Sherilyn C. Baxter^† | 2 Regent J. Glob. Just. & Pub. Pol. 89 (2015)

INTRODUCTION

A law that goes unenforced may as well be a suggestion. In today’s world, suggestions never seem to carry much weight.¹ Such is the case with the United Nations’ Convention on the Rights of the Child (CRC or the “Convention”).² Entered into force in September 1990, and ratified by 193 countries, the CRC is the most widely ratified human rights treaty in the world.³ Three countries have held out; to this day the CRC has not been ratified by the United States, South Sudan, or Somalia.⁴ Almost 25 years old, it is difficult, and perhaps even dishonest, to say that the CRC has effected much change or improvement in terms of the status of children around the world.⁵

One of the principal reasons for this is the lack of enforcement of the CRC’s provisions within the States Parties (or “signatory nations”) who have ratified it.⁶ The CRC lacks the system of enforcement needed to make it more than just a twenty-five year-long suggestion; it needs to be enforced to allow for the adjudication of complaints of individual children. Currently, there is very little case law to be found which applies the Convention’s standards to cases, giving it insufficient foundation and thus making it difficult to determine the ways in which it is to be implemented and enforced.⁷ Instead, the implementation of the CRC is monitored by a committee of international experts whose “primary responsibility is to monitor reports submitted by States Parties on national implementation of [the] CRC.”⁸ Essentially, the committee gives criticism and makes recommendations, which the majority of member countries do not qualify as mandatory or necessary.⁹ The advisory, non-adversarial nature of the CRC relies on diplomacy rather than legal sanction,¹⁰ and for the time being, that is getting the children of this world nowhere.¹¹

Countries that are party to the CRC agree to take “all appropriate legislative, administrative, and other measures” to ensure that all children in their jurisdiction have their rights set forth in the Convention.¹² “Such rights include life and development; name, nationality, and prenatal care; health and access to healthcare services; and education.”¹³ “They also include protection from abuse and neglect, as well as freedom of expression, religion, association, and peaceful assembly.”¹⁴ The “CRC calls for the protection of children from economic, sexual, and other forms of exploitation; torture; and capital punishment for offenses committed before the age of [eighteen].”¹⁵ “It also provides special protections for orphans, refugees, and the disabled.”¹⁶ However, the prevalent lack of enforcement in certain countries is largely due to the flaws in the document itself,¹⁷ as well as cultural mores and norms that cause these member States to interpret the CRC differently.¹⁸ Often, member countries are dishonest with the CRC Committee about their degree of enforcement, and even more often, the countries lack the infrastructure required to implement and enforce the rules of the CRC.¹⁹ Additionally, the UN’s jurisdiction has very little enforcement of law behind it, often making its regulations rather idealistic and ineffective.²⁰

This Note will discuss in detail (1) the CRC’s background, key articles, and general problems, (2) the reasons behind the CRC’s lack of
enforcement, (3) the types of atrocities that are happening to children around the world due to its lack of enforcement, (4) the reasons why the United States has, year after year and president after president, chosen not to ratify it, and (5) some ways in which the policies and implementation could be changed in order to make enforcement more effective.

1 See Oona A. Hathaway, Making Human Rights Treaties Work: Global Legal Information and Human Rights in the 21st Century, 31 INT’L J. LEGAL INFO. 312, 312-13 (2003).
2 Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].
3 LUISA BLANCHFIELD, CONG. RESEARCH SERV., R40484, THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1 (2013) [hereinafter CONG. RESEARCH SERV.].
4 Participating Countries, CHILD RIGHTS CAMPAIGN, http://www.childrightscampaign.org/what-is-the-crc/participating-countries (last visited Nov. 30, 2014).
5 Natasha Parassram Concepcion, The Convention on the Rights of the Child After Ten Years: Success or Failure? 7 HUM. RTS. BRIEF 2, 19 (2000) (“Although the CRC has highlighted children’s rights and works with states to enforce these rights, reality suggests that states have not followed through on their commitments to the CRC.”); see also Lynne Marie Kohm, A Brief Assessment of the 25-Year Effect of the Convention on the Rights of the Child, 23 CARDOZO J. INT’L & COMP. L. 323, 345 (2015) [hereinafter A Brief Assessment].
6 Concepcion, supra note 5, at 2. (“Despite the nearly universal ratification of the CRC, the situation of the world’s youth casts doubt over actual domestic implementation and enforcement of the convention. In 1999, more than a decade after the CRC was adopted, the United Nations Children’s Fund (UNICEF) indicated that the plight of children worldwide has not significantly improved. As of 1999, an estimated twelve million children under the age of five die every year, mostly of easily preventable causes; 130 million children in developing countries, a majority of whom are girls, are not in primary school; 160 million children are severely or moderately malnourished; approximately 1.4 billion children lack access to safe water; and 2.7 billion children lack access to adequate sanitation.”); see also A Brief Assessment, supra note 5, at 344 (“Other inconsistencies are apparent in the lack of enforcement within the Convention itself, within the United Nations, and within the international community.”).
7 Stefanie Grant, Functional Distinction or Bilingualism? Human Rights and Trade: The UN Human Rights System, 5 THE WORLD TRADE FORUM, INT’L TRADE & HUMAN RIGHTS: FOUND. AND CONCEPTUAL ISSUES 137, 138 (Frederick M. Abbott et al. eds., 2006).
8 CONG. RESEARCH SERV., supra note 3, at 3.
9 Id. at 9.
10 Id.
11 See id. at 15–16 (describing the areas of ineffectiveness of the CRC as a whole).
12 CRC, supra note 2, at 46.
13 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2 at 47, 52–53.
14 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2, at 48–50.
15 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2, at 50, 54–55.
16 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2, at 50–51.
17 See discussion infra Section II.A.
18 See A Brief Assessment, supra note 5, at 343 (“Furthermore, others question the Western, idealistic view of universal children’s rights that fails to take into account regional differences.”); see also Philip Alston, The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights, in THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS 1, 23 (Philip Alston ed, 1994) (discussing the cultural differences in the context of parental responsibility, parental rights, and child custody). See generally Sonia Harris-Short, International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the U.N. Convention on the Rights of the Child, 25 HUM. RTS. Q. 130 (2003) (discussing the use of the cultural relativism argument at the UN Committee on the Rights of the Child and how the “cultural difference” argument reflects the inherent limitations and fundamental weaknesses of an international legal system founded on a “society of States” where individual voices as well as voices of local governments are effectively silenced).
19 A Brief Assessment, supra note 5, at 345 (“[B]ecause enforcement mechanisms are almost entirely internal, other problems such as honesty in enforcement and lack of infrastructure for enforcement in States Parties can be troubling, as evidenced by the fact that many of the trafficking issues come from groups that are not actually entities that could ratify the CRC, but exist nonetheless within States Parties.”); see also Heather L. Carmody, The Child Soldiers Prevention Act: How the Act’s Inadequacy Leaves the World’s Children Vulnerable, 43 CAL. W. INT’L L. J. 233, 245–46 (2012) (“State Parties recently emerging from internal conflict may not have the infrastructure and organizations necessary to address the long-term needs of its former child soldiers.”).
20 See A Brief Assessment, supra note 5, at 345–46.

† B.A. 2013, California Baptist University; J.D. 2016, Regent University School of Law.