Beyond the American Legal System for the Protection of Children's Rights

Family Law Quarterly

Volumn 31, Issue 2, 1997, Pages 237-267

  Fox, Sanford J ^a,b  

^a BOSTON COLLEGE   (United States)

^b AMERICAN BAR ASSOCIATION   (United States)

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EID: 0031508881     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (159)

1. See UNITED NATIONS CHILDREN'S FUND, THE STATE OF THE WORLD'S CHILDREN at 46-47 (1994) [hereinafter WORLD'S CHILDREN]; AMERICA'S CHILDREN AT RISK: A NATIONAL AGENDA FOR LEGAL ACTION, A REPORT OF THE AMERICAN BAR ASSOCIATION PRESIDENTIAL WORKING GROUP ON THE UNMET LEGAL NEEDS OF CHILDREN AND THEIR FAMILIES (July 1993) at ix [hereinafter UNMET LEGAL NEEDS]; Luxembourg Income Study, N.Y. TIMES, Aug. 14, 1995, at A9 (ranking the United States as 16th out of 18 Western industrialized countries on how poor are poor children).
2. See Unmet Legal Needs, supra note 1, at x.
3. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193 (1996).
4. See Violent Youth Predator Act of 1996, 104 H.R. 3565 (1996);
5. Marcy Rasmussen Podkopacz & Barry C. Feld, The End of the Line: An Empirical Study of Judicial Waiver, 86 J. CRIM. L. & CRIMINOLOGY 449 (1996).
6. See, e.g., The Inter-American Commission on Human Rights: A Promise Unfulfilled, A Report by the Committee on International Human Rights of the Association of the Bar of the City of New York, 2 (1993) [hereinafter Promise Unfulfilled] ("The Inter-American Commission, in particular, is little known to the public or the Bar in the United States and scholars and non-governmental organizations have questioned its effectiveness").
7. See Philip Alston, Appraising the United Nations Human Rights Regime, in THE UNITED NATIONS AND HUMAN RIGHTS 1-2 (Alston ed. 1992) [hereinafter Alston]: The years since 1946, and particularly since 1966, have seen a dramatic increase in the number of UN "organs" devoted primarily to dealing with human rights matters, as well as a major increase in the time devoted by some of the existing organs to the human rights part of their mandates. Any depiction of this growth as being systematic, gradual, or even rational is largely unwarranted. In general then, the evolution of the regime has reflected specific political developments. Its expansion has depended upon the effective exploitation of the opportunities which have arisen in any given situation from the prevailing mix of public pressures, the cohesiveness or disarray of the key geopolitical blocks, the power and number of the offending state(s) and the international standing of their current governments, and a variety of other, often rather specific and ephemeral factors.
8. See, e.g., In re Gault, 387 U.S. 1 (1967); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 303 (1969) (right to free speech).
9. In the United States this process is governed by one sentence in the Constitution which provides: "He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. CONST, art. II, § 2. The only use of the term "ratification" is in regard to amending the Constitution. See, Id. Art. V.
10. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. d (1987) [hereinafter RESTATEMENT]. Some rights may appear in both forms when a customary rule is codified in a treaty largely in order to subject the customary norm to the implementation mechanisms provided in the treaty. The Restatement identifies only a limited range of rights as protected by customary international law. A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, (g) a consistent pattern of gross violations of internationally recognized human rights. Id. § 702.
11. Compare Filartaga v. Pena Irala, 630 F.2d 876 (2d Cir. 1980) (finding torture to be prohibited by customary law), with Forti v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988) (finding that a customary rule had not developed prohibiting "cruel, inhuman or degrading" treatment).
12. See, e.g., Julian Nicholls, Too Young to Die: International Law and the Imposition of the Juvenile Death Penalty in the United States, 5 EMORY INT'L L. REV. 617, 620 (1991).
13. See RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS (2d ed. 1990) (a looseleaf service listing all the major human rights instruments, including reference to federal and state cases citing them).
14. United Nations Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25, 44 U.N. GAOR, Supp. No. 49, at 166, U.N. Doc. A/44/49, (1989) [hereinafter Children's Convention]. Some articles, however, reaffirm parents' rights. See, e.g. art. 5: States parties shall respect the responsibilities, rights and duties of parents or . . . other persons legally responsible for the child, 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.
