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