NHELD does
not believe in fear mongering. NHELD
believes in the distribution of facts so that individuals can formulate their
own opinion. Through this bulletin and
the two which will follow, NHELD hopes to distribute facts about the United
Nations’ Convention on the Rights of the Child.
NHELD also offers its opinion in this bulletin about the possible
effects of
Did you know: While the United Nations goals
may be laudable, implementation of rules to achieve those goals may threaten
the right of parents to homeschool in accordance with state law?
In order to
understand the Convention, a certain amount of context is provided.
On its website and in its communications, the United Nations
speaks in terms of “states”. http://www.unhchr.ch/html/menu3/b/k2crc.htm
By that it
means “nations” rather than what we think of in
There are
terms that you should know found on http://untreaty.un.org/English/guide.asp
The United Nations defines the term,
“treaty”, as follows:
“The
term "treaty" can be used as a common generic term or as a particular
term which indicates an instrument with certain characteristics.
(a)
Treaty as a generic term: The term "treaty" has
regularly been used as a generic term embracing all instruments binding at
international law concluded between international entities, regardless of their
formal designation. Both the 1969 Vienna Convention and the 1986 Vienna
Convention confirm this generic use of the term "treaty". The 1969
Vienna Convention defines a treaty as "an international agreement
concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation". The 1986 Vienna Convention
extends the definition of treaties to include international agreements
involving international organizations as parties. In order to speak of a
"treaty" in the generic sense, an instrument has to meet various
criteria. First of all, it has to be a binding instrument, which means that the
contracting parties intended to create legal rights and duties. Secondly, the
instrument must be concluded by states or international organizations with
treaty-making power. Thirdly, it has to be governed by international law.
Finally the engagement has to be in writing. Even before the 1969 Vienna
Convention on the Law of Treaties, the word "treaty" in its generic
sense had been generally reserved for engagements concluded in written form.
(a)
Treaty as a specific term:
There are no consistent rules when state practice employs the terms
"treaty" as a title for an international instrument. Usually the term
"treaty" is reserved for matters of some gravity that require more
solemn agreements. Their signatures are usually sealed and they normally
require ratification. Typical examples of international instruments designated
as "treaties" are Peace Treaties, Border Treaties, Delimitation
Treaties, Extradition Treaties and Treaties of Friendship, Commerce and
Cooperation. The use of the term "treaty" for international
instruments has considerably declined in the last decades in favor of other
terms.”
The United Nations
defines the term, “agreement”, as follows:
“The
term "agreement" can have a generic and a specific meaning. It also
has acquired a special meaning in the law of regional economic integration.
(a)
Agreement as a generic term: The 1969 Vienna Convention on the Law of Treaties
employs the term "international agreement" in its broadest sense. On
the one hand, it defines treaties as "international agreements" with
certain characteristics. On the other hand, it employs the term
"international agreements" for instruments, which do not meet its
definition of "treaty". Its Art.3 refers also to "international
agreements not in written form". Although such oral agreements may be
rare, they can have the same binding force as treaties, depending on the
intention of the parties. An example of an oral agreement might be a promise
made by the Minister of Foreign Affairs of one State to his counterpart of
another State. The term "international agreement" in its generic sense
consequently embraces the widest range of international instruments.
(b)
Agreement as a particular term: "Agreements" are usually less formal
and deal with a narrower range of subject-matter than "treaties".
There is a general tendency to apply the term "agreement" to
bilateral or restricted multilateral treaties. It is employed especially for
instruments of a technical or administrative character, which are signed by the
representatives of government departments, but are not subject to ratification.
Typical agreements deal with matters of economic, cultural, scientific and
technical cooperation. Agreements also frequently deal with financial matters,
such as avoidance of double taxation, investment guarantees or financial
assistance. The UN and other international organizations regularly conclude
agreements with the host country to an international conference or to a session
of a representative organ of the Organization. Especially in international
economic law, the term "agreement" is also used as a title for broad
multilateral agreements (e.g. the commodity agreements). The use of the term
"agreement" slowly developed in the first decades of this century.
Nowadays by far the majority of international instruments are designated as
agreements.
(c)
Agreements in regional integration schemes: Regional integration schemes are
based on general framework treaties with constitutional character.