15. Id. art. 16.
16. Id. art. 12.
17. International Covenant on Civil and Political Rights, Dec. 19, 1966, G.A. Res. 2200, U.N. GAOR, Supp. No. 16 at 52, U.N. Doc. A/6316 (1967), 999 U.N.T.S. 171, art. 24 [hereinafter ICCPR].
18. Id. art. 9(1).
19. Id. art. 26.
20. American Declaration of the Rights and Duties of Man, May 2, 1948, Res. XXX, at 38, Final Act, Ninth Int'l Conf. of American States, Bogata, Columbian, Mar. 30-May 2, 1948 (Pan-Am 1948), O.A.S. Off. Rec. OEA/Ser. L./V./II.23/Doc. 21 Rev. 6 (1979), Art. XX [hereinafter American Declaration] in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V./II.82 doc. 6 rev.1 at 17 (1992) [hereinafter Basic Documents].
21. E.g., American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, O.A.S. Off. Riec. OEA/Ser. L./V./II.23/Doc. 21 Rev. 6 [hereinafter American Convention] in Basic Documents, supra note 20, at 25; ICCPR, supra note 16.
22. International Covenant on Economic, Social and Cultural Rights, Dec. 15, 1966, 1976, 999 U.N.T.S. 3 [hereinafter Economic Covenant]; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), Nov. 17, 1988, O.A.S.T.S. NO. 69, in Basic Documents, supra note 20, at 67.
23. Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46 at 193, U.N. Doc. A/34/46 (1979) [hereinafter CEDAW].
24. International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, G.A. Res. 2106A, U.N. GAOR, 20th Sess., Supp. No. 14 at 47, U.N. Doc. A/6014 (1965) [hereinafter CERD]. International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, G.A. Res. 3068, U.N. GAOR 28th Sess., Supp. No. 30 at 75, U.N. Doc. A/9030 (1973).
25. Children's Convention, supra note 13.
26. American Declaration, supra note 20; American Convention, supra note 21.
27. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention].
28. African (Banjul) Charter on Human and People's Rights, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3/Rev. 5 (1981), reprinted in 21 INT'L LEGAL MATERIALS 58 (1982) (entered into force Oct. 21, 1986).
29. RESTATEMENT, supra note 9, § 102 cmt. d (1987).
30. ICCPR, supra note 16, art. 6(5); American Convention, supra note 21, art. 4(5); Children's Convention, supra note 13, art. 37(a).
31. Children's Convention, supra note 13, art. 40(2a); ICCPR, supra note 16, art. 15(1).
32. Children's Convention, supra note 13, art 37(a); American Convention, supra note 21, art. 5(2).
33. ICCPR, supra note 16, art. 10(3).
34. Children's Convention, supra note 13, art. 4; American Declaration, supra note 21, art. XI; See Sanford J. Fox & Diony Young, International Proctection of Children's Rigth to Health: The Medical Screening of Newborns, XI B.C. THIRD WORLD L. J. 1 (1991).
35. See RIGHT TO ADEQUATE FOOD AS A HUMAN RIGHT, U.N. Sales No. E.89.XIV.2 (1992).
36. Children's Convention, supra note 13, art. 28; American Declaration, supra note 20, art. XII.
37. Children's Convention, supra note 13. art. 27; American Declaration, supra note 20, art. XI.
38. See Personal Responsibility Act, supra note 3 at § 103 part A (Block Grants to States for Temporary Assistance for Needy Families. "This part shall not be interpreted to entitle any individual or family to assistance under any State program funded under this part").
39. Children's Convention, supra note 13, art. 16; American Declaration, supra note 20, art. V.
40. Children's Convention, supra note 13, art. 12.
41. People of Saipan ex rel. Guerrerro v. U.S. Dep't of Interior, 502 F.2d 90, 97 (9th Cir. 1974), 420 U.S. 1003 (1975). See also Fox & Young, supra note 34, (discussing application of the right to health under the Convention on the Rights of the Child).
42. ICCPR, supra note 16, art. 24.
43. The Paquete Habana, 175 U.S. 677, 700 (1900).
44. RESTATEMENT, supra note 9, § 115 cmt. e. See Richard B. Lillich, International Human Rights Law in U.S. Courts, 2 TRANSNT'L. 1, 13-19 (1992) [hereinafter Lillich]. 45. But see infra section IV.C.
45. Id.
46. Signing a treaty does not impose a duty to meet the treaty's requirements; it does however, oblige the signing state "to refrain from acts which would defeat the object and purpose of the treaty." Vienna Convention on the Law of Treaties, Jan. 20, 1987, art. 18, 1155 U.N.T.S. 331, [hereinafter Vienna Convention].
47. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948. _ U.S.T. _, T.I.A.S No. _, 78 U.N.T.S, 277.
48. In the U.S. system, a treaty may be "self-executing," in which case it may properly be invoked by private parties in litigation without any implementing legislation, or "non-self-executing," in which case its provisions cannot be directly enforced by the judiciary in the absence of implementing legislation. This distinction derives from the Supreme Court's interpretation of Article VI, cl. 2 of the Constitution. The distinction is one of domestic law only; in either case, the treaty remains binding on the United States as a matter of international law. Thus, in the case of human rights treaties, a "non-self-executing" treaty does not, in and of itself accord individuals a right to seek enforcement of the protections in a domestic court, even though the United States continues to be bound to recognize these protections. Initial Report of the United States of America to the U.N. Human Rights Committee under the International Covenant on Civil and Political Rights, at 27 (July 1994). For a penetrating analysis of the historical and theoretical basis of the self-execution doctrine, see Carlos Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082 (1992) (relatively few countries recognize a doctrine of self-execution of treaties). See Lillich, supra note 44, at 4, n. 14.
49. The doctrine dates from Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).
50. A reservation is a "unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state." Vienna Convention, supra note 47, art. 2(1)(d).
51. That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age. 138 Cong. Rec. S4783 (daily ed. Apr. 2, 1992).
52. P. Hoffman & N. Strossen, Enforcing International Human Rights Law in the United States, INT'L CIV. LIBERTIES REP. 1, 4 (July 1994).
53. Lillich, supra note 44, at 13.
54. See, e.g., note 6.
55. See Ann Bayefsky & Joan Fitzpatrick, International Human Rights Law in United States Courts. A Comparative Perspective, 14 MICH. J. INT'L L. 1, 27-28 (1993). One writer would add to this list that "conservative Reagan administration appointees with an unparalleled hostility to human rights now dominate the federal bench." Howard Tolley, Jr., Interest Groups Litigation to Enforce Human Rights: Confronting Judicial Restraint, in World Justice? U.S. CTS. & INT'L HUM. RTS. 123, 142 (Mark Gibney ed. 1991).
56. See Ann Bayefsky & Joan Fitzpatrick, International Human Rights Law in United States Courts. A Comparative Perspective, 14 MICH. J. INT'L L. 1, 27-28 (1993). One writer would add to this list that "conservative Reagan administration appointees with an unparalleled hostility to human rights now dominate the federal bench." Howard Tolley, Jr., Interest Groups Litigation to Enforce Human Rights: Confronting Judicial Restraint, in World Justice? U.S. CTS. & INT'L HUM. RTS. 123, 142 (Mark Gibney ed. 1991).
57. See Filaratga v. Penn Irala, 630 F.2d 876 (2d cir. 1980); Forti v. Suarez Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) (finding prolonged arbitrary detention violates customary law).
58. 492 U.S. 361 (1989).
59. Id. at 369.
60. Id.
61. Id. at 369 n.1 (English and Scottish courts have recently ruled the other way). The cases are cited and discussed in Alastair Brown, The European Convention on Human Rights in Scottish Courts, 1996 SCOTS L. T. at 267.
62. This description may have to be revised if the War Crimes Tribunals for the former Yugoslavia and for Rwanda effectively establish guidelines for an international system of apprehension, trial and punishment for individual human rights violators. As of 1996 the jury is still out on whether these bodies are significant participants in international lawmaking and enforcement.
63. One finds, consequently, that it is usually the least democratic countries that have the worst human rights records and that the development of an international law entitlement to democratic rule bodes well for moving respect for human rights in a positive direction. See Gregory H. Fox, The Right to Political Participation in International Law, 17 YALE J. INT'L L. 539 (1992); Thomas M. Frank, The Emerging Right to Democratic Government, 86 AM. J. INT'L L. 46 (1992).
64. One finds, consequently, that it is usually the least democratic countries that have the worst human rights records and that the development of an international law entitlement to democratic rule bodes well for moving respect for human rights in a positive direction. See Gregory H. Fox, The Right to Political Participation in International Law, 17 YALE J. INT'L L. 539 (1992); Thomas M. Frank, The Emerging Right to Democratic Government, 86 AM. J. INT'L L. 46 (1992).
