Bulletin #54    United Nations Convention – Part 1                                   08/31/2006

 

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 United States’ ratification of that Convention.  We hope that readers will further investigate this issue and enlighten others, in turn. We broke this up into three parts because this would otherwise be a rather lengthy bulletin.  This first part deals with definitions. The issue is complicated, has some historical background, and requires some time to read through and understand.  We hope that you will take the time because this is a very important issue, affecting our children, and our sovereignty.

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://www2.ohchr.org/english/law/crc.htm

By that it means “nations” rather than what we think of in America as our “states”.  For the sake of clarity in this bulletin, we will use the term “nations”.  We will quote from the United Nations information using its terminology, but keep in mind that it is referring to “nations.”

 

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 America, we look first to the U.S. Constitution for our rule about treaties.

 

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 United States.  It says, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”

 

Article III defines the powers of the judicial branch.  Article III, section 1 says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior…”

 

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 United States, and Treaties made, or which shall be made, under their Authority…”

 

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 United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

 

In essence, the US Constitution lays the following framework: 

 

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 United States, shall be the supreme law of the land.

 

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