malcolm Nathan Shaw, International Law, 831 (5th ed., 2003).

131. Barry E. Carter & Phillip R. Trimble, International Law 110 (2nd ed. 1995).

132. Id.; see also Weinberger v. Rossi, 456 U.S. 25, 29 n.5 (1982).

133. For an extended treatment of the Vienna Convention as regarded from U.S. law, see Michael A. Cabin, Labor Rights in the Peru Agreement: Can Vague Principles Yield Concrete Change?, 109 Colum. L. Rev. 1047, 1083 n.226 (2009) ("Although the United States is not a party to the Vienna Convention, domestic courts, international tribunals, and the federal government follow the treaty as customary international law and an authoritative guide to treaty interpretation."�).

134. Vienna Convention on the Law of Treaties, supra note 128, art. 19 (providing that State Parties "may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless ... the reservation is incompatible with the object and purpose of the treaty"�).

135. Convention on the Rights of the Child, supra note 1, art. 51.

136. For treatises treating the role of reservations in U.S. and international law, see Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005) (contending that international law is a sometimes useful but delicate tool that ultimately comes down to international politics); Liesbeth Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (1995) (reviewing the reservation process and suggesting ways to improve reservations generally); Peter Malanczuk & Michael Barton Akehurst, Akehurst's Modern Introduction to International Law (1997) (exploring the relationship between international law and international politics).

137. See Pope Leo XIII, Encyclical Letter, Rerum Novarum (May 15, 1891), available at;
Pope Pius XI, Encyclical Letter, Quadragesimo Anno (May 15, 1931), available at

138. Julie G. Rosicky & Felicity S. Northcott, Finding Families for Children: Permanency and the Principle of Subsidiarity, Ct. Appointed Special Advoc. for Child., Subsidiarity.htm (last visited ** Mar. 6, 2011).

139. Convention on the Rights of the Child, supra note 1, at 47, 50, 51.

140. Elizabeth Bartholet, International Adoption: A Way Forward, 55 N.Y.L. Sch. L. Rev. 687, 691 (2010/2011).

141. Convention on the Rights of the Child, supra note 1, at 51.

142. Id. at 57.

143. See id. art. 41(a).

144. See id. art. 41(b).

145. Convention on the Rights of the Child, supra note 1, at 48.

146. Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. No. 105-51, 1870 U.N.T.S. 167.

147. See Olsen, supra note 58, at 519-20.

148. Convention on the Rights of the Child, supra note 1, at 61.

149. Id. art. 52.

150. Id. art. 41.

151. See id. art. 21(b).

152. See Carter & Trimble, supra note 131, at 146.

153. See id.

154. Id. at 143-44.

155. Geneva Declaration of the Rights of the Child, Sept. 26, 1924, League of Nations O.J. Spec. Supp. 21, reprinted in The United Nations Convention on the Rights of the Child: A Guide to the "Travaux Préparatoires"� 641 (Sharon Detrick ed., 1992) [hereinafter CRC Guide].

156. CRC Guide, supra note 155, at 641.

157. G.A. Res. 1386 (XIV), U.N. GAOR, 14th Sess., Supp. No. 16, U.N. Doc. A/4354, at 19 (Nov. 20, 1959), reprinted in CRC Guide, supra note 155, at 642.

158. G.A. Res. 41/85, U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc A/RES/41/85, at 265 (Dec. 3, 1986).

159. U.N. GAOR, 45th Sess., Annex, Agenda Item 151, U.N. Doc. A/45/625 (Oct. 18, 1990).

160. Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, supra note 146.

161. Id. at 182 ("Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding"�).

162. Id.

163. Convention Fixing the Minimum Age for Admission of Children to Industrial Employment, Nov. 28, 1919, 38 U.N.T.S. 81.

164. Convention Concerning the Night Work of Young Persons Employed in Industry, Nov. 28, 1919, 38 U.N.T.S. 93.

165. International Agreement for the Suppression of the White Slave Traffic, May 18, 1904, 35 Stat. 1979, 1 L.N.T.S. 83.

166. International Convention for the Suppression of the White Slave Traffic, May 4, 1910, 98 U.N.T.S. 101, as amended by Protocol Amending the International Agreement for the Suppression of the White Slave Traffic, Signed at Paris, on 18 May 1904, and the International Convention for the Suppression of the White Slave Traffic Signed at Paris, on 4 May 1910, May 4, 1949, 2 U.S.T. 1997, 30 U.N.T.S. 23.

167. International Convention for the Suppression of the Traffic in Women and Children, Sept. 30, 1921, 53 U.N.T.S. 39, as amended by Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children Concluded at Geneva on 30 September 1921, and the Convention for the Suppression of the Traffic in Women of Full Age, Concluded at Geneva on 11 October 1933, Nov. 12, 1947, 53 U.N.T.S. 13.

168. European Convention on the Exercise of Children's Rights, Jan. 25, 1996, E.T.S. No. 160.

169. African Charter on the Rights and Welfare of the Child, July 11, 1990, OAU Doc. CAB/LEG/24.9/49.