65. This disrepute, of course, can lead to diplomatic, economic, and even military consequences.
66. An optional right to individual petition is also provided for in the CERD, supra note 24, art. 14; The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10 1984, G. A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. 39/51 (1984). In addition, the First Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 302, provides for a similar petition system relating to states that are parties to the ICCPR, supra note 16.
67. Regulations of the Inter-American Commission on Human Rights art. 26(1) in Basic Documents, supra note 20, at 112 [hereinafter Regulations]: Any person or group of persons or nongovernmental entity legally recognized in one or more of the member states of the Organization may submit petitions to the Commission, in accordance with these Regulations, on one's own behalf or on behalf of third persons, with regard to alleged violations of a human right recognized, as the case may be, in the American Convention on Human Rights or in the American Declaration of the Rights and Duties of Man.
68. Regulations, supra note 66, art. 34 provides: The Commission, acting initially through its Secretariat, shall receive and process petitions lodged with it in accordance with the standards set forth below . . . 1(c) if it accepts, in principle, the admissibility of the petition, it shall request information from the government of the State in question and include the pertinent parts of the petitions . . . 7. The pertinent parts of the reply [by the government] and the documents provided by the government shall be made known to the petitioner or to his representative, who shall be asked to submit his observations and any available evidence to the contrary within 30 days. 8. On receipt of the information or documents requested, the pertinent parts shall be transmitted to the government, which shall be allowed to submit its final observations within 30 days.
69. "At the hearing, the Commission may request any pertinent information from the representative of the State in question and shall receive, if so requested, oral or written statements presented by the parties concerned." Regulations. supra note 66, art. 43(2).
70. "If necessary and advisable, the Commission shall carry out an on-site investigation, for the effective conduct of which it shall request, and the States concerned shall furnish to it, all necessary facilities." M. art. 44(1).
71. "Once the investigatory stage has been completed, the case shall be brought for consideration before the Commission, which shall prepare its decision in a period of 180 days." M. art. 44(3).
72. See M. E. Tardu supra note 6, vol. 1, Part II, at 3-26.
73. In 1965, CERD, supra note 24, was the first of the human rights treaties to incorporate the opportunity for individual petition and was quickly followed in 1966 by adoption of the Optional Protocol to the Covenant on Civil Rights, supra note 65. Alston sees these events as a "very important breakthrough in terms of the principles involved, particularly that of accountability." Alston, supra note 6, at 143.
74. The Council of Europe was created in 1949 and produced in 1950 the European Convention for the Protection of Human Rights and Fundamental Freedoms. European Convention, supra note 27.
75. The Organization of American States (OAS) came into being in 1951 with the coming into force of the OAS Charter, Apr. 30, 1948, 119 U.N.T.S. 3. Originally the OAS Charter contained few references to human rights. In 1970, however, the Charter was amended by the Protocol of Buenos Aires, which added significant human rights provisions, Feb. 27, 1967, 21 U.S.T. 607.
76. The American Declaration, supra note 20, created at the same time that the OAS was established, and the United Nations Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A(iii), UN Doc. A/810, Supp. No. at 71 (1948) [hereinafter Universal Declaration], were adopted nearly simultaneously. For the sense in which the latter was a reaction to the tenets and practices of Nazism, see Johannes Morsink, World War Two and the Universal Declaration, 15 HUM. RTS. Q. 357 (1993).
77. The European Commission on Human Rights was established under the European Convention. See MARK JANIS & RICHARD KAY, EUROPEAN HUMAN RIGHTS LAW 39-85 (1990). This commission appears likely to merge with a newly constituted and full-time European Court of Human Rights. See A. Z. Drezemezcwski, A Full Time European Court of Human Right in Strasbourg, 1993 NEW L. J. 1488.
78. See Gray, Remedies for Individuals Under the European Canvention on Human Rights, 6 HUM. RTS. REV. 153 (1981).
79. Persons in OAS states that are also parties to the American Convention on Human Rights, supra note 20, may also resort to the Commission for vindication of their rights under the Convention. For a comparison of the two regional systems, see Weston, Lukes, & Hnatt, Regional Human Right Regimes: A Comparison and Appraisal, 20 VAND. J. TRANSNAT'L L. 585 (1987).
80. Supra note 61.
81. Fewer than half of the nations in the world are subject to the Protocol's procedures. See HUMAN RIGHTS INTERNATIONAL INSTRUMENTS, CHART OF RATIFICATIONS, July 31, 1993, U.N. Doc. ST/HR/4/Rev. 8.
