International Law and the Child, 100 Years Later : A Dichotomous History of Children’s Rights, Protections, and Freedoms

Abstract

A century after the 1924 Declaration on the Rights of the Child, the shape of international children’s rights has transformed from its “children as property” past to its right affirming and empowering present. From the Child Savers of the Twentieth Century to Eleanor Roosevelt’s championing of UNICEF, the United States has been instrumental in crafting and expanding the field of international children’s rights. Yet, the United States is the only country not to have ratified the Convention on the Rights of the Child (UNCRC). The United States has a longstanding preference for negative rights over positive rights, rooted in the deontological originalism of the Constitution. The UNCRC, however, necessarily includes both positive and negative rights to protect children from the state and, when needed, their legal guardians. It recognizes the indivisibility of rights and blurs the distinction between the public and the private, children’s autonomy and parental rights, and theories of natural rights and social justice. Where did the international child rights movement and the United States part ways, and why? At what point did support for positive rights for children gain international traction and dissuade the one country that so consistently supported greater protection of and for children from ratification? This Article aims to answer these questions through an exploration of how the international sociopolitical landscape changed to accommodate children as rights holders, how various human rights conventions, declarations, and covenants have impacted the field of international rights of and for children, and why the United States remains a ratification outlier.