International instruments which amend this framework at a later stage (e.g.
accessions, revisions) are also designated as "treaties". Instruments
that are concluded within the framework of the constitutional treaty or by the
organs of the regional organization are usually referred to as
"agreements", in order to distinguish them from the constitutional
treaty. For example, whereas the Treaty of Rome of 1957 serves as a
quasi-constitution of the European Community, treaties concluded by the EC with
other nations are usually designated as agreements. Also, the Latin American
Integration Association (LAIA) was established by the Treaty of Montevideo of
1980, but the subregional instruments entered into under its framework are
called agreements.”
The United Nations defines the term,
“convention”, as follows:
“The
term "convention" again can have both a generic and a specific
meaning.
(a) Convention as a generic term: Art.38 (1) (a)
of the Statute of the International Court of Justice refers to
"international conventions, whether general or particular" as a
source of law, apart from international customary rules and general principles
of international law and - as a secondary source - judicial decisions and the
teachings of the most highly qualified publicists. This generic use of the term
"convention" embraces all international agreements, in the same way
as does the generic term "treaty". Black letter law is also regularly
referred to as "conventional law", in order to distinguish it from
the other sources of international law, such as customary law or the general
principles of international law. The generic term "convention" thus
is synonymous with the generic term "treaty".
(b) Convention as a specific term: Whereas in
the last century the term "convention" was regularly employed for
bilateral agreements, it now is generally used for formal multilateral treaties
with a broad number of parties. Conventions are normally open for participation
by the international community as a whole, or by a large number of states.
Usually the instruments negotiated under the auspices of an international
organization are entitled conventions (e.g. Convention on Biological Diversity
of 1992, United Nations Convention on the Law of the Sea of 1982, Vienna
Convention on the Law of Treaties of 1969). The same holds true for instruments
adopted by an organ of an international organization (e.g. the 1951 ILO Convention
concerning Equal Remuneration for Men and Women Workers for Work of Equal
Value, adopted by the International Labour Conference or the 1989 Convention on the Rights of the Child, adopted by the General
Assembly of the UN).”
Essentially, then, the Convention is
a treaty that many nations have agreed upon, ratified, or signed in some
manner. Each nation has its own laws
concerning how treaties are agreed upon or ratified. Each nation also has its
own laws concerning how a treaty affects its laws.
In
Article I,
section 10 of the Constitution says, “No State shall enter into any Treaty…”
Article II,
section 2, defines the powers of the President of the
Article III
defines the powers of the judicial branch.
Article III, section 1 says, “The judicial Power of the
Article
III, section 2 says, “The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the
Article VI
says, “This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
The Ninth
Amendment to the Constitution says, “The enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others retained by
the people.”
The Tenth
Amendment to the Constitution says, “The powers not delegated to the
In essence, the
The
Constitution enumerates certain powers granted to the various branches of the
federal government. Powers not so
enumerated are reserved to the States and to the people.
The
Constitution specifically prohibits states from entering into treaties.
The
Constitution grants the power to enter into treaties to the President, and to
the Senate.
The
President may enter the treaty, but two-thirds of the Senators must concur
before the treaty is ratified.
The
Constitution grants power to the judicial branch in cases arising under
treaties.
The
Constitution provides that the Constitution, itself, the laws made in pursuance
of the Constitution, and all treaties made under the authority of the
It is this
last provision of the Constitution that may prove problematical.
A treaty, along with the
Constitution, is the supreme law of the land.
Even though
the Constitution does not specifically grant to the judicial branch the power
to “interpret the meaning of the Constitution”, nonetheless, the judicial
branch does just that. (Supreme Court
Justice John Marshall took it upon himself in a case called Marbury v.
Madison, to declare that the judicial branch had that power.)
The Supreme
Court has “interpreted” the meaning of the Constitution regarding the effect of
treaties in a number of cases throughout our history. Taking the time to read
those cases is most edifying. You can find Supreme Court cases at: http://www.supremecourtus.gov/
The question remains: What effect
does a treaty have on state law when the treaty conflicts with state law?
(Put another way: To what extent may a treaty authorize national
regulation of local affairs not otherwise reachable under the specific grants
of power in the Constitution?)
We will
continue discussing that point in our next bulletin (bulletin #55).
Attorney Deborah Stevenson - Executive Director of National Home
Education Legal Defense. – www.nheld.com or email : info@nheld.com
Judy Aron -
Director of Research, NHELD – imjfaron@sbcglobal.net