82. See Basic Documents, supra note 20, at 7-13.
83. Statute of the Inter-American Human Commission on Human Rights, id. at 93-132.
84. Id. at 121.
85. See supra note 20.
86. Id. at art. vii.
87. Id. at art. xii.
88. The "Baby Boy" Opinion, Case 2141, Inter-Am. C.H.R. 25, OEA/ser.L./ V./II.54, doc. 9 rev. 1 (1981).
89. Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973).
90. The petition presented to the Commission on behalf of an aborted fetus claimed a violation of the Declaration's Art. I (right to life); Art. II (discrimination on the basis of age); Art. VII (child's right to special protection, care, and aid); and Art. XI (right to health).
91. The Roach case, Case 9647, Inter-Am. C.H.R. 147, OEA/ser.L./V./II.71, doc. 9 rev. 1 (1987).
92. See, e.g., David Weissbrodt, Execution of Juvenile Offenders by the United States Violates International Human Rights Law, 3 AM. U. J. INT'L. L. & POL'Y 339 (1987); William Walker, A Litigator's Look at the Usefulness of the Inter-American Commission on Human Rights as an Additional Forum for Civil Rights Cases, 2 ACLU INT'L CIV. LIBERTIES REP. 38, 41 (Dec. 1993).
93. See, e.g., David Weissbrodt, Execution of Juvenile Offenders by the United States Violates International Human Rights Law, 3 AM. U. J. INT'L. L. & POL'Y 339 (1987); William Walker, A Litigator's Look at the Usefulness of the Inter-American Commission on Human Rights as an Additional Forum for Civil Rights Cases, 2 ACLU INT'L CIV. LIBERTIES REP. 38, 41 (Dec. 1993).
94. FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS (1990), at 272.
95. Claimants must first exhaust their domestic remedies. Statute of the Inter American Commission on Human Rights, supra note 82, art. 20(c).
96. Vernonia School District 471 v. Acton, 132 L. Ed. 2d 564 (1995). Neither Justice Scalia's opinion for the Court, Justice Ginsburg's concurring opinion, nor Justice O'Connor's dissent draws on the international law jurisprudence on the right to privacy. See, e.g., EUROPEAN HUMAN RIGHTS LAW, supra note 76, at 189-232 (comparing the views of the European human rights organs with those of the U.S. Supreme Court).
97. Ingraham v. Wright, 430 U.S. 651 (1977).
98. It seems clear that the United States health care system is failing to respect children's right to health. Unmet Legal Needs, supra note 1, at 35 reports: A higher proportion of babies are born at low birth weight in the United States than in 31 other countries, including Romania, Greece, Turkey and Portugal. The United States ranks 19th among developed countries for infant mortality rates. The United States ranks 17th among all nations in the percentage of one-year olds who are fully immunized against polio, behind Romania, Albania, Greece, North Korea and Pakistan. In some American cities, only 10% to 42% of children starting school had received critical immunizations on time. Our polio immunization rate for children of color ranks us 70th in the world.
99. The right to such economic and social rights under international law is contingent on the availability of resources. See, e.g., American Declaration, supra note 20, art. XI; Children's Convention, supra note 13, art. 4; Economic Covenant, supra note 22, art. 2(1). But it would lack credibility for the United States to plead poverty as the reason for these failures. The gross national product per capita in the United States ranks behind only four Scandinavian countries, Switzerland, and Japan. World's Children, supra note 1, at 48-49. Children in the United States are not, however, the only needy population to feel the impact of community parsimony. The United States ranks 19th out of 20 industrialized countries in the percentage of its gross national product which it allocates to foreign economic assistance. Id. at 45.
100. Concerning housing, Unmet Legal Needs, supra note 1, at 18, reports: Federal funding for low-income housing programs was slashed by 80% during the 1980's. In 1989, only one in every three poor households was able to participate in federal or state housing assistance programs. Yet almost all poor families live in housing that consumes too much of their incomes, is of poor quality, is over-crowded, or has all of these problems.
101. Walker, supra note 91, at 41.
102. For discussion of cases from the United States recently filed with the Commission, see Rick Wilson, Litigation at the Inter-American Human Rights Commission and the Court, ACLU INT'L CIV. LIBERTIES REP., July 1994 at 24.
