Cynthia Price Cohen, the Role of the United States in the Drafting of the Convention on the Rights of the Child

• Citation: Vol. 20 No. 1
• Publication year: 2006

THE ROLE OF THE UNITED STATES IN THE DRAFTING OF THE CONVENTION ON THE RIGHTS OF THE CHILD

Cynthia Price Cohen^*

INTRODUCTION

Adopted by the United Nations General Assembly on November 20, 1989,¹the Convention on the Rights of the Child (Convention) has received precedent-setting global support. On the day that it was opened for signature, more nations participated in the signing ceremony than any previous U.N. human rights treaty.²It went into force more quickly and received more ratifying votes than any other U.N. human rights treaty.³In addition, the Convention, more than any other treaty, nearly replicates the wide range of rights envisioned in the 1948 Universal Declaration of Human Rights.⁴

It is indisputable that the United States played a pivotal role in the drafting of the Convention and, thus, in changing the world for children.⁵Sadly, however, U.S. leadership in developing children's rights ended in 1989. Because the United States has never ratified the Convention it cannot become a member of the Committee on the Rights of the Child, the Convention's monitoring body.⁶Therefore, the United States can no longer materially influence the interpretation of this instrument that it fervently labored to create.

By looking, first, to the divisive world political environment of the time, and, second, to the origins of the Convention, the expansion of its provisions, and the accompanying procedures for adoption of these provisions, this Essay examines the United States' prominent and influential participation in the drafting of the Convention. This Essay then turns to an evaluation of the substantial role played by NGOs and the implementation mechanisms that support the Convention today. In conclusion, this Essay asks, "What is next for the United States?" now that nearly the entire world community stands opposite its continued refusal to ratify the Convention.

I. DRAFTING ENVIRONMENT

True appreciation of the United States' influence on the drafting of the Convention requires an understanding of the international political environment of the time. The Convention was developed during the final stages of the Cold War, when Belarus⁷and Ukraine⁸remained part of the Soviet Union and Germany was divided into East (GDR) and West (FRG).⁹

Indeed, the world was essentially drawn on opposing sides. The Soviet sphere of influence (the Eastern Bloc) included East Germany, Czechoslovakia, Hungary, Bulgaria, Romania, Yugoslavia, Albania, the Baltic States (Latvia, Estonia and Lithuania), and Poland. The Western group included, among others, the United Kingdom, Ireland, the Netherlands, Belgium, France, Spain, Portugal, Italy, West Germany, Australia, Canada, Austria, and the United States.

Drafting of the Convention was the product of a Polish proposal to create a treaty protecting children's human rights in celebration of the 1979

International Year of the Child (IYC)-an event that was undertaken to spotlight and evaluate the situation of children around the world.¹⁰As might be expected, the divisive political environment significantly influenced the drafting of the Convention. Because Poland proposed the Convention, the international community largely viewed this effort as an Eastern Bloc initiative.

Poland, however, had independent reasons for pressing for a children's rights treaty. It had a long history of supporting the idea of a children's rights treaty.¹¹In 1959, when the United Nations General Assembly was drafting the Declaration of the Rights of the Child,¹²the Polish delegation had advocated for the protection of children's rights through an enforceable treaty rather than an unenforceable declaration. According to Adam Lopatka, Polish law professor and chairman of the Working Group that drafted the Convention, by

1979 the Polish government felt that the situation of its children was sufficiently beyond reproach to allow it to once again propose drafting a treaty on the rights of children. This effort would also set Poland apart from other Eastern Bloc members as the only country to undertake the drafting of a human rights instrument-a significant achievement for a nation on the verge of emerging from the Soviet shadow.

Over the ten years that followed, an Open-Ended Working Group of the Commission on Human Rights drafted the Convention. Although the Working Group was convened under the auspices of the Commission, all Member States of the United Nations were free to participate. Therefore, frequent changes in Commission membership did not affect participation in the drafting process. Additionally, non-Member States such as the Holy See and Switzerland, a group of nongovernmental organizations, and a number of intergovernmental bodies participated in the process as observers.

The Working Group typically met for one week each year during the last week of January, just prior to the Annual Session of the Commission. The first few years of meetings, however, were not accompanied by much international enthusiasm for the Convention. It was not until 1983 that the international community's general interest in the Convention began to grow and, accordingly, participation in the Working Group gradually increased to include additional States and nongovernmental organizations.

Over time, this growing interest led approximately eighty nations to participate in the Working Group. These nations sent delegates from a variety of governmental offices: departments of education, departments of consumer affairs, departments of health, and departments of justice, to name a few. Whereas some countries annually returned seasoned representatives to the Working Group, others adhered to an ad hoc process, each year sending different representatives to serve on these States' delegations. Beginning in

1983, Finland, Norway, the Netherlands, Austria, and the United Kingdom all maintained continuity in their representation throughout the life of the Working Group. While the United States sent a representative from the Department of State Office of the Legal Advisor to participate in every session, it experienced regular turnover in representation, with only two representatives attending more than one session.¹³The United States tended to send younger lawyers as its representatives. In fact, of the five U.S. representatives from

1983 to 1989, only one of them was married, none of them had children, and only one had any relevant background in a field related to children's rights.

It should also be remembered that the Working Group drafted the Convention during the conservative Reagan administration, which had adopted a generally negative attitude toward this perceived Eastern Bloc treaty. In

1983, for example, the U.S. delegate essentially stated that the United States would never ratify the Convention but was participating in the drafting process primarily so that these other countries would have a better treaty.¹⁴This statement aptly foreshadowed subsequent developments. The United States remains one of only two nations in the world that have not ratified the Convention; Somalia, which currently does not have a functioning government, is the other. Even the U.S. trust territories of the Marshall Islands and Solomon Islands are States Parties to the Convention. Yet, despite the United States' failure to ratify the convention, any strong proponent of individual rights is likely to agree that U.S. participation in the drafting of the Convention radically improved the status of children.

II. DRAFTING PROCESS

The Working Group began its efforts by using a draft model convention that the Polish government had submitted to the Commission. This first Polish model convention was essentially a replica of the 1959 Declaration, merely tacking on a brief implementation mechanism at the end.¹⁵After the

Commission rejected this first model, Poland submitted a second, slightly longer, and more legally enforceable model.¹⁶This second model convention provided the first indicators of the emergence of children as...