103. Promise Unfulfilled, supra note 5, at 33-35.
104. Id. at 35.
105. Id. at 33-34.
106. Id. at 33. The Court has authority to issue legally binding judgments that can include the award of fair compensation to the victim. See American Convention, supra note 21, art. 63(1). A President of the American Bar Association has recently urged the President of the United States to seek the advice and consent of the Senate for ratification of the American Convention. Letter from George Bushnell, President, American Bar Association, to President Clinton, 1995.
107. Id. at 8.
108. For the evolution of this jurisdiction, see Alston, supra note 6, at 143-44.
109. See id. at 126, 128.
110. See Asbjorn Eide, Sub-Commission on Prevention of Discrimination and Protection of Minorities, at 211.
111. Writing in 1992, Eide observed: The often confrontational nature of the interaction between NGO's and government observers, over human rights violations, has contributed to an increasing politicization of the Sub-Commission. While the role of the NGOs has been essential to the evolution of the United Nations' protection role, a stage appears to have been reached during the last years of the 1980's where the confrontation . . . was becoming dysfunctional unless more sophisticated methods to deal with violations were found. Taking into account, however, the resistance both by Socialist and many Third World countries to any improvement in the mechanisms of handling violations, it appeared to be almost impossible to resolve this dilemma. At the beginning of the 1990's the situation has changed as a consequence of the political evolution in Central and Eastern Europe. From these countries, much more support is now forthcoming for international rights mechanisms. . . . At the time of writing, it remains to be seen how the various Third World countries will react to the new situation. Most probably they will not react as a monolithic bloc. While some will remain negative to international human rights monitoring, a wide scope of new possibilities seems to have opened up. Id. at 212-13.
112. See E.S.C. Res. 75 (V) (1947).
113. E.S.C. Res. 1235 (XLII), 42 U.N. ESCOR Supp. No. 1 at 17, U.N. Doc. E/4393 (1967) (emphasis added). The evolution from the "no power" position to this broad mandate is traced in Alston, supra note 6, at 155-61. At the same time the Sub-Commission was requested to bring to the attention of the Commission human rights violations that the Commission was authorized to consider. See Eide, supra note 107, at 222-23. There is a somewhat overlapping procedure for dealing with violations authorized by E.S.C. Res. 1503 (XEVIII), U.N. ESCOR Supp. No. 1A at 17, U.N. Doc. E/4832/ Add. 1 (1970) that is confidential and private. An examination of the Commission's work under these Resolution 1503 procedures has led one analyst of the Commission to conclude: In general, it would seem to the present author that the shortcomings of the procedure are so considerable, its tangible achievements so scarce, the justifications offered in its favor so modest, and the need for an effective and universally applicable petition procedure so great, that it is time to evaluate its future. Alston, supra note 6. at 154. For purposes of the present article the value of the Res. 1503 procedure is too marginal to warrant detailed discussion.
114. These were primarily Third World countries newly admitted to the United Nations, joined by "the Eastern Europeans who were happy to encourage attention to what were assumed to be quintessentially Western sins." The United States, then in the midst of its civil rights revolution, also supported the move. Alston, supra note 6, at 143.
115. G.A. Res. 2144 A(XXI) (1966).
116. Supra note 110.
117. The breakthrough came in 1967 with a Sub-Commission report on nonracist abuses in Greece and Haiti. & Eide, supra note 107, at 234-35.
118. See Alston, supra note 6, at 190-92.
119. "The ways in which the violations are dealt with in the 1990's, always under the rubric of 'the 1235 procedure', bears only passing resemblance to the actual procedure formally authorized by that resolution." Id. at 155. See also Eide, supra note 107, at 226-30.
120. There are 52 states elected to the Commission by ECOSOC. The Sub-Commission has 26 members elected by the Commission who are nominally independent and not representative of any government.
121. Alston, supra note 6, at 173; Nigel Rodley, United Nations Non-Treaty Procedures for Dealing with Human Rights Violations in Hannum supra note 6, at 60, 61. Governments elected to the Commission are usually represented by senior diplomats with large staffs. Alston, supra note 6, at 194. At the 1993 session of the Commission "China had sent 16 delegates to lobby full-time for six weeks to avoid condemnation by the world community." China was successful, but by a smaller margin than previously. FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL, HUMAN RIGHTS 47 (Supp. 1994). A case study of one country's efforts to escape international scrutiny is in IAIN GUEST, BEHIND THE DISAPPEARANCES: ARGENTINA'S DIRIY WAR AGAINST HUMAN RIGHTS AND THE UNITED NATIONS (1990).
122. Alston, supra note 6, at 173; Nigel Rodley, United Nations Non-Treaty Procedures for Dealing with Human Rights Violations in Hannum supra note 6, at 60, 61. Governments elected to the Commission are usually represented by senior diplomats with large staffs. Alston, supra note 6, at 194. At the 1993 session of the Commission "China had sent 16 delegates to lobby full-time for six weeks to avoid condemnation by the world community." China was successful, but by a smaller margin than previously. FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL, HUMAN RIGHTS 47 (Supp. 1994). A case study of one country's efforts to escape international scrutiny is in IAIN GUEST, BEHIND THE DISAPPEARANCES: ARGENTINA'S DIRIY WAR AGAINST HUMAN RIGHTS AND THE UNITED NATIONS (1990).
123. "Pressure may have to be brought to bear, which for the Sub-Commission and the Commission is limited to public criticism. This can, however, significantly strengthen those inside the country who struggle for democracy and openness" or for children's rights. Eide, supra note 107, at 262.
124. See NEWMAN & WEISSBRODT, supra note 92, at 112-13.
125. That role is analyzed in Alston, supra note 6, at 202-04.
126. Eide, supra note 107, at 232.
127. See Alston, supra note 6, at 159-64.
128. Fortunately, there are models to emulate in pursuing reform in this area. In noting the shortcomings of human rights fact-finding in the United Nations, Alston observes: "Perhaps the clearest demonstration of their inferiority is to compare the reports produced by UN fact-finders with those produced by their Inter-American counterparts. In the case of Guatemala and, albeit to a slightly lesser extent, Chile, the difference in quality and thoroughness is enormous." Id. at 170.
129. See Eide, supra note 107, at 234.
130. C.H.R Res. 1990/68, U.N. Doc. E/CN 4/1990/94 (1990). See NEWMAN & WEISSBRODT, supra note 92, at 112-51.
131. Economic Covenant, supra note 22; ICCPR, supra note 16. The First Optional Protocol to the Covenant on Civil and Political Rights, supra note 65; the Second Optional Protocol to the Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, Dec. 15, 1989, G.A. Res. 44/128, U.N. GAOR, 4th Sess., Supp. No. 49, at 206, U.N. Doc. A/44/824 (1989); CERD, supra note 22; CEDAW, supra note 23; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. No. 39/51 (1984); Childrens' Convention, supra note 13. This section illustrates the reporting system by reference primarily to the civil and political covenant for reasons that (1) the Human Rights Committee, the Covenant's monitoring body, has the most extensive published experience; (2) the Covenant contains significant children's rights; and (3) the treaty with a reporting requirement that has the most comprehensive protection of children's rights - the Convention on the Rights of the Child - has been signed but not yet ratified by the United States.
132. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. G.A.O.R. Supp. No. 51 at 197, substantive changes noted in 24 INT'L. LEGAL MAR. 535 (1985).
133. See supra note 16.
134. See supra note 24.
135. Alston, supra note 6, at 13.
136. See United Nations Action in the Field of Human Rights, U.N. Doc. ST/HR/ 2/Rev. 3, 1988 at 310-311. This was discontinued in 1980. Id. at 311.
137. This committee is usually composed of independent experts who do not represent a particular government and who are elected periodically by the states parties to the treaty.
138. Alston, supra note 6, at 13.
139. See, e.g., Fausto Pocar, The International Covenant on Civil and Political Rights in Reporting Manual, in U.N. MANUAL ON HUMAN RIGHTS REPORTING, U.N. Doc. HP/PUB/91/1, at 79-80.
140. Fausto Pocar & Cecil Bernard, National Reports: Their Submission to Expert Bodies and Follow-Up, id. at 25.
141. Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, at 74-75 (1994).
142. The effects of glasnost have reached the HRC and many members specifically cite sources, have good relations with nongovernmental organizations, and receive a wide range of material. For example, during consideration of the second periodic report of Japan members of the HRC received materials from medical groups, political parties, lawyers, and individuals. The question of the use of such sources by HRC members is no longer an issue in the HRC. Id. at 79.
143. ICCPR, supra note 16, art. 7.
144. Id. art. 17(1).
145. Consideration of Reports Submitted by States Parties Under Art. 40 of the Covenant, U.N. Doc. ICCPR/C/9/ADD. 50 at 5, [hereinafter Consideration on Reports].
146. See supra note 49.
147. See supra note 135, at 4. The Committee regrets the extent of the State party's reservations, declarations and understanding to the Covenant. It believes that, taken together, they intend to ensure that the United States has accepted what is already law of the United States. The Committee is particularly concerned at reservations to article 6, paragraph 5, [exempting the United States from the prohibition of juvenile executions] and article 7 of the Covenant, [limiting the prohibition against "cruel, inhuman or degrading treatment or punishment" to the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth or Fourteenth Amendments] which it believes to be incompatible with the object and purpose of the Covenant.
148. Vienna Convention, supra note 47, art. 19(c).
149. General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, Gen. Cmt. No. 24(52), Nov. 2, 1994, U.N. Doc. CCPR/C./21/Rev. 1/Add. 6 at 6-7.
150. It is unclear how far the Committee intends to press this point because in its response to the U.S. report the Committee has urged the United States to withdraw its reservations to Articles 6(5) and 7, an action that would be unnecessary if those reservations were a nullity. See Consideration of Reports, supra note 141, at 6.
151. Letter of the Legal Advisor, Department of State to the Chair of the Human Rights Committee, Mar. 28, 1995, at 3-4.
152. In his first report on the law of treaties, Sir Hersch Lauterpacht noted that "the subject of reservations to multilateral treaties is one of unusual - in fact baffling -complexity and it would serve no useful purpose to simplify artificially an inherently complex problem." Like an echo almost 30 years later, Paul Reuter noted in turn: ". . . the question of reservations has always been a thorny and controversial issue, and even the provisions of the Vienna Convention may not have eliminated all these difficulties." Alain Pellet, Special Rapporteur, First Report on the Law and Practice Relating to Reservations to Treaties, U.N. Doc. A/CN.4/470, May 30, 1995 at 45. Noting that both the European Commission on Human Rights and the European Court of Human Rights have taken the same view as the Committee regarding their own competence to determine validity of reservations, Professor Pellet agrees that special problems arise with human rights treaties. Id. at 63-64. The Committee on the Rights of the Child, the monitoring body under the Children's Convention, supra note 13, also passes on the acceptability of reservations but does not invoke the object and purpose standard. See, e.g., Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention. Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland. U.N. Doc. CRC/C/15/Add. Jan. 14, 1995, at 2: "In particular, the Committee is concerned that the reservation relating to the application of the Nationality and Immigration Act does not appear to be compatible with the principles and provisions of the Convention, including those of its art. 2, 3, 9 and 10." Since article 51 of the Children's Convention, supra note 13, makes impermissible reservations that are "incompatible with the object and purpose of the present Convention" it is unclear whether the Committee's reference to principles and provisions is merely intended to express disapproval or to invoke the ban of article 51. Opponents of U.S. ratification of the Children's Convention read the Committee as using article 51 here and foresee it as likely that domestic courts would honor the Committee's use of article 51 to invalidate United States reservations. See, e.g., Letter from Michael P. Farris, President of the Home School Legal Defense Association to U.S. Senator Ben Nighthorse Campbell, Feb. 16, 1995, at 3.
153. In the General Comment, the Committee sees the prohibition of juvenile executions as a violation of customary international law. See supra note 145. Such a customary rule would not apply to the United States, however, since the long-standing practice in favor of juvenile executions in the United States would qualify the United States as a dissenting state. "Although customary law may be built by the acquiescence as well as by the actions of states . . . and becomes binding on all states, in principle a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures." RESTATEMENT, supra note 9, § 102, cmt. d. It is clear, however, that the Committee sees the object and purpose test as encompassing more than violations of customary law. Id.
154. See Richard B. Lilich, Invoking International Human Rights Law in Domestic Courts, 54 U. CIN. L. REV. 367, 408 (1985).
155. 151. Id. at 412.
156. 138 CONG. REC. S4783 (daily ed. Apr. 2, 1992).
157. See N.Y. TIMES, Oct. 8, 1996, at 1, describing the inadequate housing in New York City including conditions in which cockroaches lay their eggs in the noses of children.
158. Office of the Assistant Secretary for Human Rights, Democracy and Labor.
159. See, e.g., the establishment in New York in 1996 of a Center for Economic, Social and Cultural Rights. See May, 1996 report, U.N. Sanctioned Suffering, A Human Rights Assessment of United Nations Sanctions on Iraq (urging that the Security Council is bound to respect human rights standards in carrying out its duties).